Court Gazing III

BurtLaw's Court Gazing III
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Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It 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, it 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 the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

Annals of judicial independence. "The state's [highest court] offered only tepid opposition to a budget rider pushed through by the Legislature two weeks ago to strip judges of their power to hire probation officers -- an assault on judicial independence....Researchers who have studied the relationship say in no other state does the Legislature have such a grip on what goes on in the courts." What state are we talking about? Guess...then click here. For some of my views on judicial independence, click here. (12.12.2001) Update. Judge has filed a request with the highest court in the above-mentioned state, urging it to take on the legislature: "I ask only that you act to uphold the rule of law and the institutional integrity of the courts...Failure on your part to respond vigorously to this corrupt [action by the legislature] will mark your stewardship of the courts as a failure, regardless of what else you do." More (12.19.2001, Boston Herald).

Courthouse displays revisited. "Baker County [in Florida] is pondering what to do about a mural for the renovated courthouse that provides a 6,000 year visual history of the county because in it is a small view of white-robed Klansmen and a confederate flag. Eighth Judicial Circuit Chief Judge Stan Morris, who lives in Gainesville, has warned the County Commission he will order Sheriff Joey Dobson to take the mural down if it is put up as planned, according to county officials...." More (GainevilleSun) For another battle over what sort of "art" is appropriate or not in a courthouse, and over who should decide, click here and here. (12.12.2001)

Old judges never die... You can mandate the retirement of judges at age 70 if you want, although I'm against it (more), but you can't keep a good judge down, and your loss may be somebody else's gain. Example, this 79-year-old former judge whose clock takes a licking but just keeps on ticking.... More (CincyPost) (12.12.2001)

Judicial conduct commissions. Do some judicial conduct commissions pose a potential or actual threat to the independence of the judiciary? In some instances are they "investigator, prosecutor and judge" all in one? Are the rules and procedures in harmony with state laws and constitutions? How can they be improved? These are questions some legislators are asking in Utah and questions that might arise in a federal lawsuit one judge, who is under investigation, is bringing against the Utah commission. More (Salt Lake Tribune). (12.12.2001)

Law clerk selection protocol. Back in the fall of 1969 I was interviewed for a Minnesota Supreme Court clerkship that I began the following September 1. In the years since then, courts all around the country have been interviewing and hiring earlier and earlier. Typically, now, the hiring process begins in the spring of second year of three years of law school. The federal judges have tried a number of times to change that, to revert to the time table that existed when I was hired. Here's a report on their latest plan: New Plan in Works to Change Deadline for Clerk Selections by Tony Mauro (Yahoo/Legal Times) 12.11.2001

Family feuds & family favoritism. There are two stories in today's New York Times that mark the opposite ends of the pole called "family relations." One, titled A Family, a Feud and a Six-Foot Sandwich, by Glenn Collins, deals with two brothers, Italian-Americans, who have shops next to each other but haven't spoken to each other in 25 years. "The court case that summarizes their enmity -- Manganaro's Hero-Boy Inc. v. Manganaro Foods Inc. -- has spanned 14 [of those 25] years." The other story in the Times is a squib item about U.S. Rep. Jim Ramstad (G.O.P., Minnesota), who not only is still speaking to his sister but is telling the President that he should appoint her to a lifetime federal judgeship because, in his objective opinion, she's "clearly the most qualified candidate" of the three finalists picked by one of those committees politicians assemble to winnow the field a bit. The Duluth Tribune contains a more detailed version of the story to which the Times refers. (12.08.2001)

