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BurtLaw's Court Gazing V
-  LawAndEverythingElse.Com  - Copyright (c) 2006 Burton Randall Hanson

Court Gazing.

 a) Gov. Jane Swift of Mass., a lieutenant governor who became governor in early 2001 when the elected governor resigned to accept a Presidential appointment, is in the waning days of her term. As lame-duck governors tend to do as January approaches, she has made a slew of lame-duck appointments to the judiciary. With a straight face, she has maintained that they are merit-based appointments, including that of her chief legal counsel to a judgeship. The council that has to approve such appointments for them to take effect did so by a vote of 6-2. The two who dissented accused the governor of cronyism, one saying that the appointee in question "use[d] his key position to curry favor with the councilors who would vote on his nomination." More (Boston Herald 12.19.2002). Those of us in Minnesota are familiar not only with last-minute lame-duck judicial appointments by outgoing governors but with appointment of gubernatorial legal advisers and heads of judicial appointments commissions as judges. But why restrict ourselves to Minnesota. Vice-President Cheney was the guy who, guess what, was assigned by Geo. W. Bush to come up with an appropriate running mate. And, here's a confession -- when I was in high school I was elected president of my class in 11th grade. Guess who was on the nominating committee.

 b) We've linked a number of times to news stories regarding the soap opera surrounding Judge Gerald Hosemann, a Mississippi judge who was charged with aggravated assault based on allegations he severely beat his former court reporter and, well, "friend," Juanita Johnston. He denied the allegations, claiming they just had a verbal dispute. Hosemann resigned in March but then quickly rescinded his resignation. Johnston recanted, but the DA said he was proceeding with the case nonetheless. Hosemann subsequently pleaded guilty to misdemeanor disorderly conduct & the felony charge was dismissed. For details, click here. He ran for re-election but was defeated. Now, with just a couple weeks left on his term the Commission on Judicial Performance has filed a petition with the Mississippi Supreme Court urging his suspension for those two weeks. The petition was filed after Hosemann dismissed charges against a large number of defendants charged with DWI "with prejudice" because the prosecutor, his successor, didn't appear in court to "present" the cases. The prosecutor claims he obtained a continuance from Hosemann and the dismissals were unjustified. The Commission argues the two-week suspension is needed to prevent Hosemann from causing more detriment in the final two weeks to the integrity of the judicial system. More (Clarion-Ledger 12.18.2002).

 c) Meanwhile, Donna Scott, a county juvenile court judge in Tennessee, who is worried because a teenager who previously threatened her life escaped from a halfway house, "was told last week that sheriff's deputies who guard the judicial building were not allowed to escort her to her car after work." Apparently escorting a judge to her car after work is not part of their job description. More (Tennessean 12.18.2002) Quite a contrast with the case of Justice Marylinn Diamond, a trial judge in NYC who received "virtually around-the-clock [protection] by NYPD detectives or Supreme Court officers" starting in 1999 as a result of her receipt of approximately 48 threatening letters. Back in September of this year the New York Daily News reported that a psychological profiler called in by investigators had concluded after reviewing the letters that Justice Diamond had written and sent them herself. Justice Diamond, who has "vehemently" denied the allegations, reportedly provided the police with the names of 20 men who had been involved in high-profile divorce cases over which she had presided. Some of these men have come forward and complained not only about her naming them as people who might have a grudge against her but about her objectivity in presiding over their divorces. More and more (NYDailyNews 09.15.2002 and 09.19.2002) At least six of them have formed a "support group" and are trying, apparently without success, to get her removed from the bench. More (NYDailyNews 11.11.2002) and more (NYJournalNews 11.30.2002).

 Those hard-working (wink, wink) Justices -- will one of 'em retire? Court Watchers are speculating on whether Rehnquist and/or O'Connor will retire now that President Bush has a Republican Senate (which includes that legal scholar, Rubber-Stampin' Norm Coleman). The incomparable Dahlia Lithwick, suggesting that there is no real need for either of them to do so, states:

[T]hese people do not exactly work coal miner's hours. The justices of the high court listen to arguments for 12 hours a month, six months a year -- the functional equivalent of three days down a coal mine. The rest of their time is devoted to deciding which meager 80 cases they'll hear all year, how they'll vote, and writing opinions -- for which a good deal of the research and drafting is done by law clerks who never sleep or eat. In sum, a Supreme Court justiceship is a dream job for anyone over the age of 80 or under the age of 7. How else could Clarence Thomas be both working full-time and writing his memoirs? Almost five years ago, my colleague David Plotz assessed the chief justice and tried to answer the speculation raging back then as to whether a Rehnquist retirement was imminent. His conclusion: Why would he possibly want to retire? "Every year he has less work to do. He's made sure of that. The efficient justice arrives at the court around 9 and leaves by 3 -- what other job in Washington has such sweet hours?"

Dahlia Lithwick, Chief Justice Roulette -- Handicapping the Supreme Court shuffle (Slate 11.25.2002). No wonder they have so much time for long vacations, writing books, making public appearances, giving speeches on whether the Constitution is living or dead, etc. As to the latter, see, e.g., this report (Miami.Com 11.26.2002) of Justice Scalia's speech the other day at a Florida "leadership forum" attended by Gov. Jeb Bush, a speech in which he is quoted as saying that if the public concludes that the Justices are "making it up" when they supposedly interpret the text of the Constitution, then they'll, as the reporter paraphrased him as saying, "stop looking for good judges and instead look for policy-makers to sit on the bench." Scalia, who presumably said this with a straight face, reportedly added, "I'm really not too optimistic about the future of the Supreme Court." My only comment is to ask rhetorically, When have "we the people" ever looked for anything but policy-makers to wear the black robes and pretend to be politically-neutered priests of the law? If we're "conservative," we call our policy-making Justices saintly "originalists," and if we're "liberal," we call our policy-making Justices apostles of the "living Constitution." Fortunately or not, the nature of the lawyer's training and discipline is such that the judiciary's natural tendency in terms of dogma and doctrine is centripetal, not centrifugal. Thus, my guess is that President Bush, like all Presidents before him, eventually will be surprised by some of the opinions of "his" appointees -- that is, if he gets to appoint anyone. (11.27.2002)

