The Daily Judge

BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there.

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

Blatz blazts politicization of judicial campaigns. "Minnesota Chief Justice Kathleen Blatz said no one should have to worry that her case will be heard by a judge affiliated with her opponent's political party, or that the judge will have taken a position on the issue before hearing the facts in the case, or that the judge may be influenced by campaign contributions from interests on the other side of the issue. 'Every Minnesotan needs to know that the courts are not the battlefields of partisan politics but are safe refuges for people experiencing some of the most troubling issues of their lives,' Blatz, a former Republican legislator who will retire next year, wrote in a 2000 letter to the state GOP saying she would not accept its endorsement...." Judge races could soon get nasty (St. Paul Pioneer-Press 10.24.2005). Comment. All said, apparently with a straight face, by the well-known Republican who:

a) ran as a Republican on her Republican father's well-known name at a very young age to get elected to the legislature from her hometown;

b) was appointed to the district court by her political friend, Republican Governor Arne Carlson, who himself owed his election to a controversial decision by the state supreme court that embittered his opponent, incumbent DFL Governor Rudy Perpich [Clark v. Growe, 461 N.W.2d 385 (Minn. 1990)];

c) was appointed to the supreme court shortly thereafter by her political friend, Republican Governor Arne Carlson;

d) was appointed chief justice of the supreme court shortly thereafter by her political friend, Republican Governor Arne Carlson;

e) allowed her campaign people in 2000 to solicit cash contributions ($120,000 - $130,000) from lawyers, etc., and endorsements from politicians and holders of partisan political offices (just not from political parties);

f) is married to well-known Wayzata Republican financier and party activist, Wheelock Whitney;

f) has long been rumored to have further political ambition, although she has either denied it or not confirmed it.

Blatz's comments appear in an article indicating that the longtime opponents of free speech in Minnesota judicial elections have not given up but are seeking review by the U.S. Supreme Court of the decision last summer by the Eighth Circuit, see, infra, striking down the Minnesota Supreme Court's judicial campaign rules.

Query: Is it "proper," in the rarefied world of judicial ethics, for Chief Justice Blatz to make these comments while the case is still pending? Offhand, we don't know "the answer" (as if there is but one answer). Speaking hypothetically, we think a) it clearly would be improper for, say, a lower court judge to ask to talk with a judge considering an appeal of a decision by that judge (it also clearly would be improper for the appellate judge to talk with the lower court judge), and b) it is not that different for the lower court judge in the above hypothetical to speak out publicly on the merits while the appellate court is considering the appeal. One possible distinction in the instant case, we suppose, is that Blatz is speaking to a Minnesota audience and not in any way trying to influence the U.S. Supreme Court in its consideration of the case. Another possible distinction is that it's not a case from her court she wants upheld but a case from the Eighth Circuit she presumably hopes is overturned. We're not troubled by her speaking out, but then we believe in the broadest possible interpretation of the First Amendment free-speech guarantee. For background reading, here's a link to the MN Rules of Judicial Conduct.

Here's our posting when the Eighth Circuit's decision was announced in August:

MN. Supreme Court reversed again on free speech. "[The Eighth Circuit Court of Appeals, sitting en banc,] today overturned Minnesota's rules on the way judges can campaign for office...The court said a Minnesota Supreme Court Canon of Judicial Conduct that prohibited judges from identifying themselves as members of a political organization; attending political gatherings, and accepting endorsements from political organizations violated the First Amendment...[The court,] in an 80-page ruling, said of Minnesota's rules, 'The facts of this case demonstrate the extent to which these provisions chill, even kill, political speech and...rights.'" More (Minneapolis Star-Tribune 08.03.2005). Text of opinion. Comment. I have long believed that, historically, our state supreme court here in Minnesota is one of the best of the fifty state supreme courts. But there are areas in which, historically, it has been a weak court. The most glaring example, perhaps, is in the area of free speech. Near v. Minnesota, 283 U.S. 697 (1931), reversed our state court's unanimous decision upholding the so-called Minnesota "gag law," which allowed prior restraint of free speech. Sadly, there've been several important free speech cases since then where the court has missed the boat. A gadfly named Greg Wersal, whose views of the role of judge don't necessarily coincide with mine, has courageously waged a battle of several years against our state supreme court's unconstitutional gag on campaign speech by people who have the audacity to run against a sitting judge. He won in Republican Party of MN v. White, 536 U.S. 765 (2002). But our court doesn't seem to have gotten the message, and Wersal has had to continue the battle -- and has won again. For this, I, for one, am thankful, even though as a judicial candidate I didn't and would never seek or accept either party endorsement (banned until now) or individual endorsements of politicians (something incumbents regularly have done). The fact one has a right to do something, doesn't mean one ought to do it. Sadly but predictably, the response from some members of the local judicial-media-bar complex reminds some of us of Chicken Little's response to getting hit on the head with an acorn -- "The sky is falling!" But the sky is not falling. See, one of my earlier entries on the issues decided, Walt Whitman on Minnesota Supreme Court's foray into censorship at BurtLaw's Law & Judicial Elections. Nor does the decision justify Minnesota in abandoning its current system of selecting/electing judges or in any way constitute a necessary threat to judicial independence. On former, see, Whitman, supra; on the latter, see, BurtLaw on Judicial Independence and Accountability.