Guess who's charged with peeping, public intoxication, theft, etc.? Oh, it's just another judge who got caught having a little fun at a judicial conference, that's all. See, infra. I sometimes wonder if some (oh, just a few) judges look upon judicial conferences as "moral holidays," a kind of "Judicial Mardi Gras." I dunno. All I know is my main objection to these conferences is as a taxpayer, not as finger-wagging moralist. I don't think taxpayers should be paying for legitimate judicial conferences (or the other kind, vacations disguised as conferences), whether at conference centers, luxury resorts, low-budget resorts, hot-sheet motels or elsewhere. I've read a number of biographies of Justice Holmes and four or five volumes of his letters. It was never a secret that he liked burlesque, pretty women, and racy French novels. When he was eighty and spotted a pretty woman, he said, "Ah, to be seventy again!" But I don't recall any reference to his having attended any judicial conferences, much less any paid for by taxpayers. I wonder if he ever submitted an expense report requesting reimbursement. As for the occasional reports we get of judges behaving badly, I'm inclined to think perhaps we should be more understanding and forgiving, as long as we're not footing the bill. The underlying psychological cause. Judging is a passive activity that requires a great deal of what Freud and Jung referred to as "repression" of normal human nature. Judges aren't supposed to say what they really think. They're not only not supposed to do bad things, they're not supposed to do anything that might conceivably even just look bad. In other words, they're not supposed to have fun. Norwegians, either genetically or through long practice, are good at not having fun and therefore make good judges. But most people aren't. The average person can repress his or her true self for only so long before that which is repressed seeks alternative forms of expression -- sometimes as "symptoms," sometimes, I suppose, even as wild behavior at judicial conferences. What to do? A modest proposal: not only should we perhaps be a tad more understanding and forgiving of judges caught behaving badly -- perhaps we should actually declare an official once-a-year Judicial Mardi Gras, when all judges everywhere, at their own expense, can leave their jurisdictions and fly to Rio for a few days and "let it all hang out," metaphorically and literally speaking. If they violate the law there in Rio & get caught, they pay the consequences there. But if they make it back to the states in time for Monday morning court, they're "home free," at least as far as the matter of official judicial discipline goes. If they get caught with their tops or bottoms down in a Judges Gone Wild video sold on late-night TV, well, the thing itself (and any consequences on election day) should be deemed punishment enough. :-) (12.09.2001)

Judicial conference. Four hundred and fifty Florida judges were attending a taxpayer-financed "judicial conference" at the upscale Amelia Island Plantation resort last week. One of them was 44-year-old Judge Joyce Julian. Judge Julian, depicted here, had her own reservation but canceled it because she was staying with another guest at the resort, whose identity her lawyer will not identify. She has a lawyer speaking for her because she was arrested by police after she was found around 3 a.m. in a third-floor hallway naked from the waist down. The hotel security officer who found her says she refused to identify herself and ran. Police arrest report says she was "extremely intoxicated and verbally combative." It apparently wasn't until she was in the squad car that she said she was a judge and was the victim of an attempted sexual assault. Whether she was or wasn't, her behavior in the bar that night should be of interest to Florida voters and taxpayers. Witnesses say she was at the bar for four hours, before leaving at 2:15 a.m. and was drinking heavily and dancing. When she left she "could not walk" and was "all over the place." More (Miami Herald). Without regard to whether judges participating in these "conferences" comport themselves well after hours, I have a suggestion to governors around the country who are reviewing budget requests submitted by courts in these times of severe revenue shortfalls: don't go laying off so-called lower-level non-essential court employees. Instead, tell the court administrators to draw a red pencil through all requests for appropriations for judicial "conferences" at resorts. While you're at it, tell them to do the same for requests for appropriations for judicial travel, meal and "educational" expense allowances, for catered judicial meetings, for subscriptions, for memberships in bar associations, for bottled water, etc. Do the same for the prosecutors and the public defenders. These folks, judges included, are all public lawyers receiving not just big paychecks but generous pensions, generous vacation allowances (typically, 4 weeks), more paid holidays than most workers get, good working conditions, etc. (12.07.2001) Update: Judge enters rehab following arrest (South Florida Sun-Sentinel 12.10.2001); Judge won't face charge for false report, other charges will be dismissed if.... (Florida Times-Union 12.15.2001); Attorneys in sex-related cases ask judge who made false report of sex crime to recuse (South Florida Sun-Sentinel, 01.11.2002); Judge Julian completes rehab, now presides over drug court (Miami Herald, 01.23.2002); Judge Julian reassigned to family court (Law.Com, 02.19.2002); Formal disciplinary charges filed (Miamia Herald 02.20.2002). Compare: College student who wants to become an attorney (and maybe a judge?) has been sentenced to probation for filing false claim of rape (Des Moines Register, 01.08.2002 via Overlawyered); Judge caught taking beer in African jurisdiction ruled by Islamic "Sharia law" is sentenced to 80 strokes of the cane in market square and likely will be dismissed from office (AllAfrica, 01.21.2002).