 Those long judicial work days - redux. Ms. Lithwick (Id.) arguably gives the impression that Chief Justice Rehnquist's six hours a day "at the office" is all work. But she says nothing about how much of that time, if any, is typically set aside for lunch, coffee breaks, etc. Also, we can't help noting that last week we came across this item, reporting that, according to a survey, "Britons spend more than 90 minutes a day gossiping, e-mailing friends and flirting and in the office." My guess, based on field observations, is that the typical American office worker spends more than 90 minutes a day engaged in such pursuits. But obviously, that would be just an average. What I'm sinceriously wondering is, In trying to guesstimate how much of the Chief Justice's six-hour work-day is work, should we assume he's like the "nomal" office worker? -- Editor's note: We emphasize that we have deliberately, and we believe prudently, avoided suggesting that that other important recent survey, which reported that Britons make love an average of 149 times a year and Americans 138 times a year, sheds any light whatever on the question of the amount of time Chief Justice Rehnquist, or any other judge in the free world, for that matter, devotes to actual work each day. Nonetheless, we "can't help," as Justice Holmes was fond of saying in another context, giving a red-faced "cf." to this possibly-relevant earlier-noted report in The Onion of a few weeks ago:

By an 8-1 vote Monday, the members of the U.S. Supreme Court collectively  resolved to lose their virginity by Dec. 31, 2002....The court decided to move forward with the pact later that evening when, during a late-night bonding session, Chief Justice William Rehnquist admitted to being a virgin -- shattering longtime perceptions that he is the worldliest and most experienced member of the court. 'Hearing that Big Willie had never buried the gavel was a key turning point,' Justice David Souter said. 'It opened up our eyes and made us see how we were not alone, after all.'

Our guess would be that older judges would make love less frequently than younger judges, on the job or off the job, but perhaps spend more time thinking about it, on the job or off the job. As a wise woman we used to know once said, "After a certain age, it's all in the head." If true, we're not sure how it all plays out in terms of time possibly wasted on the job by judges, but we note, for whatever it's worth, that one can think about "it" at one's desk without getting caught. However, that said, we just don't want to think about it any more. (11.27.2002)

 The BurtLaw "Burtie-Boy Awards." If we were to award a "Burtie-Boy" for best local coverage of courts by a daily newspaper, we'd probably give it to the St. Petersburg (FLA) Times, which consistently covers Florida courts, particularly those in Hillsborough County, both critically and fairly. Too many big-city daily newspapers seem to think that courts either can't take criticism or should be above it. These papers' coverage typically consists of uncritical regurgitations of press-releases provided them by taxpayer-paid "court information officers" (a euphemism for "'p.r.' people"). The truth is, coverage of courts is unfair -- both to the readers and to the courts -- if it isn't critical and independent. Coverage can be and perhaps should be caringly and lovingly critical, but it must be critical if it is to be fair and balanced, or even adequate. Here's an excerpt from an editorial on judicial elections in today's SPTimes that illustrates what I'm saying:

Only two of 26 incumbent judges up for election in Hillsborough were challenged this year. The local bar is too timid about taking on mediocre judges or those who are politically connected. Lawyers jump for an open seat, but the strengths they highlight in these safe races are attributes that also should be measured against those of sitting judges. The voters are capable of making good decisions in judicial contests; all they need is a choice.

You won't read an editorial like that in the Twin Cities' (MN) papers. Their editorials read as if written by a "court information officer." (09.17.2002)

 Judge as hero? Not.  There's an old saying that no man is a hero to his valet. A personal law clerk to an appellate judge might be thought of as the judge's legal valet. Some judges, deservedly or not, in fact are heroes to their legal valets. Others, of course, are not. During the 1936-37 term, John Knox, Harvard Law School Class of 1936, worked as law clerk to Justice James C. McReynolds of the U.S. Supreme Court.  Mr. Knox, who died a few years ago, kept a journal that year. Now the prestigious University of Chicago Press has published an edited version of the journal under the title The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington. In the following excerpt, McReynolds cautions his new clerk against becoming chummy with the "colored servants":

I realize you are a Northerner who has never been educated or reared in the South, but I want you to know that you are becoming much too friendly with Harry [McReynolds' messenger]. You seem to forget that he is a negro and you are a graduate of the Harvard Law School. And yet for days now, it has been obvious to me that you are, well, treating Harry and Mary [McReynolds' housekeeper and cook] like equals. Really, a law clerk to a Justice of the Supreme Court of the United States should have some feeling about his position and not wish to associate with colored servants the way you are doing....Of course, you are not a Southerner, so maybe it's expecting too much of someone from Chicago to act like a Southerner, but I do wish you would think of my wishes in this matter in your future relations with darkies.

For other excerpts from the book and excerpts from some of the reviews, click here. For The New Republic's review, click here. (09.17.2002)

 Not particularly proud. "After a lifetime of solitary penny-pinching, Bernadine Riske ended up rich but alone in a nursing home. Her legal guardians might have thought no one would care if they sold her house for a song...." From "The Estate Sale," by Leyla Kokmen, City Pages (Vol. 23 #1134, 08.28.2002). Back in 2000, when I ran "unsuccessfully" for statewide judicial office in Minnesota, I said, "I'm not particularly proud of our legal profession." And I made it clear I also was not particularly proud of our judiciary. Occasionally, however, some lawyer (or some judge) does something noble and grand, and when that happens we like to make mention of it. In this case, the lawyer who did something noble and grand -- also neighborly -- is an immigration lawyer named named Michael Verbrick. Read on...and as you're reading, ask yourself why our great legal system allows such things to happen or, in this case, almost happen. And also ask: might not a way be found to allow Ms. Riske to contine living in her home. Unless I'm missing something, surely it wouldn't (or shouldn't) cost $80,000 a year, which according to the article is the cost to her of keeping her in a nursing home. (08.31.2002)

 Supreme Court & public opinion. "'But there 's wan thing I 'm sure about.' 'What's that?' asked Mr. Hennessy. 'That is,' said Mr. Dooley, 'no matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns.'" Finley Peter Dunne, The Supreme Court's Decisions, from Mr. Dooley's Opinions (1901). Now, in Poll-Tergeist Why the Supreme Court shouldn't care what you think (Slate 08.21.2002), Howard Bashman argues that our unelected federal judiciary, in determining what is "unconstitutional," doesn't so much follow the election returns as it follows the polls -- public opinion polls that are not necessarily reliable and invariably vary as the volatile public's mood shifts this way and that. (08.22.2002)

 Judging judges. Lots of news these days -- no, every day -- about judges "in trouble." The latest:

1) "Federal judges usually police one another's behavior, but they rarely mete out punishment. Of 766 ethical complaints lodged last year, only one resulted in a penalty....The system encourages lenient treatment, American University law professor Paul Rice said Tuesday...." Judges escape ethical punishment (AP via Macon Telegraph 08.07.2002)

2) We've summarized, and linked a number of times to stories about, the allegations against Florida Judge Cope while attending a conference in California. Our last entry has links to the previous ones. While criminal charges are still pending in California, the hearing panel of the Florida Judicial Qualifications Commission has concluded that there is insufficient evidence to support most of the ethical charges arising out of the incident and has found that while he committed some ethical violations, they merit only a public reprimand. Public reprimand recommended for Cope (St. Petersburg Times 08.06.2002)

3) "A disgraced ex-judge pleaded guilty to bribery [Monday] in a deal that will put him behind bars for at least three years. Victor Barron, who resigned from state Supreme Court in Brooklyn last week, admitted shaking down a personal-injury lawyer for more than $100,000 as his price for approving a $4.9 million civil settlement...." Ex-judge pleads guilty (N.Y. Daily News 08.06.2002)

4) A state judicial panel is hearing testimony relating to disputed allegations that a state trial judge sexually harassed three female court employees. Women testify against judge (San Antonio Express-News 08.06.2002)

5) Meanwhile, in another state the state's Commission on Judicial Performance has decided that a trial judge must be removed because he fixed tickets for four friends and acquaintances, including Minnesota Twins ace relief-pitcher Eddie Guardado, and interfered with the rulings of other judges. Judge benched for misconduct (Modesto Bee 08.05.2002).