And, consider my comments last summer on comments similar to those by C.J. Blatz by the state bar president in response to the Eighth Circuit's decision:

Free speech is a 'bad idea'? Susan Holden, President of the Minnesota Bar Association, representing the state's lawyers -- who, come election time, seemingly always support, with endorsements & cash contributions, every governor's typically-political judicial picks against their challengers -- doesn't actually say free speech is a bad idea. Or does she? You decide for yourself. This is the opening sentence of her opinion piece in today's Minneapolis Star-Tribune opposing the Eighth Circuit's en banc decision several days ago (click here) reaffirming the free speech rights of judicial candidates: "A federal appeals court decision last week gave us something that may be legal, but is a really bad idea for a lot of reasons." Hmm. I can't help thinking she just doesn't like judicial challengers to have the same rights that judicial appointees have long had prior to their appointment....

More (BurtonHanson.Com 08.08.2005).

Sandra Day O'Connor on MN's judicial election rules. "Justice Sandra Day O'Connor said the rule curbed challengers, while leaving incumbent judges free to express their views in the form of judicial opinions. 'It's kind of an odd system, designed to -- what? -- maintain incumbent judges?' she asked Mr. Gilbert." More at The judicial incumbents' bill of rights? at BurtLaw on Law and Judicial Elections (scroll down).

Conned by a fake judge, fake orders, fake verdicts, etc. "The Anti-Terrorist Squad arrested Rajesh Ghanekar (41) on Saturday, after he was found to frequent sensitive areas like the BMC and several courts with an amber light on his car. When he was intercepted on the Sion-Trombay road, he identified himself as a high court judge. Senior Inspector Sanjay Khaire said, 'We went through his ID cards and realised they were fake.' Ghanekar is in fact a former BMC telephone operator, and once served 17 months in jail for cheating. No one was more shocked at Ghanekar’s arrest than Eleanor Sarah Dharmaraj (84), who considered him a close friend and advisor...." Read on (Mid-Day 10.24.2005).

More on California's Prop. 77. Yesterday's (10.23.2005) NYT Magazine has a good piece in the "Idea Lab" section titled Who Should Redistrict? by Dean E. Murphy addressing some of the issues raised by California Proposition 77, which would take away redistricting from gerrymandering-happy legislators and give it to a three-judge panel of retired judges. Earlier: What does Proposition 77 say about retired judges?

Moving English judicial paraphernalia to Zambia. "The paraphernalia of an English court is due to be moved to Zambia next year in the face of a ruling handed down by Mr Justice Peter Smith...Smith J dismissed the application and decided, for the benefit of the Zambian defendants, that part of the evidence would be heard in Zambia. Video links will be used to keep the parties updated with proceedings in both Zambia and England, where most of the case will be heard next year...." More (The Lawyer 10.24.2005). Comment. "Judicial paraphernalia"? Hmm. Sounds almost obscene.

Courthouse as dance hall. "On Saturday night, Harnett County’s modern courthouse was whisked back in time to the Old South for a Harvest Ball that formed part of the county’s Sesquicentennial celebration. The exquisitely costumed guests strolling up the courthouse stairs evoked images of magnolia blooms, the sweet smell of honeysuckle and plantations with white column porches...." More (Dunn Daily Record 10.24.2005).

Applicants for top judge job balk at essay requirement. "Senior judges bidding for the top job in Scotland have been asked to write an essay as part of the application process. A panel of experts has been appointed to select a successor to Lord Cullen, the Lord Justice General and Lord President of the Court of Session, who retires next month. But their request that applicants submit a written piece about the future challenges for the new Lord President was reported to have caused a stir in senior legal circles and even dissuaded some from applying...." One judge is quoted as saying the requirement is "demeaning." More (The Scotsman 10.22.2005). Comment. Your Honor, would you stoop so low as to fill out a questionnaire? Might some of 'em fear their writing won't hold up? -- to which David Brooks of the NYT op/ed page might acidly reply, "Harriet Miers can't write and that didn't bother President Bush." See, How good a writer is Harriet Miers? Does it matter? How much? If some of 'em don't feel they're good writers, that'd surprise me, because many (even most?) judges (and law clerks) who aren't good writers, think they are. I used to think the application process for appellate judges ought to include a one-day exam: lock the applicants in a law library and give each of them a relatively easy non-ideological appeal (short transcript and briefs) and ask them to use the library's resources, including computer databases, to write an opinion of seven double-spaced pages or less. The opinions would be judged anonymously by experienced out-of-state appellate judges widely recognized as good opinion writers -- and would be public documents, along with the rest of their applications. In my opinion, no applicant with modest confidence in his or her qualifications ought to feel "demeaned" by such a process, assuming the results are but one factor in selection.

Panel urges district judge be reprimanded. "Hinds County Justice Court Judge Ivory Britton should be publicly reprimanded for having improper [ex parte] communication in two civil cases, the state's judicial watchdog group says...." More (Jackson Clarion Ledger 10.22.2005). Comment. It's very easy for a busy judge to unthinkingly violate the prohibition against ex parte communications. The same prohibition, of course, applies to judicial aides. As a deputy commissioner at our state supreme court I was required to take calls from attorneys and prisoners and the general public and answer nuts-and-bolts questions about the court and the commissioners office operating procedures but not discuss the merits of pending appeals or planned appeals. I used to have a standard response when someone tried to cross the line: "The judges and their aides don't conduct court over the telephone, blah, blah...." I remember once a public defender wasn't happy with the court's opinion in a case, said she didn't understand it, and wanted me to explain it to her. I told her the opinion spoke for itself and that neither the court nor its aides could give oral (or written) explanations of their written opinions but she was always free to file a proper and timely petition for rehearing. Amazingly, she kept pressing me -- to no effect. Attorneys, too, have an ethical obligation not to violate the prohibition or attempt to lead a judge into temptation.

