April 2009
Speaker Addresses Perceived "Judicial Activism"
by Greg Slisz /10
Wabash College
4-24-09 --
At a time in which the impending replacement of
several Supreme Court justices looms in the nation’s
future, Executive Director for the Committee for
Justice Curt Levey spoke out against judicial
activism in the courts. "(The Committee for Justice
focuses) on what is the proper role of a judge.
Should a judge be a neutral umpire or should a judge
be an activist?" Levey asked. . . . Levey’s
Thursday night speech began with an explanation of
the Committee for Justice, which was founded in 2002
in response to systematic obstruction of many of
President Bush’s judicial nominees, most notably
Miguel Estrada. Republicans, Levey explained, needed
to respond to this problem. "Conservative activists
realized we really needed something to counter the
liberal groups on this issue that had been around at
least since [blocked Republican justice nominee]
Bork and had been very effective," Levey said. . .
. Democrats, Levey said, had filibustered judicial
nominees for nearly the entire past eight years
until Barack Obama became president and the
nominations were dropped. However, despite the
partisan nature of the committee, Levey stated the
aims of the committee were philosophical as well as
practical. "While trying to get Bush’s nominees
confirmed, we were also trying to educate people
about the proper role of the judge," he said. . . .
The very "role of the judge" is part of what made
activism so dangerous. Barack Obama’s statement
that he wanted judges who were empathetic to
peoples’ situations, Levey explained, destroyed the
objectivity that made the law such a useful
standard. "One of the problems with (empathy in the
law) is that it’s standardless. Who do you have
empathy for? And therefore, it’s really just a
license for unbridled judicial discretion," Levey
said.
September 2008
Judicial activism unconstitutional, former AG Meese
says
Tulsa Beacon
9-25-08 --
Former Attorney General Ed Meese warned against
Supreme Court judges who inject their personal bias
and make laws instead of just interpreting them. . .
. Meese spoke to a packed house at the Renaissance
Hotel in Tulsa last Thursday as part of
the 15th anniversary of The Oklahoma Council of
Public Affairs (OCPA), a conservative think tank
based in Oklahoma City. . . . Meese served as U.S.
Attorney General during the second term of President
Ronald Reagan. . . . “There is the conflict between
constitutional fidelity and judges who substitute
their own beliefs for the law,” Meese said. . . . In
1942, Meese said, the Supreme Court decision in
Wickard vs. Filburn opened the door to massive
federal control of issues that had been left to the
states by the U.S. Constitution. It expanded the
interstate commerce clause and allowed the federal
government to control almost any activity - whether
it involved more than one state or not.
Supreme Court Justice Scalia:
Nothing Qualifies Judge to Create Abortion Right
by Steven Ertelt, LifeNews.com Editor
9-16-08
-- Justice
Antonin Scalia is one of the most outspoken jurists
on the Supreme Court when it comes to talking about
abortion. Scalia repeated the mantra on Monday that
he's presented to college students and community
forums about how the high court doesn't have the
power to declare a right to abortion. . . . During a
speech at Utah State University's Taggart
Student Center, where 1,700 people came to hear the
respected judge tell it like it is, Scalia
criticized those jurists who engage in what he
called "abstract moralizing." . . . In addition to
faulty decisions like Roe v. Wade, Scalia said it
results in a corrupt political process where
citizens and politicians expect new judges to
"rewrite" the U.S. Constitution and make policy
decisions normally reserved for legislatures. . . .
"These are social preferences that can only be
handled in a political process," he said. . . .
According to a Salt Lake Tribune report, Scalia said
the cure for the problem is for Americans to view
the Constitution as a "static" document and support
judges who won't make up the law from the bench. . .
. Scalia touted his "originalist" views whereby he
says the Constitution has a fixed and knowable
meaning established at the time of its drafting. . .
. That applies to pro-life issues like abortion and
assisted suicide, he explained.
Roe v. Wade a classic example of judicial
activism
By: Ben Tarr, The
Daily Campus On-Line
9-12-08 --
Abortion has become a highly politicized issue in
American society. It is one of many issues which
divide Senators McCain and Obama in our upcoming
Presidential election. John McCain rightfully wishes
to overturn the famous
Roe v.
Wade (1973) case, which generally made
it much easier for women to secure abortions than
prior to the ruling. Barack Obama endorses the Roe
case; according to Obama's Web site, he received a
"100% pro-choice rating with Planned Parenthood and
NARAL Pro-Choice America." . . . President Bush
appointed two conservative, anti-Roe appointments to
the Supreme Court, Samuel Alito and John Roberts. In
addition, many of the Justices are older than the
light bulb, perhaps opening the door for the next
president to appoint justices to the Bench. The
Roe v. Wade case may soon be challenged, and the
Supreme Court balance is crucial in deciding what
the outcome of that future case will be. Future
justices must overturn the Roe case due to the poor
Constitutional reasoning employed during the ruling.