 Top 10 pop songs for judicial "investitures"? I don't know if it's still the practice but for a number of years whenever a new judge of a certain state supreme court was to be sworn in, the public invitations referred to the upcoming event as "another historic occasion" and an "investiture." The events typically were held in a large public area of an old federal court house and were conducted with a certain unintentionally comical pomp and circumstance, with robed judges from all around the state (pretty expensive to taxpayers when you multiply the daily pay of a judge by the number of judges), marching in solemnly (and proudly) at the start of the ceremony of "investiture." As in all things, there is fashion-and-fad in such matters, just as there is in weddings and funerals -- and everything else, including appropriate dress in a law school classroom. When I attended law school, at Harvard in the mid-Sixties, the guys typically wore sport coats and ties to class (sometimes even suits) and the gals (there were only a few back then but, like the guys, they were "all above average") typically dressed up, not down. These days, it seems, some students at some law schools show up wearing bathrobes and shower clogs. I remember talking with a minister in the early 1960's & he was bewailing the trend away from the traditional in weddings. He said he wanted to put his foot down, but didn't dare, when a couple insisted on entering by walking down the side aisles, one on each side, singing Indian Love Call a la Nelson Eddy and Jeanette McDonald, back and forth to each other. I think I first heard a pop song at a funeral in the late Seventies or early Eighties. The song was Lara's Theme from Doctor Zhivago. Apparently it's taken awhile for the trend to cross the Atlantic but, according to this article (icHuddersfield 08.05.2002), it's now taken hold in the UK. The #1 pop song of choice these days at UK funerals is Wind Beneath My Wings from Beaches, followed closely by My Heart Will Go On from Titanic (if you listen to the "midi" version of this one, you'll get an idea of what your funeral might sound like). It might make an interesting office game to suggest titles of pop songs appropriate to the "investitures" (and/or funerals) of specific individuals as judges. An example, perhaps appropriate for a swearing-in, might be He's Got the Whole World in His Hands. Warning: make sure the singer knows the correct lyrics: this one is often misunderstood to be He's Got the Whole World in His Pants (which, because it actually fits some men, might cause some unintended snickers). We welcome submissions. (08.05.2002)

 Donna Mills arrested! Donna Mills, the trial judge (not the great actress, depicted here in an interesting situation), was recently arrested and charged with DWI. It all reads like a story line out of Melrose Place, in which Donna Mills starred, only this time the actor is the judge, not the actress. According to The New York Daily News, Judge Mills, 49, who makes $136,700 a year and is married to a politically-powerful lawyer, was driving her Rolls-Royce (which has a "Supreme Court parking tag") shortly before midnight when she side-swiped and caused minor damage to two parked cars. The accident occurred in the parking lot of a department store that closed at 9:00 p.m. It is not clear why she was in the parking lot at that hour. The store is about 10 blocks from the luxury high-rise in which she lives. The judge, who showed a number of signs of being under the influence of alcohol, refused to submit to blood-alcohol testing. She was released without bail after an arraignment hearing that was held "within a few hours [after she was arrested], a remarkably short time in the Bronx court system where defendants regularly wait more than a day to see a judge." Police deny knowing she was a judge and giving her preferential treatment. Just who is Judge Donna Mills? She's the one who "made headlines when she filed a 1990 paternity suit against Queens Civil Court Judge Frederick Sampson, claiming he was the father of her then 11-year-old daughter. The outcome of that case could not immediately be determined." (07.31.2002) Update: Judge Mills is taking a break (New York Daily News 08.01.2002)

 We sincerely and shamefacedly and shagadelically apologize to C. J. Rehnquist. Why, you ask angrily, didn't we at least mention C. J. Rehnquist in our entry last Friday on "shagadelic law," in which we identified Hon. Alex Kozinski of the Ninth Circuit as the most shagadelic of judges? After all, the Chief is the guy who appeared at his nomination interview by President Dick Nixon wearing "a pink shirt, psychedelic tie, Hush Puppies, and bushy mutton-chop sideburns," prompting Nixon to refer to him later as "a clown." More ("Clowns in Gowns -- How Nixon's Rehnquist nomination screwed up the way we pick judges," by David Greenberg, Washington Monthly December 2001). And the Chief is the guy who wears a specially-designed $30,000 black robe, the one former White House Counsel John Dean has described as having "four gold chevrons on each arm -- inspired by Gilbert & Sullivan's Lord Chancellor from the comic operetta Iolanthe." More (John Dean, Writ 01.04.2002) Always willing to admit we're wrong if we are wrong, we apologize to the Chief and to any other shagadelic judges we offended by not including them. We try to be inclusive, and will try even harder in the future. If you are a judge who sees himself or herself as shagadelic and want to be included, let us know -- and tell us why. (07.30.2002)

Shagadelic law: 

a) "When I saw Austin Powers: The Spy Who Shagged Me, I decided to use it as a focus for my first class that semester. In addition to the  usual assignment of cases on the development of law regarding procreation and privacy, I asked the students to contemplate the family relationships portrayed in The Spy Who Shagged Me, and in its predecessor, Austin Powers, International Man of Mystery...." From a Shagadelic Focus on Family Law, Baby by a professor of family law, Shagadelic Sheila Simon (Picturing Justice, The On-Line Journal of Law & Popular Culture).

b) Is shagadelic sex permitted under Jewish law? Is Viagra Kosher by Benyamin Cohen in Jewsweek.

c) Can shagadelic humor constitute sexual harassment? "I was the only intern in the office for three weeks, and everyone seemed to find the British accent a great novelty .... All the familiar Austin Powers jokes came out with the standard lack of appreciation for how rude 'shagadelic' actually is!!! There were also a lot of intern jokes à la Monica Lewinsky which I bravely ignored!!" From Ruth Carswell -- Internship at the California State Capitol.

d) Finally, we offer a groovy opinion by the shagadelic Judge Alex Kozinski, a verbally deft and ultra cool motorcycle-riding rock'n'rollin' judge appointed by Rockin' Ronnie Reagan to the notorious Ninth Circuit who, although not a leading candidate, may be a sleeper candidate when a vacancy occurs next spring (my prediction) on the U.S. Supreme Court. Judge advises Barbie litigants to 'go chill' (Guardian Unlimited 07.26.2002). To read the opinion, which unfortunately is in pdf format, click here.