'Enrobing' of judge in 'emotional' ceremony. The headline for the story in today's Orlando Sentinel (10.22.2005) reads: "Judge Allen 'enrobed' in emotional court ceremony." Undoubtedly the "emotional" aspect of the ceremony was appropriate and I see nothing wrong with referring to the ceremonial placing of the robe on the new judge as an "enrobing." But words sometimes set my imagination running. These two quoted ones did:

a) Is "disrobing" to expulsion of a judge as "enrobing" is to the swearing-in (or "investiture," as some have pompously called it) of a judge? One of my favorite movies is Across the Pacific (1942), a romance/adventure/war/spy movie directed by John Huston and starring Humphrey Bogart, Mary Astor, and Sydney Greenstreet that takes place, much of it aboard a Japanese freighter bound for the Panama Canal and beyond, in the months preceding Pearl Harbor. In it there is a scene in which a supposedly-disgraced Rick Leland, played by Bogart, is "court-martialed" and expelled from the army, with his ribbons, etc., being ripped off of his uniform. The above-linked story about the "enrobing" of Judge Allen alludes to the subject that one might well call the "court-martial" of judges: "Early this month the Florida Supreme Court decided to remove Circuit Judge James E. Henson for ethical misdeeds. And this week, a special counsel for the Judicial Qualifications Commission recommended that County Judge Alan C. Todd be suspended without pay for disparaging comments he made to court personnel." Which prompted this thought: Might there be a need for a "disrobing" ceremony when disgraced judges are expelled? I can see it now: one by one the judge's former colleagues come forward and ceremoniously rip-off a part of the robe until it's all in tatters.

b) What is the 'appropriate' degree of emotion at a judicial investiture (and why are some of investitures -- here in Minnesota, for example -- so pompous while the swearing-in of a U.S. Supreme Court Justice is such a modest, semi-private affair)? That's a double question. My answer will be a double answer. It's a free country. In matters of religion, some people prefer a stark form of worship with no music, some prefer the fairly-rigid Episcopalian (Church of England) form, some like to weep and wail, some like to dance and shout, some like to listen to sappy sermons, some like sermons that require a bit of thinking on the hearer's part, etc., etc. I remember when each new judge of the state supreme court here in Minnesota would be sworn-in in the court's courtroom in the capitol, with those in attendance being the other judges on the court, court staff, and friends and family of the judge. The last few ones I attended, in the 1990's when I was deputy commissioner, were the ones known as "investitures" and were held in the huge open atrium of the restored historic old U.S. Federal Court building in St. Paul, with the court of appeals judges and trial judges from around the state marching in comically (to me) as if participants in a Gilbert and Sullivan operetta. Each to his own, although I think it an extravagent waste of tax-payers' money to pull so many sitting judges from their duties for an afternoon or a morning, pay their salaries and expenses for not holding court, etc. If lightning had struck and I'd been elected back in 2000, I'd have had either no ceremony or the old-fashioned modest kind in the courtroom in the capitol. But then I guess I'm a bit eccentric -- one would have to be to run a $100 campaign against a highly-popular well-financed sitting judge knowing one had no reasonable chance of getting elected.

Two new judges named in buy-an-appointment scandal. "Two more judges' names have surfaced as targets of a probe into Brooklyn's justice-for-sale scandal. Sources say prosecutors want to hear what disgraced former Brooklyn Democratic Party boss Clarence Norman has to say about Supreme Court Justices Howard Ruditzky and Allen Hurkin-Torres, suspected of paying tens of thousands of dollars to get on the bench. Ruditzky allegedly complained to associates that he had to spend $100,000 for his seat in 2002, which Norman helped him get just weeks after Ruditzky lost a Civil Court primary...." More (N.Y. Post 10.22.2005). Related story: 'Pay 50G' and be a judge (N.Y. Post 10.20.2005) ("Brooklyn prosecutors are targeting up to 10 judges they suspect paid to get on the bench -- and told former Democratic boss Clarence Norman he'd better dish on alleged dirty jurists if he wants a plea deal, The Post has learned."). Comment. The word "prostitution" comes to mind, but who is the prostitute when one buys a judgeship and who is the "John"? Some Marxians, feminists, anarchists and other economists and/or political theorists have sometimes spoken of "prostitution" as just one end of a continuum of economic arrangements between men and women in the ongoing war of the sexes and some have also compared the role of the woman in some so-called traditional marriages as akin to that of a prostitute. It might be interesting if some of them were to devote some of their thinking to articulating a continuum of the ways in which one gets a judgeship for oneself, from proper to improper or vice-versa, with buying one for cash as being one of the more blatantly improper ones at the far-right (or far-left, if you prefer) end of the continuum. Something that also might stimulate the creative juices is this politically-incorrect but maybe not Biblically-incorrect list with the self-explanatory title of The Top 14 Biblical Ways to Get a Wife (Example: "10. Become the emperor of a huge nation and hold a beauty contest...Esther 2:3-4").

D.A. asks underlings to report on judge's behaviour. "Dallas County District Attorney Bill Hill is asking all of his prosecutors for information "about specific instances of misconduct or perceived misconduct" by embattled state District Judge Manny Alvarez. The request, made in an e-mail that was leaked to the judge, escalates a fierce battle over his support for a baby sitter whom a jury in his court recently convicted of child abuse. 'It's retaliation,' Judge Alvarez said Friday...." More (Dallas Morning News 10.22.2005). Earlier (Dallas Morning News 10.22.2005) ("A defiant judge [Manny Alvarez] said Wednesday that he did nothing wrong by performing defense attorney-like research during a recent trial and, after a jury convicted the defendant of child abuse, pledging to help her avoid prison. 'I did the work that I would have expected the defense attorney to do. I did more research [than the lawyer]...I don't apologize for that."). Comment. In my 28+ years as an aide (law clerk and then deputy commissioner) at the Minnesota Supreme Court I prepared advisory memoranda on thousands of appeals, many of them criminal ones, and I always read the complete trial transcript, no matter how seemingly easy the case. Occasionally when one does that work, one comes upon issues the defense attorney arguably should have raised but didn't raise or, to give another example, comes upon facts suggesting ways of properly disposing of the case without reaching the issues raised. And in every case one must independently research the issues raised. To do less would have been to fail to give the judges (and indirectly the public) good weight. Whether the trial judge in question did something inappropriately beyond the normal and proper is something some believe merits further inquiry. Whether the D.A.'s e-mail solicitation was proper is also something that now may merit further inquiry. We express no opinion.