. . . Abortion opinions aside, the Roe v. Wade
Supreme Court ruling of 1973 exemplifies all that is
wrong with our Supreme Court. This case provides an
example where the Court deviated from its
responsibility, which is to judge the
constitutionality of a particular law. The Roe case
illustrates the deleterious effect on our democracy
when judges become political actors. . . . Roe
challenged the constitutionality of a Texas abortion
law which proscribed attempting an abortion unless
the purpose was to save the mother's life. The
majority opinion alleged that this law violated the
Fourteenth Amendment's Due Process Clause, which
protects the citizens' right to privacy against
state action. . . . The court ruled that the right
to privacy included a woman's right to terminate her
pregnancy, while also acknowledging in the opinion
that, "The Constitution does not explicitly mention
any right of privacy." . . . Claiming that the right
of privacy, which is the crux of the majority's
opinion, includes abortion is a massive stretch of
the Constitution and is dishonest; we have a
legislative branch to draft laws and a Supreme Court
to interpret the constitutionality of these law. Let
it stay that way.
Free Shipping on the new Apple iPods at BestBuy.com. Valid 9/14-10/4
Good Judges Are More Important Than Ever
By David B. Rivkin
Jr. & Lee A. Casey, Wallstreet Journal Opinion
9-11-08 --
Democrats have often caricatured conservatives'
concern with judges as part of what they consider an
"obsession" with abortion. In fact, over the last 40
years judicial activism has brought the courts to
the center of national policy making in virtually
all aspects of life. . . . However, before 9/11,
even the most activist judges generally did not
attempt to drive the nation's foreign and defense
policy. The Constitution reserves such matters to
the president and Congress, and constitutional
doctrines such as the separation of powers and
"political question" were recognized and applied by
courts as a means of avoiding much active engagement
in these areas. . . . Occasionally the judiciary did
intervene, as when the Supreme Court ruled against
President Harry Truman's seizure of the nation's
steel mills, to pre-empt a steelworkers' strike
during the Korean War, in
Youngstown Sheet & Tube v. Sawyer, 1952.
But the Court narrowly tailored its decision and did
not undertake an ongoing supervisory role in the
war. It simply made Truman give the mills back. . .
. Times, however, have changed.
Save America’s Judiciary from Judicial Activists
Because the next
President is likely to choose Justices that will
determine the outcome of important cases for the
next generation, the stakes for the Supreme Court
could not be higher than they are in this election.
WEBCommentary
Contributor Author: Michael J. Gaynor
9-10-08 --.
The
Judicial Confirmation Network helpfully
released a chart comparing the positions of the
Democratic and Republican parties on federal courts
and judges. . . . . The chart is based upon the
positions outlined in the two parties' respective
platforms from their conventions, as well as the
statements made by the presidential candidates for
each party. . . . . To each of the following
questions, the Republican Party answers YES and the
Democrat Party answers NO.
Calls judicial
activism a threat?
Opposes Kelo eminent
domain decision?
Opposes Court
granting legal rights to enemy combatants?
Opposes Court's
interference with death penalty?
Opposes courts
setting abortion policies?
Opposes judges
undermining traditional marriage laws?
Opposes judges
injecting foreign law into American jurisprudence?
Opposes Senate
inquiry into a judicial candidate's religious
convictions?
The Judicial
Confirmation Network is an organization of citizens
joined together to support the confirmation of
highly qualified individuals to the Supreme Court of
the United States. It works to ensure that the
confirmation process for all judicial nominees is
fair and that every nominee sent to the full Senate
receives an up or down vote. . . . . The Judicial
Confirmation Network understand that the proper role
of a judge or justice is to interpret the law and
the Constitution – not make up the law and deprive
the people of the right to govern ourselves—and a
judge or a justice should not use the power of the
court to impose his or her personal or political
agenda on the people. ******* "John McCain and the
Republican platform identify judicial activism as a
threat to self-government and reject judges
legislating from the bench. Barack Obama and the
Democratic platform do not, which is not surprising
given that Obama has said he prefers liberal
activist judges and would not appoint those who
practice judicial restraint.