Do Supreme Court law clerks like smut? "I don't choose the cases the Supreme Court hears, I just report them. So the fact that today's case involves smut yet again says more about the lonelinesses and hungers of the average Supreme Court law clerk than anything else. So far this term the Rehnquist Court has yet to meet a nipple it doesn't like...." Dahlia Lithwick, reporting in Slate on the latest pornography case argued in the Supreme Court. More. (12.05.2001)

Victoria's secret. The judicial discipline folks in Illinois have removed a Cook County trial judge after determining that he sexually harassed four female prosecutors and perused a lingerie catalog while sitting on the bench. The sexual harassment consisted of "repeatedly 'hit[ting] on' them, asking them out for drinks or meals, commenting inappropriately on their clothing and kissing two of them against their wishes." One prosecutor recalled seeing the judge "sitting on the bench after business had concluded thumbing through a lingerie catalog. Pointing to an item on one of the pages, [he] asked [her], 'What do you think about this one?'" This is the first judge in Illinois ordered removed for sexual harassment. In Illinois the judge apparently has no right of appeal from the disciplinary commission's decision. More (Chicago Tribune).

Judicial patronage. A two-year probe in New York may result in the filing of disciplinary proceedings against a dozen judges. More (NYPost). The allegations focus on lucrative appointments by judges of guardians, receivers, etc. I'd like to see someone look at the other kind of judicial patronage around the country, specifically, the appointment by judges of friends and supporters -- lawyers and others -- not as guardians and receivers but to positions on regulatory boards, rules advisory committees, etc. These appointments, while not necessarily monetarily lucrative, can be career-enhancing and thus are potentially "of value" to the appointees. Moreover, if a particular judge is a member of or liaison to a committee on rules, e.g., it can be of value to the judge to "stack" the committee with like-minded individuals or with individuals who are likely to follow the judge's lead. It is at least possible such an inquiry might be revealing in some jurisdictions -- particularly if judges have created the public perception that the appointments they make are based on merit and that such committees are balanced and representative of varying viewpoints. (12.04.2001)

Our stunning judges. "When Jason Kent stands trial in the slaying of his wife's ex-husband in December, he will have a belt with a small box strapped to his waist. If Kent, who wore one in an earlier proceeding, becomes violent or tries to escape, a deputy will simply push a remote-control button and Kent will get a painful blast of 50,000 volts to his kidneys...." More (Orlando Sentinel). (11.24.2001)

Corporations, aided and abetted by courts, are killing the Internet. "Who owns the Internet? Until recently, nobody. That's because, although the Internet was 'Made in the U.S.A.,' its unique design transformed it into a resource for innovation that anyone in the world could use. Today, however, courts and corporations are attempting to wall off portions of cyberspace. In so doing, they are destroying the Internet's potential to foster democracy and economic growth worldwide...." From The Internet Under Siege by Lawrence Lessig in Foreign Policy. (11.24.2001)

"I'll trade you a Scalia for a Thomas." "Geriatrics and children alike thrill to the wholesome challenge of collecting the entire Psychedelic Republicans series [of trading cards]. Mind-expanding conservatism was never more fun!" There are twelve cards in the series, including ones of Justices Scalia and Thomas. More (via MetaFilter).

"Judges Gone Wild" -- the Video? If you've watched late-night TV, you've probably seen the ads for the "Girls Gone Wild" video series. Those videos, which typically depict college girls baring themselves in public while on spring break, while attending Mardi Gras, etc., have spawned litigation. See, e.g., this report of a lawsuit filed o/b/o a Florida State University co-ed against the makers of the videos alleging they filmed her with a hidden camera and are commercially exploiting her image without her permission. Although one regularly reads reports of "judges gone wild" -- click here, here and here for examples -- it is doubtful that there are sufficient video clips available to produce and market a "Judges Gone Wild" video. Fear not. It appears that Alabama's fearless Chief Justice -- "The Ten Commandments Judge," whose exploits we have recounted (click here and here) -- has cooperated in a Christian television network's making and marketing of a video documenting the installation in the dead of the night of the Ten Commandments Monument he commissioned for the Alabama Judicial Center. Get your copy now. :-) More (Daily Home). (11.20.2001, updated 01.22.2002)