Judge keeps court open 'til 7 p.m. to help working folks. "Over the last month on every Tuesday, Knapp’s court -- which serves the eastern half of the borough -- has kept its doors open an extra two and a half hours out of courtesy to those who have trouble getting to her office during the day. Whereas Knapp’s court used to close at 4:30 p.m. on Tuesdays -- just as every other Chester County district court does every day of the week -- it now remains open until 7 p.m. We give Roses to Magisterial District Judge Gwenn S. Knapp for amending her schedule and keeping the working woman and man in mind...." More (Chester Daily Local - Editorial 10.22.2005).

Why no female judges? "It appears the gospel of gender equality sweeping across the country and indeed, the globe is yet to make any impact in three states of the federation – Jigawa, Katsina and Nasarawa states. These three states are said to be without female judges, out of the nation’s 36 states and the Federal Capital Territory (FCT), Abuja. This mind-bugging revelation came from no less a personality than the Chief Justice of Nigeria, Justice Mohammed Uwais...." More (The Tide - Editorial 10.22.2005).

Judge denies threatening defendant with baseball bat. "Judge Marvin Arrington apparently had reached his limit with Gary Lee Carroll [36], who was in Fulton County Superior Court to defend himself against charges of threatening and stalking his ex-wife [as well as] threatening court officials and his ex-wife with a baseball bat...'You all go back there and get my Hank Aaron baseball bat,' Arrington instructed his staff from the bench, according to a transcript of the Sept. 29 bond hearing...." Both of Carroll's attorneys saw the bat -- one said he wasn't threatened but the other said the judge "brandished" it and threatened Carroll. The judge, who has recused himself from the case (for other reasons, he says), denies threatening anyone. More (Atlanta Journal-Constitution 10.21.2005). Comment. There are objects that in themselves are "dangerous weapons" (e.g., firearms) and other objects that "as used" may fit the definition of "dangerous weapons." We suppose even a gavel conceivably might constitute a "dangerous weapon" of the "as used"-variety. A big wooden baseball bat in Georgia? Click here for results of a Google search and decide for yourself.

Former head of court files gender discrimination suit against judges, court. "The former head of Amador Superior Court has filed a civil lawsuit against judges David Richmond and Susan Harlan, claiming she was discriminated against because of her gender for more than four years, among other charges...The complaint cites several examples of how Richmond allegedly singled Agatha out, such as holding administrative-level meetings with only men and intentionally leaving her out; dismissing her complaints about the way he allegedly treated her and verbally attacking her or mocking her to the point that she would leave his office visibly distressed and crying; and continually circumventing her authority as CEO by seeking the advice of...a subordinate employee of Agatha’s...." More (Amador Ledger-Dispatch 10.21.2005).

Republican DeLay, prosecuted by Democrat, complains judge is Democrat. "Rep. Tom DeLay appeared in court Friday for the first time since his indictment, but arraignment on conspiracy and money laundering charges was delayed pending a hearing on his request for a new judge...In a courtroom session that ran less than 10 minutes, [DeLay's attorney] noted that [the judge] had donated money to MoveOn.org, a liberal organization...." More (ABC News 10.21.2005).

Meanwhile, another Texas judge leaves Democrats, will run as Republican. "Family Court Judge Robin Sage said Thursday she is leaving the Democratic Party to file for re-election as a Republican. Sage has presided for 14 years over the Gregg County 307th District Court. 'With all of our state leadership being Republican and most of our legislators in this area, I just think it will facilitate working with them on laws affecting children and families,' she said...." More (News-Journal 10.21.2005).

Ex-judges told to relinquish judicial license plates. "Two former Rhode Island judges are still driving with judicial license plates, and the state Supreme Court has ordered them returned by Friday. Aurendina G. Veiga, 47, resigned as a magistrate for the state's Traffic Tribunal because ethics violations and a refusal to take an ethics course. Marjorie R. Yashar, 65, retired as of Sept. 27 as a judge on the tribunal after being disciplined for conduct demeaning her office and a serious ethics complaint...." More (UPI 10.20.2005). Comment. If I were a judge I wouldn't want license plates on my car identifying me as a judge.

Man charged with extortion in attempt to force judge to resign. "An Oakland County [MI] man faces a felony charge of extortion on an accusation that he threatened to publicly allege that a judge had an extramarital affair unless she resigned. Authorities say Randall Blair, 38, of Clarkston, sent the threat via e-mail to Oakland Circuit Court Judge Cheryl A. Matthews [41] in August, giving her a 48-hour deadline to step down from the bench...Blair is president and co-founder of the Michigan Victims of Child Protective Services, a political action committee...." Matthews used to prosecute child sex abuse cases. More (Detroit Free Press 10.21.2005).

Judge in Limerick warns of anarchy and chaos in streets if... "A judge has warned that people in Limerick cannot take the law into their own hands and sort out cases themselves. Judge Carroll Moran said if this was tolerated there would be anarchy and chaos on the street. He was speaking as he imposed suspended jail sentences on three men who kidnapped, threatened and assaulted a Liberian national in the city earlier this year [whom they had mistakenly identified] as the person who carried out a burglary at a house in Dooradoyle..." More (U.TV 10.21.2005).