MICHIGAN
Fight for the soul of Michigan’s highest court
By Eartha Jane Melzer
9-8-08 --
According to some, Michigan’s Chief Justice Clifford
Taylor is the leader of the finest court in the
nation. According to others, he’s a tool of big
business who has led a destructive attack on laws
protecting consumers and the environment, and his
court is the worst in the nation in terms of bowing
to political pressure. . . . What is certain is that
Taylor’s seat is the highest statewide position up
for grabs in this November’s election — and that
this little overlooked race at the bottom of the
ballot is the one most likely to actually affect
people’s lives. . . . Supporters say he is crucial
for the 4-3 decisions upholding pro-business laws
passed by Michigan’s Republican Legislature under
former Gov. John Engler. Many of the most
controversial recent decisions by the seven-member
court have been issued by a Taylor-led, four-vote
conservative majority.
|
|
August 2008
MISSISSIPPI
Justices Tell Colleague Not to Publish His Opinion.
Unprecedented?
Posted by Dan Slater,
WSJ Law Blog
8-22-08 --
The Law Blog knows we’re not supposed to declare
something a “first” unless we’re absolutely sure. So
we won’t do that today, because we’re not sure. But
we would like to put a question to the readership:
Has the majority of any court every voted to
prohibit a colleague from publishing a dissent? . .
. A loyal reader has alerted us that it happened
recently to Mississippi Supreme Court Justice Oliver
Diaz. Here’s the report from Northeast Mississippi’s
Daily Journal. . . . “My job as a Supreme
Court justice is to write opinions and dissents,
when necessary,” Diaz told the Daily Journal. “I was
prevented from doing so by a majority of the court.”
Diaz speculated that it “may be unprecedented in the
history of American jurisprudence.” The case at
issue was a wrongful death lawsuit filed by an
employee of the court against the Mississippi State
Veterans Affairs Board. . . . The DJ’s requests for
comments were not answered by Supreme Court Chief
Justice James Smith, Justice Michael Randolph and
Justice James Graves.
Click to read dissent (PDF)
Update: State Supreme Court releases
previously banned dissent
By Patsy R.
Brumfield, Daily Journal
8-22-08 --
It's public now - a dissenting opinion banned from
disclosure Thursday by a majority of the Mississippi
Supreme Court. . . . Clerk Jack Pool e-mailed to the
Daily Journal a copy of dissent by Presiding Justice
Oliver Diaz, which the justice wrote earlier this
week in reaction an En Banc decision to dismiss a
wrongful death case appeal. . . . After the
prohibition vote by Chief Justice Jim Smith and
justices William Waller Jr., George Carlton, Jess
Dickinson and Michael Randolph, Diaz gave the Daily
Journal a copy. . . . His dissent, which he
described as - really boring and bland, - disagreed
with this week's opinion from the court that it
would not hear an appeal it earlier said it would. .
. . Diaz's opinion was about the court's view in
wrongful death lawsuits - he argued against the
court's decision that the statute of limitations for
wrongful death lawsuits begins at the time of the
injury, not on the date of death. . . . "The obvious
result is that a wrongful death action may expire
before the decedent does," he said in his seven-page
document provided to the Daily Journal. . . . It's
still unclear what the justices' motives were behind
their ban on Diaz's dissent, which numerous longtime
court watchers termed from unusual to unbelievable.
NEW JERSEY
N.J. Supreme Court Judge Can Be Sued Personally for
Alleged Civil Rights Breach
Judge allegedly used
his authority to intervene in investigations into
whether his son was bullied by a classmate
Henry Gottlieb, New
Jersey Law Journal
8-19-08 --
New Jersey Supreme Court Justice Roberto Rivera-Soto
failed on Wednesday to escape a suit alleging he
trampled the civil rights of a former high school
classmate of his son. . . . Linda Feinberg, the
Mercer County Assignment Judge, ruled there is
enough evidence to sustain an allegation that
Rivera-Soto used the authority of his position to
intervene in school and municipal court
investigations of whether Conor Larkin bullied the
jurist's son Christian when they were Haddonfield
High School classmates in 2006. . . . At the same
time, Feinberg dismissed all of Larkin's claims
against the state and against the judiciary, ruling
that since the accusations against Rivera-Soto had
to do with actions he allegedly took as a private
individual, not in his capacity as a judge, the
state can't be liable. She also said the state and
Rivera-Soto in his official capacity are immune
under the state Civil Rights Act of 2004. . . . The
suit followed Rivera-Soto's
censure by his Supreme Court colleagues last year
for having ex-parte contacts with two judges and
handing his business card to officials involved in a
municipal court juvenile delinquency case he lodged
against Larkin.