Ex parte contacts by supreme court justices? Two statehouse reporters with the Columbus Dispatch have done some of the investigative reporting of governmental officials one wishes other newspapers would do. Their review, under the sunshine law, of phone records of the Ohio Supreme Court, which is one of our more highly-politicized state supreme courts, reveals that members of the court "made dozens of phone calls to key parties in the state's landmark school-funding case this year," but "only one justice acknowledges that he discussed the lawsuit." The others who made calls claim their calls related to other matters. The senior member of the court is quoted as saying, "The justices were talking. It's clearly unethical. They know what they've done...It's a basic rule." Justices' phone calls spur ethics questions (Columbus Dispatch 11.18.2001)

Am I watching an episode of Ally McBeal? If you enjoy TV shows that feature quirky and/or rude judges -- shows like Ally McBeal, Boston Public, The Practice, Philly -- you probably sometimes ask, "Are there really judges who behave that way?" The answer is yes. Here's one: a fellow who faces a disciplinary hearing for, among other things, demeaning people, including attorneys, in court and in chambers. Here's a fun "for instance": state investigators allege His Honor uses "a prop that emits the sound of a flushing toilet to show his displeasure." The judge allegedly once used the prop to show his displeasure with a defense attorney defending an alleged rapist. The judge's "sidebar" area is known as "the woodshed" among attorneys (that is, a place where verbal punishment is administered). More (Daytona Beach News-Journal)

Whoops! What happens when a judge is automatically suspended from practicing law because he forgets to pay his annual attorney registration fee? The folks in Texas say this is the first time this has happened so nobody knows the answer. More (Brownsville Herald). Surely this has happened before...somewhere. If you know of it happening somewhere, please help out the folks in Texas. (11.15.2001)

Whoops! -- again and again and again. As long as no one gets hurt, it's always amusing when the pillars of the law misapply or break the law -- as when, for example, a) a panel "charged with nominating appellate judges" breaks the law "by choosing its leaders out of the public eye" [more (Miami Daily Business Review/Law.Com Florida)], or b) a state bar association violates a state's Fair Campaign Practices Act [more (MN Campaign Finance Bd. findings and order dated 02.23.2001)], or c) a coroner's office harvests corneas and removes and keeps brains during autopsies without obtaining permission from or even notifying the families of the deceased [more (Cincy Post). (11.15.2001)

Judges and the media. Here's a link to a local (i.e., Twin Cities) paper's report of "our" Sara Jane Olson's motion to withdraw her guilty plea. The story quotes our publicity-seeking Hennepin County Attorney, Amy Klobuchar, as saying, "She's making a big mistake." It quotes a number of criminal defense attorneys. And -- and this is the only part that disturbs me -- it quotes a Ramsey County District Court Judge as saying that judges do not casually allow defendants to withdraw guilty pleas that have been properly entered. I heard a similarly-disturbing statement from a Hennepin County District Court Judge on a local "news" show last night while I was flipping channels. I don't believe either judge said anything that is inaccurate. So why am I disturbed? Because, frankly, I don't think judges should make themselves available to comment -- even generally or indirectly -- on pending cases. Does it matter that the case is not one in the Minnesota court system? Others may disagree, but I don't think it should matter. In fact, I think too many of our judges are too eager to become local celebrities, to get their faces in the news, to make public appearances, to appear in TV "sound clips." But then I'm sort of "old fashioned" on the subject of the role of a judge. I actually believe that the "model" for how judges should deal with the press is the first of six Minnesota Chief Justices with whom I worked -- that seemingly grumpy but actually shy Scandinavian, Oscar R. Knutson. Ralph Waldo Emerson, one of my heroes -- wrote in his journal that "shyness" is a "husk" or shell that protects certain people. It perhaps was part of what protected Chief Justice Knutson, who I don't believe ever would have provided a "sound bite" to any reporter with the temerity to ask for one. More... (11.15.2001)