Further reading on Judge K:

i) Judge Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, an updated version of an article that was originally published at 103 Yale L. J. 463 (1993).

ii) United States v. Syufa Enterprises, 903 F.2d 659 (9 Cir. 1990), an opinion by Judge K in a civil antit-trust action by the Government against an operator of a chain of movie theaters in Las Vegas. Judge K, a movie buff, hid the titles of 215 movies in the text of the opinion (the titles are highlighted in the linked opinion).

iii) Who Gives a Hoot About Legal Scholarship? at 37 Houston L. Rev. 295 (2000).

iv) If Prexy Bush were to nominate Sexy Shagadelic Alexy to the Supreme Court, presumably more than one sanctimonious poll-watching member of the Senate Judiciary Committee would feign being offended by Big K's dissent (starting at p. 20) in Gerber v. Hickman, a 6-5 decision, filed 05.23.2002, upholding, against a constitutional challenge, a prison's refusal to allow an inmate to send semen to his wife, who desires to have a child by him before it is too late. (07.26.2002)

 The badge of judicial office. a) Apparently in Illinois many judges literally carry police-officer type badges that identify them as judges. The attorney for one judge who is charged with abusing his position says that the judge uses it to avoid courthouse metal detectors. But a complaint filed with the Illinois Courts Commission alleges, inter alia, that the judge flashed the badge to a suburban Chicago police officer to avoid a speeding ticket. An attorney with the Judicial Inquiry Board says merely carrying such a badge is not illegal or improper -- it's the way it is used that matters. More (Chicago Tribune, free reg. 07.25.2002).

 Internet libel. We've been critical of our Minnesota Supreme Court when we felt criticism was justified, e.g., in its adoption of and persistence in applying a rule that we felt improperly censored opposition candidates for judicial office while it protected incumbent judges from criticism. But we like the court's sensitivity to First Amendment interests in its recent ruling refusing to enforce an Alabama default libel judgment obtained against a Minnesota-based web citizen who posted an opinion on the internet critical of an Alabama scholar. See, Griffis v. Luban,    N.W.2d    (Minn. filed 07.11.2002) (FindLaw). If the court had ruled otherwise, I feel confident its decision would not have survived attack in the federal courts. (07.22.2002)

 Judicial newsmakers. Herewith, of threats allegedly made against a judge by an old friend, of a judge pitching products on TV, of judges with lifetime tenure and great government pension plans complaining during a recession that their $150,000+ salary is inadequate, of a judge presiding over defendants in the very cases in which he earlier had represented them, of a judge forgetting a judge is not also prosecutor, and of a judicial romance gone bad down in Mississippi that reads as if written by an unemployed William Faulkner desperately trying to get some quick cash as a hack writer for a TV soap opera:

 a) A tale of two women. It sounds like the plot outline of a made-for-TV movie: "Sheila Sullivan and Kathleen Blatz went to high school together in the 1970s, ambitious friends who would one day join an elite class of Minnesota businesswomen. But mental illness destroyed that friendship, and on Monday, Sullivan was arrested on charges of making death threats against Blatz, now chief justice of the state Supreme Court...." Woman accused of threatening Blatz, (St. Paul Pioneer Press 07.16.2002). C.J. Blatz was one of the six Minnesota Supreme Court Chief Justices (Knutson, Sheran, Amdahl, Popovich, Keith, Blatz) with whom I worked in my 28+ years as an aide to the Minnesota Supreme Court. Although I ran against her (and was trounced) in the 2000 general election, I recognize her many talents. My late mother was a prominent Republican in the era when the women in politics did much of the work behind the scenes and the men got the credit. Chief Justice Blatz, also a Republican, has accomplished what talented and politically-savvy women like my mother were pretty much barred from accomplishing. Last year there were rumors that some Republicans were urging Ms. Blatz to run against Norm Coleman, former St. Paul Mayor, who is President Bush's handpicked candidate for the seat in the U.S. Senate held by Paul Wellstone. See  Steve Perry, A Tale of Two Twits (Counter Punch 07.11.2002) (asking where "Waldo Wellstone" has been and referring to Coleman as an "inveterate lizard"). I wish Ms. Blatz had run; I would have voted for her; she would have won. I also believe that if ever there was a year in which a dynamic woman could have been elected governor, this was the year. The last member of the court to resign and run for governor was Luther Youngdahl, in 1946. He won. I wish Ms. Blatz had run; I would have voted for her; she would have won. (07.16.2002)

 b) Judge as celebrity. "Judge Paschal A. English Jr. was savvy and likable enough to become one of the final four contestants on the CBS reality show Survivor:Marquesas. Now that 'Pappy,' as he was known on the show, is back on the Fayette County, Ga., bench, a question has come up as to whether judicial ethics canons prevent him from cashing in on his newfound celebrity status...." 'Survivor' Judge Fuels an Ethics Debate (Law.Com via Yahoo 07.16.2002). I sort of like the idea of judges endorsing products -- at least, after they retire. "Hi, I'm 'Nino' Scalia. You may remember me. I used to be a member of the U.S. Supreme Court. Sometimes late at night, struggling over a judicial matter of great importance to the country -- e.g., should the court elect Al Gore or George Bush -- I needed to take a break. I can't tell you how many times Coke® was a part of that break. You might just say that Coke® and I made history together. Fact is, we still are doin' it." (07.16.2002)

 c) Nobody knows the trouble I see. "Facing a severe budget shortfall in an election year, state lawmakers blocked pay raises for themselves and other state officials this spring. Now some Illinois judges say they may go to court to get the extra money...." Illinois judges upset with pay freeze caused by tight budget (The Times Online 07.15.2002). "Federal judges are giving up their jobs in record numbers for more profitable private careers, two Supreme Court justices told a commission Monday...." Supreme Court justices make case for judicial pay raises (AP via NJ.Com 07.15.2002). BurtLaw on judicial salaries -- are they really too low? (07.16.2002)

 d) Whoops, mistakes may have been made. A special prosecutor in Washington recommended the removal of a part-time municipal judge for, inter alia, presiding in the very cases in which, earlier in the proceedings, he had acted as court-appointed counsel for the defendants. The judge explained that "after reviewing the judicial canons, he...realized he had made an unintentional mistake by serving as a judge in those cases." He added words to the effect that in each case "his former clients had agreed to have him preside over their cases rather than wait for [the regular judge] to return from an absence." More (Spokesman-Review 05.02.2002). The state board of judicial conduct now has recommended a 120-day suspension and censure rather than removal. Other judges will make the final decision. More (Seattle Post-Intelligencer 07.17.2002).