Meanwhile, Aussie judge says cops should get used to abuse on street. "When Rufus Richardson stumbled out of The Orient Hotel after midnight, rapped on the window of a police car and drunkenly told the occupants 'youse are f***ed' he probably had little concept of the consequences of his actions. But three months later his brief late night run-in with the law in Sydney's historic Rocks area has sparked a heated debate over the perceived decline of community standards in Australia and how police on the beat should expect to be treated in this day and age. Richardson was arrested and charged with offensive behaviour but, far from make an example of the 27-year-old Canberra student, a New South Wales [M]agistrate [Pat O'Shane] threw out the case and astounded police by awarding him $A2600 ($NZ2821) in damages...." The magistrate explained that verbal abuse was something the police should "expect...on George St at that time of night" and, further, she was "not sure there is such a thing as community standards anymore...." More (Stuff.co.nz 10.22.2005). Comment. The rage on the part of some Aussies over the judge's actions/statements reminds me of a New Yorker cartoon of some years ago (possibly by George Booth, if memory serves me correctly) depicting a minister being tossed from his church; on the church sign is the title of the sermon: "Was Mary Magdalene a prostitute?" My brother, as a young man, gave a sermon in the mid-1950's to a youth group at a rural church near my hometown in which he said, in so many words, that Mary was, of course, a prostitute; and the elderly minister, Rev. N. J. Njus, who spoke with a very thick Norwegian accent, took offense and said so. Further reading: Mary Magdalene Saint or Sinner? (Time 08.11.2003 - reproduced at DanBrown.Com).

Latest on judicial corruption scandal in Greece. "A court of first instance judge yesterday became the eighth judicial official to be dismissed this year as authorities try to get to grips with a corruption scandal that has plagued the Greek justice system since January...." More (Ekathimerini 10.21.2005).

The Oxbridge advantage. "The Lord Chancellor has been accused...of being influenced in appointing judges by whether they had been to Oxbridge. In one particular competition for recorders, candidates who were 'male, Oxbridge-educated barristers fared disproportionately well,' according to reports from the Commission for Judicial Appointments. The commission said: 'We also noticed that the Lord Chancellor’s involvement at the end of the process increased the proportion of Oxbridge-educated candidates who were appointed over and above those recommended by officials.' It also noted that candidates known to the senior judiciary appeared 'to be at an advantage,' adding that some senior judges had 'attempted to overturn some of the interview panels’ conclusions.' The report prompted a furious letter from Lord Falconer of Thoroton, the Lord Chancellor, to Sir Colin Campbell, chairman of the commission. It was coupled with an angry rebuttal...." More (London Times 10.20.2005). Links to further reading; Special report: Oxbridge and elitism (UK Guardian Updated). Comment. For those who wish to fully understand life at universities at Oxford that are included, along with universities at Cambridge, in that portmanteau "Oxbridge," we recommend two highly realistic film portrayals: Oxford Blues (1984) ("A young American hustler in Las Vegas [Nick De Angelo played by Rob Lowe] spots a rich English Lady. Smitten, he pursues her to England, where his only chance of getting together with her is to enroll in Oxford and join the rowing team") (IMDB); A Chump at Oxford (1940) ("Reasoning that their lack of education has prevented them from advancing in life, The Boys [Laurel and Hardy] opt for schooling at England's Oxford University. At Oxford, they are the victims of endless practical jokes by their fellow students. When Stan bumps his head on a window sill, he suddenly, miraculously changes personalities to become Lord Paddington, the greatest scholar and athlete Oxford has ever produced") (Laurel and Hardy Central).

The S.M.U. disadvantage. The members of the conservative elite who have been so upset by President Bush's nomination of Harriet Miers tend to be graduates of the so-called elite law schools. Whatever else is muddy, it seems clear if she'd been a graduate of, say, Harvard Law School, as Chief Justice Roberts and several of his colleagues are, the eltists' response would not have been patronizing, as it has been. But she didn't go to Harvard or to one of the other so-called elite law schools. She went to poor little ol' S.M.U., Southern Methodist University, in Dallas, which is where the President's wife, Laura, went -- and where I spent my freshman year in college, during the 1961-1962 school year. For what it's worth, of the three institutions of higher learning I attended -- S.M.U. for one year, the University of Minnesota in Minneapolis (from which I received my B.A. degree in 1964), and Harvard Law School (from which I graduated in 1967) -- S.M.U., which not for no reason was called the "Harvard of the Southwest" by some people, provided me with the most challenging teachers and the best overall educational experience. Moreover, and this is no small matter, something about the spirit of S.M.U. (the spirit of Texas?) brought out the best in me and I worked harder and stretched myself more there than at any other place. If Harriet Miers did well at S.M.U., that is nothing to sneeze at.... I should add, in my nine months at S.M.U., I came to believe that there was a certain "S.M.U.-type of woman." Laura Bush fits the stereotype, and I feel that in some sense I know her. In the same way, I feel I know Harriet Miers, who began studying there shortly after I left. "S.M.U. women," more than women I've met at other schools, seemed skilled in some of the lost, unfairly-discredited arts of femininity. They knew the importance of loving and pleasing "their man," to whom they were fiercely loyal. But I also learned that many of these young women had much of the admirable toughness and independence of Texas in them. Harriet Miers seems to be "one of them" in both respects and I have to say, as if she needed "old gallant Burt" to stand up for her in this way, I think it's wrong to criticize her for her "ladylike"-style and foolish to underestimate her toughness because she's a lady.