OKLAHOMA
Courts keeping cases secret
District judges
sealing many documents
Tulsa World
8-11-08 --
Oklahoma's district court judges are sealing
thousands of court cases and documents — mostly
because attorneys simply asked them to. . . . More
than 2,300 cases statewide have received a judge's
order to make at least one record in the file not
available to the public, according to a Tulsa World
analysis going back to 2003. . . . These records are
added to a growing list of nonpublic court
information, including that generated in drug
courts, mental health courts and juvenile
proceedings. . . . Records that are being sealed
include financial records of companies and
hospitals, settlements in wrongful-death lawsuits,
divorce proceedings, protective orders and name
changes. . . . Joey Senat, past president of Freedom
of Information Oklahoma, said he was surprised by
the amount of sealed records. . . . "I had heard of
this going on in other states, but I'm really
disappointed this is happening to the courts in our
state," Senat said. "This is a real indication there
are two systems — one for the rich and powerful and
one for the rest of us. The public has been left out
of this process. . . . "One thing we need to
remember is that the judges who are signing those
orders are elected and the court clerks are elected.
If we want our records to stay open and stay
available, we need to be aware of who we are
electing as court clerks and judges. Open government
needs to be the issue." . . . The Tulsa World
requested information from the state's 77 court
clerks to review the types of records and cases
sealed by judicial orders since 2003. . . . Court
Clerks Sally Howe Smith of Tulsa County, Patricia
Presley of Oklahoma County and Sue Wells of Wagoner
County were the only clerks able to provide lists of
case numbers for analysis.
NEW JERSEY
Lawsuit against justice likely to continue
by Kate Coscarelli/The
Star-Ledger
|
AP PhotoJustice Roberto Rivera-Soto in a 2004 photo.
|
AP PhotoJustice Roberto Rivera-Soto in a 2004 photo.
8-8-08 --
A judge ruled today that the civil rights lawsuit
filed against New Jersey Supreme Court Justice
Roberto Rivera-Soto may continue. . . . Superior
Court Judge Linda Feinberg said she was tentatively
going to allow the case against the justice as an
individual, rather than in his official capacity as
a state jurist, to go ahead and allow lawyers to
gather more information. . . . It is possible that
Rivera-Soto acted "under the color of law," using
the influence of his post in a private setting. He
is being sued, as an individual and a jurist, by a
former teammate of the justice's son. . . . "One who
represents himself in a way using the power and
force of his position in a private setting where it
may have consequences... the color of law is broad
enough to encompass some of the allegations here,"
said Feinberg.
NEW JERSEY
Off with just a scratch: the greatest "dog ate my
homework" excuse in the history of N.J. politics
By Wally Edge
8-6-08 --
When New Jersey Judges get in trouble, their
colleagues may tend to go a little easy on them.
Superior Court Judge Rosemarie Williams, arrested
from drunk driving in 2006, received the minimum
sentence yesterday from Judge John Sweeney, a $631
fine and loss of her license for seven months. Five
years ago, Williams was suspended from the bench for
three months after a fight with her then-boyfriend.
She claimed that she was suffering from battered
woman's syndrome. . . . In March 1991,
Administrative Law Judge Florence Schreiber Powers
was convicted of shoplifting a pair of $29 watches
from T.J. Maxx in Lawrenceville. Powers, the
daughter of retired state Supreme Court Justice
Sidney Schreiber, admitted that she stole the two
watches but claimed diminished mental capacity. A
psychologist who testified at her trail outlined
nineteen different stresses, including an "ungodly"
vaginal itch. . . . ***** A Superior Court Judge
found her guilty after a two-day trial, but said a
$250 fine was sufficient punishment. '"I find no
reason to believe that defendant cannot continue to
perform the functions and duties of her office in a
manner consistent with her oath," said Judge Samuel
Lenox. "Indeed, this experience will probably cause
her to perform at an even higher level of dedication
than she has in the past." ********* Robert Clifford
pled guilty to DWI in 1989 while he was still
serving as an Associate Justice of the New Jersey
Supreme Court He was arrested again for DWI in 2000
when his vehicle struck a small bridge in his
hometown, Bernards. Because Clifford's earlier
conviction was more than ten years ago, the law
allowed him to be viewed as a first-time offender.
According to the Star-Ledger, "five state judges
have been sanctioned by the Supreme Court following
drunken driving convictions. Three were publicly
reprimanded, one was censured and one was suspended
for 60 days after he was convicted of a second
driving-while-intoxicated charge."