 e) The ex parte approach to prosecuting while judging. There's an old saying that where one stands on issues depends on where one sits. Thus, sometimes an inflexible prosecutor may, as a judge, be a model of fairness. But some prosecutors have a hard time making the transition. If the allegations are true, that seems to be the case with a judicial officer in Australia, which is one of our common law cousins. The magistrate allegedly summoned a prosecutor into his chambers in a misdemeanor police impersonation case and, ex parte, suggested that the prosecutor charge him with a 20-year felony, enticing children. The magistrate allegedly said, "He's a f------ paedophile c---, I'm sickened by the sight of him. He's always getting off; it's a shame he's only going to get six months and a fine; he deserves longer...Of course this conversation never took place." The prosecutor says that after speaking to a superior, he returned to the judge's chambers and told him he should disqualify himself. The judge then allegedly threatened to "put it on the record that you approached me." Defense counsel says that when she got wind of this, she approached the judge and also asked him to disqualify himself and that he responded by implying he'd take action against her if she put it on the record. More (Canberra Times 07.17.2002).

f) Mississippi soap opera.  Funny names, sad story, happy ending? i) Judge Gerald Hosemann, a Mississippi judge (or is it pronounced "jedge"?) was charged with aggravated assault based on allegations he severely beat his former court reporter and, well, "friend," Juanita Johnston. He denied the allegations, claiming they just had a verbal dispute. ii) While she was in hospital recovering, her friends maintained a vigil. She said she didn't want to see Hosemann. More. iii) Judge Bobby DeLaughter, a colleague, orally issued a gag order that Hosemann, who continued to hear cases, ignored by publicly calling the charge "a hoax." DeLaughter then issued a second, apparently written, one, saying: "If Hosemann, himself a judge, requires a special court order for him to understand that he also is prohibited from making extra-judicial statements that would interfere with both sides receiving a fair trial, he now has it." That was in February. iv) Hosemann resigned in March but then quickly rescinded his resignation. Johnston recanted, but the DA said he was proceeding with the case nonetheless. More. v) Hosemann subsequently pleaded guilty to misdemeanor disorderly conduct & the felony charge was dismissed. More. vi) The state judicial conduct folks then dropped their complaint & Ms. Johnston was quoted as saying, "I'm just glad it ended the way it did. He is an innocent man [link to lyrics of Billy Joel's song], and he can now stay on the bench." More. vii) How long he may stay on the bench depends on the voters, because he has opposition in the coming election. More. viii) I don't know how this saga will end. But those of us who like happy endings are entitled to hope that in the final scene Juanita & Gerald will run toward each other in slow motion, with the orchestral background music swelling to a crescendo. (07.16.2002) For more stories about judges as human beings, just like you & me, see BurtLaw's Court Gazing I & II & III & IV.

 Grounds for impeachment? Recently the U.S. Court of Appeals for the Sixth Circuit decided an important and controversial constitutional issue regarding the affirmative action admissions policy of the University of Michigan Law School by a vote of 5-4. In a dissent, a judge charged that the chief judge delayed a request for review for four months, until two judges, who may well have voted with the four dissenters, had gone on senior status. One of the judges voting with the majority responded that the delay resulted from there having been a backlog of petitions. The chairman of the U.S. House Judiciary Committee has written the chief judge saying that he is compelled to investigate possible judicial misconduct by a federal judge. More (CNN 07.04.2002). Some may view the inquiry as political. It seems to me, however, that it would be negligent of the chair not to investigate, given the nature of the allegation, one made publicly and contemporaneously by a member of the court in question. If a chief judge of any appellate court, state or federal, were found to have directly or indirectly delayed setting a controversial case on the calendar for an improper reason, that would constitute an impeachable offense. In the case of a state judge, the judiciary committee of the state's house of representative typically would be charged with conducting an investigation of misconduct of this nature. Thus, e.g., if the chief justice of a state supreme court were alleged by a credible source to have ordered the person responsible for the calendar to delay setting a possibly controversial case on the calendar until after an election, because the court's decision conceivably might be an issue in the election, the chair of the house judiciary committee really would have no choice but to investigate the allegation. Similarly, if the committee found the allegation to be credible, the committee would have no honorable choice but to draw articles of impeachment. It's, shall we say, a BurtLaw. (07.08.2002)

 Judge apologizes after being reprimanded. Somewhere in these United States a trial judge named Rick Davis apologized yesterday because he lost his cool & sent a letter to the D.A., Bill Turner, a) accusing Turner of having mocked him, which he equated with "defecating on Mt. Sinai," and b) saying that an Assistant D.A., Laura Cass, had the compassion of "an Auschwitz camp guard." The judicial ethics folks have ordered Judge Davis to complete eight hours of special instruction by a "mentor" judge. More (Bryan-College Station Eagle 07.06.2002)

 Forbidden judicial pleasures. Several months ago I engaged in a little amateur psychoanalysis in an attempt to explain why some judges sometimes engage in such seemingly injudicious conduct as, e.g., getting drunk and making fools of themselves at taxpayer-funded judicial conferences. Click here to read our tentative explanation and modest proposal of one possible solution. We've collected numerous examples under the heading of Court Gazing I, II, III, IV & V. Now we have the opinion of an expert, Dr. Elizabeth Blurton, who is a clinical psychologist. According to today's South China Morning Post, she gave testimony yesterday at a trial in Hong Kong of a man accused of staging illegal sex parties featuring bondage and sado-masochism. Testifying as a defense witness, Blurton said that, at least relatively speaking, "people like judges and company directors" are likely to be drawn to bondage and S&M because of what she described as their "demanding and restrictive careers." More specifically, she said, "Maybe their careers are so restrictive that they are not allowed to show vulnerability and to be submissive in ordinary life." More (Independent Newspapers Online 07.05.2002). That's sort of what I was getting at in my above-cited "tentative explanation and modest proposal." Perhaps male judges who are hen-pecked by domineering wives don't know how lucky they are or from what em-bare-ass-ing possibly career-ending calamities their bossy-boss wives have saved them. :-) (07.05.2002)

Those taxpayer-funded judicial conferences.  Ever wondered what goes on at them? Do they withstand basic cost-benefit analysis? I don't know the answer. I've never been big on stuff like that. I'm guessing it's hard to generalize. If I were a judge, I wouldn't go to one if you paid me double, but then "that's me." In any event, Judge Chas. Cope, who faces discipline in his home state over drunken misconduct at an out-of-state judicial conference in California, reportedly testified at a disciplinary hearing yesterday that he blames his misconduct partly on his own stupidity and partly on the alcohol that "flows freely" at these conferences. According to the Tampa Tribune 06.26.2002, he testified that "they have receptions all the time where alcohol is served." He admitted he was drunk in public but said he didn't think he did anything "unique" because judges sometimes get drunk at these conferences. (Perhaps he was alluding to the outrageous conduct of the notorious Judge Joyce Julian at such a conference late last fall.) While admitting he was drunk, he denied that he committed the misdemeanors he stands charged in California with committing while drunk: battery, peeping and prowling, aggravated trespass, and theft. More. For earlier reports, click here and here. (06.26.2002) Update: JQC dismisses some counts alleging misconduct by Cope (TampaTribune 06.27.2002).