BurtLaw's Featured Essay. "The mission statement belongs to an era in which the main purpose of many companies is not making but branding things; the language in which a company represents itself to the world is part of its brand-image. As part of the marketising process that began during the Thatcher era and has continued to the present day, British public sector institutions were also encouraged to view themselves as brands, and to use language similarly, for purposes of self-promotion rather than public information. Nobody needs to be told what universities, schools and hospitals do, but they all have mission and vision statements now, most of them comprising platitudes such as 'serving the community' and 'pursuing excellence.' These slogans are as meaningless as the old mottos on schoolchildren's blazers...That they are written in modern English only emphasises their vacuity...." From The Tyranny of Nicespeak by Deborah Cameron in The New Statesman. Let's face it: most people follow the crowd. Consciously and unconsciously they do so. And since most businesses and institutions are run by folks who are lacking in imagination but not lacking in their enthusiasm for the fad of the day, most businesses and institutions follow the crowd, too. In the 1990's grown men and women, with expensive diplomas hanging on their office walls, spoke seriously about their company's or institution's "mission," as if what they were saying was profound and meaningful. Pretty funny...in a sad way. Anyhow, Ms. Cameron, author of Good to Talk: Living and Working in a Communication Culture, has an eye for all this nonsense. I recommend her essay. (11.13.2001)

Confirming Mathilda. Mathilda made some controversial comments the other day that created a stir. Last night, however, the essential poetic truth of Mathilda's comments was confirmed -- by a Nova Scotian border collie, a cousin of Mathilda's named Skye. Appearing on The Late Show with David Letterman, Skye's human helper scattered eight flying discs on the stage of the old Ed Sullivan Theater. Skye then proceeded frantically, using only her snout, to tip all the discs so they were open side up, gather them in a small area, stack them, and hold all eight at once in her mouth. To view a video clip, visit Dave's TV Guide and click on the picture of Skye with discs in her mouth. Sez Mathilda after watching the clip repeatedly: "Big Guy [that's what she calls me], if a border collie with a good work ethic can do that in a matter of seconds while under extraordinary pressure before a national TV audience, perhaps an appellate judge, with full-time research help from a well-paid recent law-school grad and a full-time secretary, ought to be able to write more than two, at most three, opinions a month." "Ah, Mathilda," sez I, "you're out of your league. You shouldn't judge a judge on the quantity of opinions he writes but on their quality -- and what better objective test of quality than length? Whereas some judges on some appellate courts might write seven or eight seven-page slip opinions a month (or a total of, say, 56 typewritten pages a month), a more-thoughtful craftsman of a judge might write only two or three slip opinions a month but they'll be long twenty-pagers (60 typewritten pages or an average of four more pages a month!), i.e., scholarly opinions with detailed recitations of all the facts, long earnest summaries of previous decisions, lots of interesting footnotes and clarifying asides, and sober judicial-sounding pronouncements. Mathilda, in the law as in dog food, you pays for what you gets." (11.09.2001)

"Judge Judy is the bane of existence of trial judges." So said Hiller Zobel, a Massachusetts trial judge in a speech in Reno, Nevada. "People see that and think that's what court is about. My problem is that they don't accurately depict the legal process. They give the wrong idea of what goes on in the courtroom." More (San Diego Union-Tribune). Judge Zobel also said he thinks the press doesn't do a good job covering the courts. I agree with him that Judge Judy gives people the wrong idea of what goes on in the courtroom and that the press doesn't do a good job covering the courts. But I think we part company there. Judge Zobel thinks the press covers courts only when there's "something interesting or wrong with the courts," complaining that he "couldn't interest" them in a story idea he was pushing on a court reorganization plan. My criticism is that, outside of covering notorious cases (usually criminal ones) or judicial scandals, stories which typically are handed to them on a silver platter, court reporters generally only engage in press-release journalism, uncritically accepting and repeating information contained in press releases given them by "court information officers" (yes, even courts hire them these days, often at large salaries paid for, of course, by taxpayers). These press releases typically are about court reorganization plans, need for still higher salaries for judges, need for yet more taxpayer-financed studies on how to make courts more efficient, etc. Zobel believes the press is ignoring one of the three branches of government on the ground that it's boring. I don't know if that's the reason or if it's that the press lacks imagination or lacks the expertise needed to effectively cover courts. But I think Judge Zobel and judges in general should be glad that the press ignores the courts. Basically the result is that courts get a "free pass." It's entirely possible that if the press covered the courts effectively, judges might long for the good old days when they were ignored. (11.11.2001)

More "Court Gazing"? Click here, here, here, and here.

See, also, LawAndJudicialEconomics.

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