WEST VIRGINIA
High Court Review Sought on Judicial Recusals
W.Va. case triggers
key ethical query
Marcia Coyle, The
National Law Journal
8-4-08 --
The ethical hornets' nest stirred up by the
refusal of an acting West Virginia chief justice
to recuse himself from a multimillion-dollar
appeal involving his major campaign contributor has
reached the U.S. Supreme Court in a petition framing
today's increasingly unsettling intersection of
money and judicial elections. . . . The high court
petition, fall-out from a bitter battle between
competing coal companies, asks the justices to
resolve "a recurring issue of far-reaching national
importance." When, in the context of campaign
contributions, does due process demand a judge's
recusal? Caperton v. A.T. Massey Coal Co.,
No. 08-22. . . . "Although judicial elections -- and
contributions to elected judges -- are a
well-established means of selecting a state
judiciary, there will be rare cases where campaign
expenditures by a litigant create a constitutionally
unacceptable appearance of impropriety. This is such
a case," contends former Solicitor General Theodore
B. Olson, co-chairman of the appellate and
constitutional law group in the Washington office of
Los Angeles' Gibson, Dunn & Crutcher.
WISCONSIN
Judge: Court in 'vanguard' of changing law
Warns of criticism
of decisions 'that greatly benefit some interest
groups'
© 2008 WorldNetDaily
8-1-08 --
One Wisconsin Supreme Court justice says members of
the judiciary should expect to be challenged for
their impartiality on social issues these days. . .
. "A court that is in the vanguard of making and
changing law in a way that greatly benefits some
interest groups and seriously damages others is a
court that is actively, if inadvertently, promoting
the politicization of its own elections," Justice
David Prosser wrote in an concurring opinion
yesterday. . . . "Every litigant believes he is
entitled to an impartial review of his case. If
litigants do not believe they can get an impartial
review of their cases, they will inevitably attempt
to change the composition of the court," he said. .
. . Prosser's comments came in an opinion that
concurred in the rejection of concerns from a lawyer
that a different Wisconsin justice should not have participated in a case because the judge took
campaign money from people connected to the lawyer's
opponents. . . . The majority opinion said there was
no conflict of interest because the judge involved
himself determined there was no conflict of
interest. . . . "[State law] mandates a judge's
disqualification only when that judge makes a
determination that, in fact or in appearance, he or
she cannot act in an impartial manner," the ruling
from the high court said. . . . The decision means
attorney James Donohoo must pay a $90,000 penalty
that stemmed from a case prompted by claims from a
"gay" activist group that a visiting pastor had
advocated for the murders of homosexuals. . . . The
case that sparked Donohoo's dispute with the high
court was brought against a "gay' activist group
called Action Wisconsin, which later called itself
Fair Wisconsin. That group had described visiting
pastor Grant Storms, who appeared at a conference on
homofascism, as having advocated the murders of
homosexuals.
In the matter of attorneys fees in: Grant E.
Storms, plaintiff, v. Action Wisconsin Inc. and
Christopher Ott, defendants.
Case # 2006AP396
July 2008
WEST VIRGINIA
Supreme Court Justice takes strong stand
Brent Benjamin issues
60-page opinion dismissing calls that he step down
from Massey cases
by Justin D.
Anderson, Daily Mail Capitol Reporter
7-30-08 --
State Supreme Court Justice Brent Benjamin has
issued a 60-page opinion defending his decision to
continue hearing cases involving Massey Energy even
though its chief executive spent millions to defeat
his opponent for the court seat. . . . In the
strongly worded opinion filed Monday, Benjamin
called all the legal fuss over his participation in
a $50 million appeal by the coal giant "disturbing"
and took issue with what he said was an inference by
fellow Justice Joe Albright and another judge that
he had "actual and apparent" conflicts of interest
in the case.
Click here for a PDF of Benjamin's opinion
GENERAL
The War Against Law
America’s forefathers
had a profound respect for law. Today, law is being
trashed, and we are suffering the consequences.
Gerald Flurry, Editor
in Chief the Trumpet.com
7-28-08 --
The Greek Empire tried to establish the rule of law.
It failed, and the empire collapsed. The Roman
Empire also tried to build a society based on law.
It was unable to do so and the Roman Empire fell.
Many other empires experienced the same failure. . .
. The famous British historian Paul Johnson wrote an
article titled “No Law Without Order,
No Freedom Without Law.” It was printed
in the Sunday Telegraph, Dec. 26, 1999. In it he
wrote (emphasis mine throughout):
“The rule of law, as
distinct from the rule of a person, or class or
people, and as opposed to the rule of force, is an
abstract, sophisticated concept. It is mighty
difficult to achieve. But until it is achieved, and
established in the public mind with such vehemence
that masses of individuals are prepared to die to uphold it, no other form of progress can be regarded
as secure. The Greeks had tried to establish the
rule of law but failed. The Romans had succeeded
under their republic but Caesar and his successors
had destroyed it. The essence of the rule of law is
its impersonality, omnipotence and ubiquity. It is
the same law for everyone, everywhere—kings,
emperors, high priests, the state itself, are
subject to it. If exceptions are made, the rule of
law begins to collapse—that was the grand lesson of
antiquity.”