 "Fair is as fair does." Pretty funny news item in Atlanta Journal-Constitution 06.26.2002 about pistol-packing Judge Scott Childress, who ran for a part-time judicial position paying $36,000, then quickly asked the city council to pay him $115,000 (although he says he'd be satisfied with $80,000). During one court session, he reportedly said to the defendants with traffic tickets: "You want fairness? OK. Fair is as fair does, I always say. So if you want to contact the mayor and city have the power and means to persuade them more than I do [to give me the money I've requested]." (06.26.2002)

 Supreme Court trading card. The folks at Infinite Jest, who brought us the American Crusade Trading Cards, yesterday (06.25.2002) added a U.S. Supreme Court Trading Card, bearing the message "Inter arma silent leges," meaning, "During war the law is silent," meaning in turn, "We're going to keep our eyes, ears & mouths shut, Mr. Commander-in-Chief, while you do whatever you feel is best." The members of the court are depicted with their eyes and mouths taped shut with American flags, and there's an inset of C.J. Rehnquist wearing a military uniform and saluting the President. (06.26.2002)

 Judges under seige. The latest on Judge McFalls (he sez he's now on medication that will make him sick -- as opposed to doing sick things? -- if he drinks alcohol again) & Judge Cope (his attorney's vigorous cross-examination of his accuser, who is depicted on the witness stand, angered her). Want background? Click here & here. (06.26.2002)

 Judge admonished over "Doggie Day" incident. At last year's "Doggie Day" parade a judge named Delwin McGee, who has been active in the community, serving as a Little League coach, was approached from behind by an 11-year-old kid, who sprayed the judge in the back with a water gun. The judge chased the kid, caught him, put his head in a head-lock, took the gun from him, pulled his head back by the hair, and sprayed the kid in the face. The judge's aim was to "teach the kid a lesson." Good judgment, judge. Now the folks who judge the judges have taught the judge a lesson, "admonishing" him for bringing discredit to the judiciary. More (MooreNews 06.18.2002)

 Campaigning for the bench from the bench? It's important that a judge be subtle in how he uses his office to campaign for retention or reelection. It's okay, I guess, for a judge to participate in the various taxpayer-financed community outreach programs and "tours" that are ostensibly designed to "educate the public"-- events that, he perhaps hopes in the wee small hours of the morning, will indirectly help him personally come election time. But it's not "OK" in "OK" to say things from the bench like "remember me at election time" or "I'm running for office again this time, hope you remember me." That is part of what Doyle Blythe, a trial judge, is alleged to have done. Blythe, who is the subject of an "ouster trial" before the State Court on the Judiciary, is also alleged to have conducted unauthorized "late-night hearings" at a hospital "for the purpose of determining if terminally ill patients should be kept on life support systems." More (NewsOK 06.18.2002). Sounds ghoulish, right? But again, perhaps it's a matter of subtlety. It's not outside the realm of possibility that he could have pulled it off, and increased his chances of reelection, if he'd held the euthanasia hearings in broad daylight in a high school auditorium with school kids present and followed it up with a Q&A session, a photo-op lunch in the cafeteria, and visits to classrooms to discuss elder law, the judicial process, etc. :-) Update: Doyle Blythe testifies he's target of a vendetta (NewsOK 06.20.2002).

 Sunshine and fresh air as judicial disinfectants. Just last week I posted a comment on the subject of excessive judicial secrecy in Minnesota and elsewhere and suggested that, whatever one's views on some particulars, one couldn't justify the refusal of some courts to even reveal the actual votes of individual justices on petitions for review, information that is valuable come election day in states like Minnesota to the employers and supervisors of all judges, the voters. See entry dated 05.31.2002, "Let the sun shine in," below. Then on Sunday, 06.02, the Minneapolis Star-Tribune's ombudsperson, Lou Gelfand, recounted that paper's experience in trying unsuccessfully to obtain from the Minnesota Supreme Court the votes of individual justices in a recent controversial case the court reviewed. Minnesotans should know how justices voted. In that case, one judge elected to recuse (take no part), something that the judge in question typically does not explain. The remaining judges split 3-3, which meant that, there not being a majority of votes to overturn the court of appeals' decision, that decision stands as the law of the case, though not necessarily as controlling or persuasive precedent.

The result is that, as a result of a break-down of the normal process -- which envisions the sitting of an uneven number (7) of justices -- the appellant who obtained review of the court of appeals' decision was denied the sort of review (one resulting in a decision up or down) that the court itself earlier determined, in granting review, the party was entitled to receive. (As an aside, this sort of breakdown easily can be avoided, if the court knows in advance of argument that one judge will take no part, by the simple expedient of randomly selecting another judge, preferably a retired supreme court judge not in practice, to temporarily sit as a supreme court justice in the hearing of the case.) It is bad enough that the appellant did not receive the "justice" to which it was entitled (in the form of an up or down vote rather than a default "affirmance by tie"), but the court has compounded the problem by refusing to reveal, to the parties and the public, information which I believe they are entitled to receive -- specifically, the votes of the individual judges. Worse, the judges have chosen to "hide" behind their resident, salaried "public information officer" (p.r. person), refusing to directly answer a reporter's questions about the secrecy policy. This is all unfortunate and contrary to basic principles of openness and transparency in government.