For more on BurtLaw at S.M.U., see, my 09.24.2004 entry at BurtonHanson.Com, my political opinion journal" (scroll down).

How good a writer is Harriet Miers? Does it matter? How much? "Of all the words written about Harriet Miers, none are more disturbing than the ones she wrote herself. In the early 90's, while she was president of the Texas bar association, Miers wrote a column called 'President's Opinion' for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn't even rise to the level of pedestrian. Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this: 'More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.'" David Brooks, In Her Own Words (NYTimes 10.13.2005). See, also: Supreme Court nominee is asked to redo response to questions (NYTimes 10.20.2005).

Comments: a) How good a writer is Harriet Miers? It is unfair of Brooks to base his conclusion that she's a bad one on her "President's Opinion" column in the bar rag. It is well known that many bar presidents turn over to aides the task of writing these columns, just as some (many?) supreme court chief justices, at least at the state level, rely on court administrators or court information types to write their annual "state of the judiciary" speeches (one of the sadder of many primarily "p.r." developments in appellate courts in recent years). These columns and speeches, with some exceptions, often read like Miers' columns read. They tend to be written in clumsy, opaque bureaucratise seemingly designed to say little and offend no one. Giving Ms. Miers the benefit of the doubt and assuming she didn't write the columns, we conclude that we don't know what kind of writer she is. But, people in authority who are too busy to write their own stuff or who aren't good writers ought to make sure that the people who write for them can write. One in authority ought never sign one's name to verbal garbage like that extracted by Brooks from Miers' columns.

b) Does it matter whether Ms. Miers can write well? It ought to matter. Joan Didion writes in her memoir of grief, A Year of Magical Thinking (2005), that she writes to learn what she's thinking. Writing about her grief has been a way of experiencing it and understanding it and giving it its due. For many good judges, writing is one of the ways the judges come to understand and decide the case. "Will it write?" "We'll see how it writes." These are some of the expressions judges use to describe the process. Justice Brandeis used to say that what distinguished the U.S. Supreme Court from other government institutions was that "We do our own work." That work used to, and still does with some Supreme Court Justices, include writing their own opinions. Everything else being equal, we believe judges themselves ought to do their own work -- ought to read the briefs, read the transcripts, research the law, read the cases, think for themselves, write the opinions that go out under their names, and write good opinions.

c) How much should it matter? Whether a nominee can write well ought to be one of the factors that make up the proverbial totality of factors or circumstances to be considered in passing judgment on the nominee. But it ought not be conclusive that a nominee cannot write well. Those of us who are students of judging know that a judge who is a good writer is not necessarily a good judge and, conversely, that a judge can be a good judge without being a good writer. Not everyone can write like Holmes, who, as Frankfurter correctly said, was a literary genius of the first magnitude. I'm thinking now of a state appellate judge who in the second half of the 20th century stood high above most of his peers but whose writing style seemed to change from year to year, sometimes improving, sometimes declining, a sign that he may have been relying primarily upon his law clerks to write his opinions. In his case it didn't matter much if he himself wasn't an outstanding writer. He had that even rarer quality, whose price is far above rubies: amazing judgment.

Further reading: BurtLaw's Legal Writing.

Police: 'madly in love' but spurned, she hired hitman to kill judge. "The Patiala Police today claimed to have cracked the murder case of Chandigarh Labour Court presiding officer Vijay Singh with the arrest of Dr Ravdeep Kaur and Granthi Manjit Singh. Dr Ravdeep, the police said, was 'madly in love' with Vijay Singh and wanted him to divorce his wife and marry her. She paid Manjit Rs 5 lakh for the murder, the police added...." More (Indian Express 10.19.2005). "Dr Ravdeep Kaur and Vijay Singh had been seeing each other, but their families decided against their marriage. Patiala Zone Inspector General of Police S.M. Sharma said after Ravdeep got separated from her husband, she wanted to get back with Vijay Singh. When she was cold-shouldered by Vijay, she approached Manjit, [with whom she] hatched a conspiracy to eliminate Vijay Singh...Both roped in more people to execute the murder...Dr Ravdeep’s name cropped up during investigations when the slain judge’s wife Deepinder Kaur expressed her suspicion that the doctor could have a hand in the crime...." More (Chandigarh Newsline 10.19.2005). Earlier: Police arrest doctor in judge's murder. Comment. Others will give you links to stories about the victors' 'trial' of Saddam Hussein but who will provide you with links to good stuff like this?

Another Bangladesh judge victim of Islamic-militant bomb attack. "[District Judge Biplab Goshwamy] in northeastern Bangladesh was wounded in a bomb attack by a suspected Islamic militant...The attack on Tuesday came a day after police charged two top Islamist militant leaders for masterminding serial bombings in the country over past two months. [the judge] was hurt when the homemade bomb exploded as he just got out of a car in front of his house...." More (Reuters Newsline 10.19.2005). Earlier: Panic spreads among judges.

Chief judge disagrees with judge's claim of 'clerical mistake.' "[Chief Administrative Judge Thurman H. Rhodes...disputed the assertion that a clerical error caused a protective order to be dropped against the man who allegedly set his wife on fire last week. The judge who dismissed the protective order, Richard A. Palumbo, contended this week through his attorney that it was not his intention to rescind the order against Roger B. Hargrave but that it was dissolved through a clerical mistake...'The clerk recorded what the judge did on the record,' Rhodes said yesterday. 'The clerk's office filed the entry correctly in terms of the judge's actions.'" More (Washington Post 10.19.2005). Comment. We were under the impression Palumbo took responsibility. see earlier entry: Judge admits he acted 'like a damn dummy.'