Yes, “that was the
grand lesson” of history. But have we learned that
lesson? Failure to do so means we pay the supreme
sacrifice—loss of our republic. . . . The continual
problem of man has been his failure to learn from
history. . . . Are “masses of individuals… prepared
to die” to uphold America’s rule of law? Mr. Johnson
states that this is our only security! . . . In many
cases our people are confused about what the law is.
And many others want to change our laws, including
our constitutional law. . . . Who is going to be
willing to die for such confusion? Will such a
deeply divided people sacrifice their lives for our
republic and the rule of law? . . . Our people in
Britain and America lack the
will to even sacrifice a few soldiers’ lives to
fight a ground war. Our generals know that we lack
the will to win any hard-fought battle—even if it
directly relates to our own freedom. For example, we
had to be bombed into World War ii. Even one of the
most diabolical leaders in history, Adolf Hitler,
could not rouse us to fight until we were bombed by
Japan.
STATE COURTS
Big Bucks Buying Supreme Court Decisions? W.
Va. Case Is Pending
Campaign Finance --
But We're Talking Judicial Races, Here.
A Buzzflash News
Analysis by Christine Bowman
7-28-08 --
Have you ever donated to the campaign coffers of a
Supreme Court justice? Don't assume that others
haven't. . . . Of course, US Supreme Court Justices
John Roberts, Scalia and company are presidential
appointees, which presents problems of its own in
terms of political bias. But many Supreme Court
justices serving at the state level must run for
office. Not surprisingly, corporate lobbyists have
jumped into some of those races in a big way. . . .
As The Chicago Tribune reported Monday, corporate
campaign donations to state-level candidates for
Supreme Court justice slots are soaring. And in some
instances, big donations are rolling in from
lobbyist/donors that stand to gain a lot from
specific decisions that elected justices are slated
to make. . . . The Tribune details troubling
big-money judicial races in Wisconsin,
Illinois, Ohio,
Louisiana and West Virginia.
They note that $165 million has been spent in
Supreme Court races nationally in the 1999-207
election cycles. Two candidates, alone, competing
for a seat on the Wisconsin Supreme Court, spent $6
million combined in their recent contest. Of that,
$4.8 million came from "outside groups." . . . The
US Supreme Court is currently reviewing one
particularly troubling West Virginia case where a
state justice may have acted to protect a major
campaign coffer source: . . . Arguments are pending
on a petition to the U.S. Supreme Court that stems
from the refusal of a West Virginia Supreme Court of
Appeals justice to disqualify himself in a case
involving a contributor who supported his election
campaign with more than $3 million. The justice
repeatedly ruled in favor of the contributor in a
$50 million jury verdict against the contributor's
company. . . . Theodore Olson, a former U.S.
solicitor general who filed the appeal with the
Supreme Court, said a "line needs to be drawn
somewhere to prevent a judge from hearing cases
involving a person who has made massive campaign
contributions to benefit the judge." . . . One of
the justices on the West Virginia court said the
relationship between the contributor, a coal company
executive, and Justice Brent Benjamin has "created a
cancer in the affairs of this court. ... I shudder
to think of the cynicism and disgust that lawyers,
judges and citizens of this wonderful state will
feel about our justice system," said Justice Larry
Starcher.
FEDERAL COURTS
Another Case Pulled from Judge Manuel Real’s Docket
Posted by Dan Slater,
WSJ Blog
7-24-08 --Things are bad and getting worse for U.S. District Judge Manuel Real. In
March,
we told you about Judge Real getting
tossed from a securities fraud trial for allegedly
aiding the prosecution. . . . Today, the
NLJ reports that Ninth Circuit Court of
Appeals has removed Real, 84, from the Honda class
action, in which plaintiffs claim that the rear
suspension systems of particular Honda and Acura
vehicles are not of the “double wishbone” design, as
promised by the makers. . . . In an unpublished,
July 22 opinion, the Ninth Circuit revoked Real’s
order certifying a nationwide class against Honda,
saying the judge abused his discretion by certifying
the class on his own “without making any findings
regarding Rule 23’s requirements for class
certification.” . . . As the NLJ notes, Real — who
faced a potential impeachment hearing in Congress in
April 2006 over allegations that he interfered in a
bankruptcy case to help a woman whose parole he
supervised — has seen at least eight of his cases
snapped away by the 9th Circuit. (Congress wound up
dropping the impeachment.)