Several points: 1) For well over a hundred years the court  got along quite well without a "public information officer" or press liaison or p.r. person. In these troubled economic times requiring budgetary restraint and cost-cutting, the court should consider eliminating this position. If the members of the court have time to make large numbers of public appearances, something of which they are so proud, they ought to be willing in situations like this to speak directly with members of the press rather than through a p.r. person. 2) It is no secret that in the days before the court had a resident p.r. person, Chief Justice Amdahl not only frequently answered his own phone but was always willing to talk with the press, and even members of the public (his employers), to explain court policy and procedures. This is the sort of openness and availability on the part of government officials that de Tocqueville identified as uniquely American in his travels through America in the 1830's. Our current chief justice and associate justices ought to follow Chief Justice Amdahl's Tocquevillian example. 3) Not surprisingly, given what I just said, Mr. Amdahl, although now retired, is still as open as ever, apparently expressing to the Strib his opinion that the court's secrecy policy in this instance is wrong. 4) He's right. The policy in this instance is wrong. And, just using my home computer and a non-legal search engine, Google, I was quickly able to find decisions by other state supreme courts -- e.g., Wisconsin and Colorado -- identifying the votes of the individual justices in this situation. 5) In my opinion, the court in general needs to make significant changes to make itself more open and accountable to the voters. The court has been bold in opening up other courts. I refer, of course, to its decision to open juvenile hearings and court records regarding abused & neglected kids. In connection with that decision, Chief Justice Blatz (depicted left) was quoted as saying, "It is my fundamental belief that the power of the court system is derived from the trust and confidence of the people in the judiciary. You cannot have that trust and confidence when the people cannot get into the courtroom." The court can begin to make that rhetoric a practical reality by turning its attention from other courts to its own antiquated, unjustified policies and procedures regarding supreme court secrecy. For more of my views on this topic, see my essay BurtLaw on Judicial Independence and Accountability, a slightly-modified version of an essay I wrote in connection with my unsuccessful noncampaign for the supreme court in 2000. A good start would be to reverse itself, admit error and a) reveal the votes of the individual justices in the case in question and b) adopt procedures that will help prevent such unfortunate and unjust default "affirmance-by-ties" in the future. In the words of the old Sunday School song, Open up your heart & let the sun shine in. More later. (06.03.2002)

 Let the sun shine in. In Minnesota a party who is dissatisfied with a decision by the first-level appeals court, the court of appeals, is not entitled to appeal the decision to the Minnesota Supreme Court. Rather, the party may petition the supreme court for review. Typically, assuming all seven justices participate in the decision on the petition, it takes three votes for review in order to obtain review. The court grants only a small percentage of these petitions -- far too small, in my opinion, given the court's relatively light caseload. Other state courts typically have a similar two-tier appellate process: appeal as of right to the first court, with permission only to the supreme court. Like so much of what these state supreme courts do, much of the court's work on these petitions is shrouded in secrecy. In each case, the litigants -- and the members of the the public, for that matter -- typically don't know or have a means of knowing a) which staff attorney researched the petition and prepared a legal memorandum on the petition; b) what effort the staff attorney put into preparing the memorandum or what she said in the memorandum; c) whether or not an individual judge actually read the petition or the briefs filed in the court of appeals or the court of appeals' decision, or whether the judge examined the record, or whether the judge read any of the cases cited in the petition or did any independent legal research; d) whether the petition was discussed at a conference on the petitions or whether it was simply voted on; e) how the individual judges voted. Some folks in Texas -- which has a nine-member supreme court, with four votes needed to obtain review -- are a little concerned that they can't even find out how individual judges voted on a petition or what the final tally was -- 9-0, 7-2, etc. In 1996 one judge on the Texas court argued that the court ought to make public its votes, arguing that "If our votes on applications were always public, some would change." Some state supreme courts now do reveal at least that much. These include: Alabama, Alaska, California, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, New Mexico, Ohio, Oklahoma, Utah, and West Virginia. But the Texas court thus far has refused to provide the public with even this minimal cipher of information. In a complaint filed in federal court, the folks in Texas I referred to, including Texans for Public Justice, argue:

Law firms, lawyers, and other donors who have made campaign contributions regularly submit petitions for review to the Court.  The fact that a litigant or attorney has contributed to a justice does not disqualify the justice from that case or mandate recusal.  Fifty two percent of the money raised by the ten justices who faced an election from 1994 through 1998 came from lawyers, law firms and litigants who filed petitions for review during this period, according to a recent study by Texans for Public Justice.  That study found that in the aggregate, petitions from large donors were approximately ten times more successful than those of non-donors or small donors...Votes on petitions for review constitute judicial decisions....Public access to judicial decisions, including votes on petitions for review, plays a significant positive role in the functioning of the judiciary.  The public interest in disclosure is heightened by the selection of judges through privately funded elections.   Secrecy prevents voters and the public from holding the justices accountable for their record in office.  Because the law permits the justices to accept large campaign contributions, disclosure of the justicesí votes on petitions for review is necessary for voters and the public to monitor the treatment given to large contributors and thereby deter the appearance or reality of unfair influence by those contributors....

In an essay I wrote on the subject of Judicial Independence and Accountability in the summer of 2000 in connection with my unsuccessful non-campaign for election to the state supreme court, I said, "One of the keys to my vision of real judicial accountability is more openness, and more detailed openness, with respect to judicial work activity and the judicial work product." Frankly, although there is room for disagreement among reasonable people on the subject, I would go much further in pulling open the plush red velour curtains that keep the sun of public scrutiny from shining upon the internal workings of our state supreme courts. But, for god's sake, should voters have to file a lawsuit in federal court in order to gain access to the simple fact of how a particular judge voted in a particular matter decided by the court, information they need in scrutinizing and evaluating the judges? I don't think so. (05.31.2002)

Those "problematical panties" the judge insists he saw.   His Honor, Judge Chas. Cope, a Florida judge, is trying to cope with possible career-ending allegations that he engaged in "peeping Tom"-type behavior while intoxicated at a judicial conference in California. We've mentioned him before. Everyone agrees that he met a 31-year-old woman, a "vet," and her mom, a "doc," both on vacation, & that they were drunk together. They claim he later tried to enter their room without permission using a key they assumed they'd lost. He denies it was he who tried to enter their room, but he "sez" that the previous night the daughter was in his room voluntarily and "got naked," or nearly so, tho nuthin' really happened in the line of Cope-you-lation or other sexual contact. In supposed Spandex-like support of his claim, he sez specifically he noted that she was wearing a thong. She sez no, she didn't go to his room and remove her clothes and she sez that while she admittedly does own thong underwear, she'd left her thongs at home. Here's a link to story (Word for word - Those problematical panties, by Mike Wilson, Floridian 05.21.2002), with actual excerpts (!!!) from depositions focusing on this all-important public issue. (05.21.2002, as revised 05.22.2002) For more examples of judges nabbed while or accused of "behaving badly," click here, here, here, & here.