DUI law is unconstitutional in one judge's court & prosecutor feels stymied. "A Fairfax County judge [General District Judge Ian M. O'Flaherty] who believes Virginia's drunken-driving laws are unconstitutional has resumed his practice of dismissing all DUI cases brought into his court, leaving prosecutors unable to appeal his rulings...'We are racking our brains trying to come up with some type of solution,' [Fairfax Commonwealth's Attorney Robert F. Horan Jr.] said. 'It offends my sense of justice that on the charge of driving while intoxicated, it's going to be a question of luck of the draw [of judges]' that determines guilt or innocence...." More (Richmond Times-Dispatch 10.19.2005). Comment. We don't know enough about Virginia law to assess the claim, which editorialists have echoed, that the judge has prevented the prosecutor from appealing or otherwise getting the issue before a higher court and that there's no way prosecutors can do it. Our general view, based on many years of experience with appellate law, is there's usually a way, although it sometimes takes a bit of creativity.

Appointive commission grills lesbian judge about her lifestyle. "A battle of the sexes played out at Judicial Services Commission interviews on Tuesday, with a gay judge forced to defend her sexual orientation. Pretoria High Court Judge Anna-Marie de Vos and her colleague at the Bar, Judge Jeremiah Shongwe, were interviewed on Tuesday for the position of deputy judge president in the Transvaal Provincial Division. Whereas Shongwe slid through a seemingly painless 30-minute interview, the commissioners grilled De Vos for more than an hour on everything from her sexual orientation to a spat with Judge President Bernard Ngoepe...." More (Independent Online 10.19.2005).

'Judicial democracy' in China. We have no sense of the degree to which reality substantiates rhetoric in this document, but it is worth reading nonetheless and certainly supports our belief that China wants very much to convince westerners, particularly investors, that it is making a good faith effort to improve the independence, accountability, fairness and reliability of its judicial system: Judicial Democracy (White Paper: Building of Political Democracy in China Information Office of the State Council of the People's Republic of China October 2005, Beijing).

Annals of 'judging': response to claim of unfair pageant judging. The 2005 Howard University Homecoming Steering Committee has responded to a claim of unfair judging of the recent Mr. and Miss. Howard Pageant. A Response to Claims of Unfair Pageant Judging (The Hilltop 10.19.2005). The claim, made yesterday, is that "campus politics pervades the pageant." Mr. and Miss Howard Pageant (The Hilltop 10.18.2005). Comment. Even if we had an opinion of the bona fides of the claim, we wouldn't express it. However, let the word go forth, if any pageant coordinators anywhere want us to serve as judges & pay our expenses, etc., we -- well, we doubt we'll accept unless the offer is really good.

Judge is released on parole, then arrested and jailed for contempt. "Former Cumberland County judge Robert Cochonour was behind bars again Tuesday, just a day after he was paroled from a state prison halfway house. Cumberland County deputies took him into custody Monday and jailed him on a citation for contempt of court...[that was] was issued by Judge Stephen Pacey in September 2004 after Cochonour failed to produce documents related to the estate of Greenup businessman Jay Hayden...Cochonour went to prison in 2003 after he admitted stealing more than $100,000 from Hayden's estate after Hayden died in 1985...." More (Belleville News-Democrat 10.19.2005). Earlier: Imprisoned ex-judge charged with another felony; Ex-judge testifies he looted estate.

Spicing up the courts. "Football star David Beckham and his wife, former Spice Girl Victoria, are taking legal action against a newspaper that claimed their 'happy marriage' is a sham. The couple is seeking libel damages against the News of the World newspaper over an article which carried the headline: 'Posh and Becks on the Rocks.' The case will be heard before a judge and jury at London’s Law Courts in December...." More (The Statesman 10.19.2005). Comment. It's considerably easier for a public figure to prevail in a defamation action in the UK than in the U.S. Recommended reading: How the British courts do it. Graydon Carter, Roman Holiday -- How I spent my summer vacation in London being sued by Roman Polanski -- and what I learned about 'solicitors,' pub food, and the British chattering class (Vanity Fair 09.19.2005). My view is that while it's harder to prevail in the U.S., it's still too easy to use defamation suits as a form of legalized extortion or to harrass, and I believe the cause of action ought to be eliminated as inconsistent with First Amendment values. I express my views in greater detail at Court upholds dismissal of judge's libel suit against TV station.

PA judge rules on important lingerie shop case. According to this report in The Beaver County Times (10.18.2005), Robinson District Judge Carla Swearingen rejected a township's contention that Vanessa Fuchs' Sassy Sensations lingerie shop violated its sexually-oriented business ordinance but the judge penalized Fuchs for opening Sassy Sensations without an occupancy permit. Comment. Our expert on lingerie litigation, Dr. F. Lavoris Pusso, Ph.D., SuperNintendent, is out to lunch and unavailable for comment at this time.

Police arrest doctor in judge's murder. "The Punjab police has claimed to have solved the murder of Additional Sessions Judge, Vijay Singh by arresting a lady doctor Ravi Deep Kaur here today...." More (WebIndia123 10.18.2005). Earlier: Judge murdered while talking on cell-phone.

Commission: bribery rampant in courts. "The Judicial Commission said on Monday that the bribery case involving former president Soeharto's half-brother Probosutedjo provided a crystal clear proof that the practice was rampant in the court system and legal professions. Pressures, meanwhile, mounted for Chief Justice Bagir Manan, who is presiding over the panel of judges hearing the case, to be suspended, pending an investigation into him in connection with the bribery allegations...." More (Jakarta Post 10.18.2005). Earlier: Judicial reform in Indonesia.