WASHINGTON
Impartiality key when picking judges
by Jeffrey G. Frank
and Morris G. Shore for the Yakima Herald-Republic
7-20-08 --
Judicial campaigns are growing nastier, nosier and
costlier. . . . For example, during the 2006
elections, the race between Washington state Chief
Justice Gerry Alexander and attorney John Groen was
marked by many negative and misleading third-party
ads on both sides. Nearly $3 million was spent on
Supreme Court races that year. . . . In West
Virginia, the sitting state Supreme Court Chief
Justice refused to recuse himself from a case in
which the losing party's CEO spent over $3 million on that justice's election. The chief justice
cast the deciding vote overturning the $50 million
judgment against the
CEO's company. Sadly, this is not a scene from a John Grisham novel. It is
happening in a state with judicial elections not
unlike our own. . . . It is this trend of large
campaign contributions, and the attendant risk to
the integrity of the judiciary, that led to the
formation of the Washington Committee for Ethical
Judicial Campaigns. Our specific mission is to
promote preservation of public trust and confidence
in the judiciary by encouraging fair and ethical
campaigns for State Supreme Court and Court of
Appeals positions. Similar groups have been formed
in many other states as the problem of over
politicizing judicial campaigns is not unique to our
state.
NEW JERSEY
2 Indicted in Ticket Case
By
The Associated Press
7-15-08 --
A former Jersey City judge and a former court
administrator have been indicted on charges that
they fixed parking tickets. . . . Wanda Molina, a
former Municipal Court chief judge, is accused of
dismissing eight parking tickets for her companion.
A grand jury also found evidence that the former
court administrator, Virginia Pagan, fixed 215
tickets for herself and her daughter. . . . Both
stepped down last year and would face at least five
years in prison if convicted of official misconduct
and tampering with and falsifying public records. .
. . The judge’s lawyer said she should be censured,
not indicted. Ms. Pagan’s lawyer said she does not
intend to plead guilty.
CALIFORNIA
Fearing Political Backlash, Judges Decide to Go
Public
Nasty campaigns and
California's gay marriage ruling lead to first forum
of its kind
Pamela A. MacLean,
The National Law Journal
7-14-08 --
The rise of nasty political campaigns targeting
elected state judges nationally, coupled with the
cost of judicial elections and a potential backlash
over the gay marriage decision, has prompted
California's chief justice to hold the first public
forum on preserving impartial courts. . . . Chief
Justice Ron George set out to head off rancorous
judicial election contests by launching public
discussion of the role of judges in a
forum on "Preserving Impartial Courts in
California." . . . Two former California
governors with differing judicial philosophies --
Pete Wilson, a Republican, and Gray Davis, a
Democrat -- are the main speakers. . . . "To stick
our heads in the sand and ignore the problem would
be the worst," said Judge Ira Kaufman of the rural
Plumas County Superior Court, who is president of
the California Judges Association and a forum
participant. . . . There has been a ramping up of
rhetoric nationally in recent years, said
Laurie Levenson, a professor at Loyola Law School,
Los Angeles and a participant in the scheduled
Tuesday forum in Sacramento, Calif.
DISTRICT OF COLUMBIA
The Murphy Court: Human Life Has No Value
By Phil Hart,
NewsWithViews.com
7-12-08 --
If the courts want to be respected, they need to be
respectable. And if the courts are not respectable,
the people will view them with contempt. The case of
Murphy v. The
IRS,
460 F.3d 79 (D.C. Cir. 2006) rehearing 493 F.3d 170
(D.C. Cir. 2007) allows us feel first respect, and
later, contempt for the court. . . . It has been a
year since the Appellate Court for the District of
Columbia overturned their brilliant opinion in the
Murphy Case, and gave us in its place a mediocre one
at best. Since then, Murphy’s attorneys appealed to
the Supreme Court, but the Supreme Court did not
take up the appeal. . . . Why the Appellate Court
issued their mediocre opinion on July 3, 2007, the
day before Independence Day, I don’t know. Maybe it
served as a warning that we are indeed in trouble;
for what was going on in the colonies in 1776 is
going on in America today. When you compare the
first opinion of the court given to us on August 22,
2006 with that of the replacement ruling issued on
July 3, 2007, it is clear that the court was
protecting the government on an unlevel playing
field. It is also clear that we have today in
America the same “mock trials” that Thomas Jefferson
complained about in the Declaration of Independence.