 Limping lawyers. Thailand's Constitutional Court has upheld a judicial commission's ruling that two lawyers with limps, resulting from childhood polio, are disqualified thereby from becoming judges. According to Singapore Straits Times, the commission concluded that the two men "were not suited to the post [because] judges must be held in high regard by society and must have an appearance to inspire awe and respect." Hmm. I, too, had childhood polio. Maybe that's why, in my many years as a judicial aide, I was always kept in the court's back room, so to speak. Trouble with that theory is that Peter S. Popovich, a chief justice I was honored to work with, himself had had polio, about the same time I did, in the late 1940's. I still have the liitle wooden blue cane I used while I was recuperating. I don't limp anymore but my left leg is slightly shorter than my right as a result of the polio, something tailors always notice instantly when fitting me with slacks. The shorter left leg actually became the opposite of a handicap, because it allowed me to run the counter-clockwise curve better as anchor of my high school's record-setting 4x220-yard relay team when I was a senior -- yet another example of the "law of compensation" at work. As Emerson put it in his great essay, Compensation, which always bears re-reading, "A fever, a mutilation, a cruel disappointment, a loss of wealth, a loss of friends, seems at the moment unpaid loss, and unpayable. But the sure years reveal the deep remedial force that underlies all facts...." Mother Theresa used to refer to "The gift of suffering." My guess is that those two Thai guys probably would be better judges by virtue of their having suffered. Suffering gives people gravitas, something it ain't bad for a judge to have. (05.05.2002)

 Whoops, mistakes may have been made. A special prosecutor in Washington has recommended the removal of a part-time municipal judge for, inter alia, presiding in the very cases in which, earlier in the proceedings, he had acted as court-appointed counsel for the defendants. The judge explained that "after reviewing the judicial canons, he...realized he had made an unintentional mistake by serving as a judge in those cases." He added words to the effect that in each case "his former clients had agreed to have him preside over their cases rather than wait for [the regular judge] to return from an absence." More (Spokesman-Review). (05.02.2002)

 Does ADR need reining in? Last fall the San Francisco Chronicle published a series of articles on so-called "private justice," which I noted then. The articles addressed a number of concerns, for example, whether there is a serious risk that sitting judges, thinking about what to do after leaving the bench (perhaps because of mandatory retirement), are conducting themselves on the bench in such a way as to make themselves more attractive to arbitration firms on leaving the bench. More. Now the State Judicial Council and the California Assembly's judicial committee have responded by adopting tough new ethical standards. State adopts tough ethical standards for arbitrators - Conflict-of-interest disclosure rules called 'important turning point' (San Francisco Chronicle 04.20.2002). One hopes every state will adopt tougher ADR ethical standards -- and consider, at the same time, doing away with mandatory retirement of judges -- the latter an unwise, discriminatory policy that funnels our most-experienced judges into the lucrative system of private justice and replaces them, in many instances, with inexperienced, over-confident neophyte lawyers who seem to think, incredibly, that inexperience and experience of judges on an appellate court are "of equal value" and that judging merely involves "read[ing] the cases," something "we can all [do]." (04.22.2002)

 Dept. of novel allegations of judicial misconduct. Brenda Humphrey is a 48-year-old woman who in 1988 (the same year I bought this car, which I'm still driving) was convicted of capital offenses for participating with a co-defendant, Gregory Wilson, in the kidnapping, rape and murder of a woman named Deborah Pooley. Wilson was sentenced to death and Humphrey to life in prison. Both their convictions and sentences were affirmed on direct appeal. Now, however, a post-conviction evidentiary hearing is going to be held, in July, on Humphrey's scandalous claim that -- before, during and after her trial -- she was involved in a sexual relationship with a trial judge, not the one who presided at her trial but another one, James Gilliece. She claims Gilliece told her not to worry about the outcome of her trial, causing her to ignore to her detriment the advice of defense counsel during trial. She apparently argues if she had followed defense counsel's advice, she'd have been acquitted or convicted of a less-serious offense. Conveniently for Humphrey, Gilliece is not around to confirm or rebut the claim. He died in 1993. But Humphrey claims both the prosecutor and defense counsel, as well as others, knew about the affair and covered it up. The judge who will preside at the evidentiary hearing has informed counsel he may take a more active role than he normally takes in such a hearing, including calling and questioning certain witnesses as the court's witnesses. More (Kentucky Post 04.19.2002).

 When may a judge "speak out"? It's a question the disciplinary folks are considering in Ontario in the case of "Madam Justice Lesley Baldwin," who is "accused of acting as a lobbyist for domestic abuse victims." In her defense, the judge says she was "trying to 'save lives or serious bodily harm' when she sent a letter to the province's attorney-general endorsing measures aimed at reducing spousal assault...." More (Toronto Star 04.04.2002)

 Judiciary in the news:

a) Worth a look? Yes. I'm referring to Here comes the judge -- as a hot campaign issue in Capitol Hill Blue 04.03.2002.

b) Worth a look? The state A.G. thinks so. I'm referring to the conduct of Judge Doyle Blythe. "In his seven years on the bench, Pushmataha County Judge Doyle Blythe has been accused of everything from co-hosting a campaign picnic for a sheriff's candidate to encouraging inmates to file a grievance against their attorneys to conducting 'euthanasia hearings' at the county hospital." The A.G. has petitioned for the judge's removal from office. The judge said he's not worried. More (The Oklahoman 04.03.2002).

c) Worth a look? Already looked at and decided. An auditor looked at "the books" and discovered that a Los Angeles judges association was using fees intended for the court's general fund, not for the judges association, to pay for judicial retirement parties, gifts, etc. More (LA Times 04.03.02) The old expression "Look for the woman" in the judicial context perhaps should be "Look for the slush fund." It would be interesting to see what an intensive rather than casual audit of "the books" of various courts around the country might find. For example, if a funded position is vacant for six months, does the court, as it should, report this to the legislature or other appropriating body or does it "use" the money for other purposes? I dunno if this is done but I'd like to know, just out of curiosity. And, as a general matter, I'd like it if the judicial branch in each state was required to make available to the public, over the internet, a specific and detailed item-by-item budget (who is paid what, what does a particular judge's expense account record reveal, how much did the court pay for each new computer, etc.). More.

d) Worth a look? I suspect not, but hizonner didn't give her the option of not looking.  I'm referring to the now-notorious Judge H. Patrick McFalls, who reportedly deliberately let his pants and shorts fall the other day, publicly exposing his buttocks to passing motorists, one of whom, a woman, came forward to complain. More (Pittsburgh Post-Gazette 04.02.2002). According to the report, McFalls was arrested for DWI nine hours later. If charged with and convicted of both offenses, may McFalls be sentenced for both offenses? In some states, Minnesota for example, it depends on whether the offenses may be said to have been committed as part of a "single behavioral incident." If so, then only one sentence is allowed. One suspects Judge McFalls may not be a real judge much longer, but perhaps he can find employ as one of the eccentric judges popular in TV shows about lawyers and judges -- perhaps N.Y.P.D. Blue which requires actors to consent as part of the contract of employ to exposing their butt on camera if the script calls for it.

e) Worth a look? Yes. It's worth a look because it's so bizarre: a court's upholding the firing of a secretary because the boss's wife (as boss's wives tend to do) hated her. More (NY Post 04.03.2002).
More "Court Gazing"? Click here, here, here, and here.

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.