Juvenile court judge's son charged with rape. The 31-year-old son of a Tennessee juvenile court judge, along with the son's wife, are facing charges in connection with the son's allegedly raping an 11-year-old girl. "'My wife and I support him,' [Gibson County Juvenile Court Judge] Robert Newell said Monday of his son. 'We don't believe that he did it...I know my son,' Robert Newell said. 'He might do a lot of things, but he loves kids. I just don't feel like he'd do anything of that nature.'" More (Jackson Sun 10.18.2005).

Prosecutor can't sit as judge in same case -- who knew? "The Supreme Court [United Arab Emirates - Abu Dhabi] has ordered retrial of an expatriate sentenced by a judicial panel to four years and a month in jail for violating the residency law. The retrial is to be conducted before a new judicial panel. Anulling the verdict of a lower court, the apex court held that the Ajman public prosecution and the court had committed a legal error by having the public prosecutor participate in the judicial panel...." More (Khaleej Times 10.18.2005).

Should 'psychometric' exams be given to judicial candidates? I'm not a student of Israeli politics or of that subgenre of politics, Israeli judicial politics, but it seems from afar that there are some in Israel who've been harsh in their criticism of the judiciary while at the same time we occasionally see stories such as one I saw in June that the Supreme Court in Israel was the most-trusted state authority. More. Anyhow, here's a link to an interesting opinion piece by Ze'ev Segal in Haaretz (10.17.2005) that sort of meanders but is nonetheless interesting. One of the author's suggestions, which makes no sense to me, is this curious one:

Psychometric exams should be administered for judicial candidates - an approach that was rejected a few years ago by the Zamir Commission, which discussed ways of improving the appointment of judges. The exams, which are given to anyone who wants to be appointed to a senior position in the economy, must be an essential condition for a judicial position.

Such faith, in my opinion unjustified, in pseudo-science! One wonders how many of our finest judges would have been "screened out" by such tests -- or whether they would have even stooped to submit to such nonsense.

What does Proposition 77 say about retired judges? Next month Californians will vote on Proposition 77, which, if passed, will remove redistricting from the Legislature and give it to a three-judge panel of retired judges. An interesting article in the San Francisco Chronicle (10.17.2005) on the debate over it includes this summary of how the plan would work:

If Prop. 77 passes, the state Judicial Council, the administrative body of the court system, will collect a list of retired judges willing to serve and randomly select a pool of 24. The Democrat and Republican leaders of the state Senate and Assembly each will choose three candidates from that group, none of whom can be a member of the choosers' party. Each of the legislative leaders can eliminate one member of the 12-person pool. The three members of the redistricting panel are then chosen by lot from among the remaining eight judges, although the final panel must include at least one Democrat and one Republican. There's still a question about how many retired judges will be interested in serving, especially because many have lucrative second careers as arbitrators or private judges.

With qualifications, I think the plan would be an improvement over the status quo there. But it says some interesting things: a) that while judges over a certain age are presumed to be unqualified to continue to hold the office of judge, they're at the same time qualified to decide one of the most important issues in state government; b) that judges can never escape being deemed "Democrat" or "Republican," in some sense, no matter how long they have served and proven themselves as neutral arbiters; c) that the marketplace, which hires them to carry on their "lucrative second careers as arbitrators or private judges," seems generally to place a higher value on them than Government, which requires their retirement no matter how experienced and wise and brilliant they are, does. See, BurtLaw on Mandatory Retirement of Judges.

Top judge, awaiting trial on charges of raping two girls, retires. Namibian Supreme Court Judge of Appeal Pio Teek, 59, has submitted his resignation while denying rape charges pending against him. "[On January 31] Teek was arrested on charges that he had had abducted and sexually molested two girls, aged nine and ten...on the evening of January 28 to the morning of January 29. It is alleged that he picked up the [girls] in his vehicle in Katutura and took them, without their parents' permission, to his smallholding in the Brakwater area north of Windhoek...sexually fondl[ing] the two girls on the way to his plot and after they had arrived at his house..." More (The Namibian 10.17.2005).

Retired judge still going great guns. "Retirement for Paul H. Buchanan Jr., who spent 22 years as a member of the Indiana Court of Appeals, including nine as Chief Judge, has been anything but retiring. A lifelong fitness buff, the 87-year-old Buchanan still lifts weights and rides a stationary bicycle regularly.

He also exercises his mind. Ten years ago, Buchanan started collecting art, with special focus on works from Brown County in the first half of the 20th century...All of the works are now on display in the new Downtown Flanner & Buchanan Funeral Center...Buchanan is the grandson of one of the firm's founders...The judge still handles the firm's legal work...." More (Indianapolis Star 10.16.2005).

Judge is also a major 'jock.' "Salem [N.H.] District Court Judge Michael E. Jones led a delegation of 50 Team USA athletes to the International Triathlon Union World Aquathlon Championships in Honolulu. The Pelham resident, who also serves time on the Nashua District Court, competed in the Masters Division. He became the first athlete ever to win three world championships in this running and swimming event..." More (Nashua Telegraph 10.16.2005). Comment. My ex-wife's brother, John S. Kitchen, is a leading attorney in Laconia, N.H. He is a friend and former colleague of Justice David Souter, with whom he worked in the N.H. Attorney General's Office.

Profile of Texas' Chief, Wallace Jefferson. "[Wallace] Jefferson is a fascinating figure. The great-great-great-grandson of a slave owned by a Texas district judge, he was appointed to the Supreme Court by Gov. Rick Perry in 2001 and as chief justice last year...." More (Houston Chronicle 10.16.2005).

Our Motto - "Ridentem dicere verum quid vetat" Loose translation: Does anything prevent telling the truth with a smile? (Horace)

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