. . . So on this anniversary of the issuance of that
mediocre ruling; let’s take another look at the
Murphy Case. And for those of you who have not read
my
September 13, 2006 article, we will
review the facts of the Murphy Case. . . . What is
the “Murphy Court” and who is Murphy? . . . Marrita
Murphy is a whistleblower who, in 1995, reported
some environmental problems at a New York Air
National Guard base. Her whistleblower actions got
her fired and “blacklisted.” The entire ordeal was
stressful for Ms. Murphy and she sued her former
employer. Lawyers from the National Whistleblower
Center (NWC) successfully prosecuted the case. On
Dec. 11, 1995 an administrative law judge awarded
Ms. Murphy $70,000--$45,000 for “emotional distress
or mental anguish” and $25,000 for “injury to
professional reputation”. Murphy received her award
Oct. 25, 1999. . . . Reluctantly, Murphy reported
the $70,000 compensatory award on her 2000 income
tax forms and paid tax on that “income”. She then
filed for a refund. The IRS had determined that Murphy’s award was subject to being taxed as income
even though her court-ordered award was intended to
make her, as a damaged party, “whole” again. No
additional punitive damages were awarded.
NEW JERSEY
Jersey City chief judge indicted in ticket-fixing
scheme
by Rick Hepp/The
Star-Ledger
7-14-08 --
A state grand jury today accused former Jersey City
Chief Judge Wanda Molina of dismissing eight tickets
for a "close personal companion" in an indictment
that charges her with official misconduct as well as
tampering and falsifying public records. . . .
Former Jersey City Municipal Court Administrator
Virginia Pagan was also charged today in a separate
indictment with dismissing 215 parking tickets that
had been issued to her and her daughter. The
potential fines on the tickets exceeded $5,000. . .
. "When court officials engage in ticket fixing, it
shakes the faith of average citizens who pay up when
they get a ticket," Attorney General Anne Milgram said in a written statement. "Today's indictments send
a message that these defendants are not above the
law and there is indeed one system of justice to
which all must answer." . . . Molina resigned last
September after a probe by state Superior Court
administrators, who have oversight of municipal
courts, found she improperly disposed of parking
tickets for her female companion.
History and the Judiciary
By Paul M. Weyrich
7-11-08 --
I am neither an attorney nor an expert in
Constitutional law. Others have been good enough to
say I am a good strategist. If so, then I would like
to share my perspective of the current state of the
judiciary. I have listened as a debate is occurring
over the proper powers of the courts and the
tendency of some Americans to cede to the advocates
of unrestrained judicial power victories to which
they are not entitled. . . . I am occasionally
referred to as a "founder of the modern conservative
movement.” Such an honor places upon me and others
to whom such a description applies a special duty to
warn our fellow citizens. Americans today are
witnesses to the realization of the great fear of
our Founding Fathers: the passing away of government
“of the people, by the people, for the people,” as
President Abraham Lincoln stated, in the United
States of America. With respect to the courts, we
need a revival of the rule of law based upon the
constitutional principles laid down by those who
founded this nation. . . . Our forefathers gave
their lives to liberate us from the rule of a
British Parliament unelected by the American
colonists: . . . Governments are instituted
among Men, deriving their just powers from the
consent of the governed.... But when a long train of
abuses and usurpations, pursuing invariably the same
Object evinces a design to reduce them under
absolute Despotism, it is their right, it is their
duty, to throw off such Government....
(Emphasis added.) . . . The grand formalities of
American election rituals hide a glaring fact:
Americans can no longer claim that we are our own
rulers in every circumstance in which we are
empowered to be. Regardless of our votes, the
defining judgments in our collective and personal
destinies often are made by persons whom the
American people have not elected to rule. . . . We
gave judges their robes and gavels so that they
might resolve specific disputes between specific
plaintiffs and defendants. We never gave them
authority to issue commands to our elected
lawmakers, forcing us down roads which we have not
chosen to travel. Judges have no constitutional
authority to make laws or to amend our national and
state constitutions. They have no authority to
redefine words and concepts in our laws to mean what
they and their ideological partisans wish for them
to mean.
January 2008
Will Activist Judges Just Please Come the Heck
out of Their Gay Closets?
Dave Muskera, M.A.
01-28-08 --
"Activist Judges". The sound or sight of this phrase
sets my teeth on edge. What the hell does it mean?
What is its opposite!? An in-activist judge? A judge
asleep on the bench? Of course, anyone who reads or
is otherwise exposed to the mainstream media has
heard this phrase used over and over as if it had
some real substantial meaning. Media pundents and
others with an agenda (and most often of a single
political persuasion) beat the activist judge drum
every time a judge (from state levels all the way up
to the US Supreme Court) makes a decision with which
they disagree. But surely, anything said so often
should convey something of substance. Not just
disagreement. Right? Well, I guess it does in some
ways - though there are those who argue that the
actual measure of its substance is more akin to the
substantialness of the air in a hot air balloon. And
you might also note that the term is almost always
used in a pejorative sense. It is not typically a
compliment.
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