2007 JUDGE MADE LAW NEWS & VIEWS
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December 2007

Judge Declares the Declaration of Independence Unconstitutional     
By Mario Diaz, Esq.

12-16-07 -- Okay, so the headline is a bit premature, but it's the logical precursor to the legal philosophy of liberal extremists, isn't it? . . . Ever since the Supreme Court erroneously elevated Thomas Jefferson's "wall of separation between church and state" metaphor to a constitutional doctrine in the 1947 landmark decision Everson v. Board of Education, a growing sort of legal fog has been setting in on our constitutional religious freedoms, ending in what can only be described as a requirement of government hostility towards religion. This is, of course, not only a far cry from what our founding fathers intended, including Thomas Jefferson - a staunch religious liberty advocate - but it is a far cry from what "We the people" intended when the Constitution was ratified. . . . The many perils of reading into the Constitution a "wall of separation between church and state" where none exists came as no surprise to many of us. Nothing good ever comes from deviating from the clear text and context of the Constitution. Many well-intentioned, smart people have argued for a "living, breathing" Constitution, changing with the times and looking for small immediate "advances," but this interpretation has only one result in the long run: tyranny. . . . In no other area of law has this proven truer than when it comes to our religious liberty. In the last sixty years, we have seen a constant attack on prayer in schools, the Ten Commandments, the sanctity of life, Christmas, Christian symbols and even religious doctrines. In many instances, our religious rights have been so inhibited that the result is exactly what the founding fathers were trying to prevent: the government dictating what the people can or can't do when it comes to religion. . . . Because of their hostility toward religion and their unveiled hatred toward anything related to God, these extreme liberal scholars are forced to ignore history, precedent and facts and are forced to decide cases from what they feel is best for the country. It is astonishing how they can go back in history and erect a temple for a distorted "wall of separation between church and state" phrase, while ignoring the text of the Constitution and the volumes of documents showing the people's real concern when enacting the First Amendment. If they want to go outside of the Constitution, you would think that they would look at the whole, and not one simple phrase, but that would be assuming that they are looking for what really happened and not for something to support what they believe is the "right thing."

COLORADO   

Judge who took neighbor's land 'beleaguered'

Lawyer compares vacant property to lost puppy that needs care

© 2007 WorldNetDaily.com

12-14-07 -- A Boulder judge and his wife, who utilized a little-known "adverse possession" state law to take part of their neighbor's $1 million parcel of land, have complained that they feel "beleaguered" by the public reaction to their move. . . . The comments were made by Edith Stevens in an interview with National Public Radio, and reported this week by the Boulder Daily Camera. Stevens told NPR she and her husband, retired Judge Richard McLean are feeling "pretty beleaguered" by the fierce public opposition to the couple's case that was decided by McLean's former co-worker, Judge James Klein. . . . WND reported earlier how Stevens and McLean brought a lawsuit against the owners of a parcel of land adjacent to their ritzy Boulder home, testifying they used the land for decades for a path, and to store firewood. . . . Judge Klein then granted them ownership of 34 percent of the parcel, which had been estimated by the owners, Don and Susie Kirlin, to be worth about $1 million before the ruling. . . . The decision came despite Kirlin's testimony he paid taxes of about $16,000 a year, plus $65 per month homeowner association dues, on the land, where he's sprayed for weeds and repaired fences. . . . Stevens said she and her husband still have some supporters. . . . "We think that our friends still like us and the people who have supported us in the past are willing to give us a benefit of the doubt," Stevens, who with her husband has declined interviews with a number of other news organizations, told NPR.

ILLINOIS  

Judges are to rule on law, not their views

Dave Deetjen, Naperville

12-14-07 -- U.S. District Judge Robert Gettleman complains in his ruling on Nov. 14 that the state's "Silent Reflection and Student Prayer Act" would violate the First Amendment. He conveniently truncates the phrase to suit his own personal perspective that government "shall make no laws respecting an establishment of religion." . . . Without completing the phrase, as so many proponents of separation of church and state do, the First Amendment appears to support his reasoning of freedom from religion. Importantly, the phrase continues with "…or prohibiting the free exercise thereof;". The founding fathers clearly intended our country to have freedom of religion, not from religion. . . . This type of judicial ruling clearly supports Fred Thompson's contention that the judicial branch of our government is overreaching and is now in the habit of legislating from the bench. If Judge Gettleman is incapable of including these crucial final six words in that phrase then he shouldn't be our representative interpreting the U.S. Constitution. . . . What can we do about judges like this? We should support presidential candidates like Fred Thompson who will "appoint strict constructionist judges who will interpret law, not impose their views on us by legislating from the bench."

NEVADA  

Appeals court dismisses complaint against judge

Panel says that despite The Times' allegations of favoritism in judgments and fees, the jurist's ties didn't affect his impartiality.

By Ashley Powers, Los Angeles Times Staff Writer

12-12-07 --The U.S. 9th Circuit Court of Appeals has dismissed a complaint against a federal judge who awarded more than $4.8 million in judgments and fees to people with whom he had long-standing political and business ties. . . . U.S. District Judge James C. Mahan of Las Vegas, who was featured in a 2006 Los Angeles Times investigation into the Nevada judiciary, was cleared of allegations that he had personal connections with those involved in cases he heard. . . . Many of those relationships "were not of the nature or extent alleged" and didn't affect the judge's impartiality, the 9th Circuit Judicial Council said. . . . A special committee that interviewed more than 30 witnesses, got 16 affidavits and reviewed media coverage and court transcripts unanimously recommended that the complaint be dismissed. . . . Mahan, appointed to the federal bench in 2002, declined to comment. He told the Las Vegas Review-Journal in October that he was "very heartened" by the findings. "All a judge has is his integrity," Mahan said. "This whole thing was an attack on my integrity, and frankly, I felt like it was an attack on the Nevada judiciary."

MASSACHUSETTS   

When judges judge themselves, it’s hard to get a clear explanation of law, order

By Margery Eagan, Boston Herald Columnist

12-3-07 -- No doubt beleaguered Superior Court Judge Kathe Tuttman took welcome comfort when the state’s two top judges Friday decried her “public vilification” over the release of killer Daniel Tavares. . . . But their point - that Tuttman made no mistake and that her critics ignore law and facts and undermine the system - is ridiculous. . . . If anyone is undermining the system here it’s Supreme Judicial Court Justice Margaret H. Marshall and Robert A. Mulligan, chief administrative judge. Their circle-the-wagons and blame-the-idiot-media stance just gives fodder to those who think the system, one of complete secrecy, by the way, is rigged by judges to protect, who else, but judges? . . . Did you know the only scrutiny judges get is in secret and anonymous, with no public access? . . . In Friday’s statement, Marshall and Mulligan repeatedly invoke the Code of Judicial Conduct to say why judges can’t do this, or that. Yet judges who go awry rarely face serious sanctions. (See Judge Ernest B. Murphy, reprimanded Thanksgiving eve for sending “threatening” letters to this paper’s publisher. He’s still on leave with full pay; the secrecy-first judiciary won’t say why)

November 2007

FEDERAL COURTS

Atheists and their lackey judges

Phyllis Schlafly

11-30-07 -- The 9th U.S. Circuit Court of Appeals on Dec. 4 will again hear a challenge by Michael Newdow to the Pledge of Allegiance and its phrase "under God." Newdow won his prior lawsuit against the pledge until the Supreme Court, perhaps to avoid public outrage in the 2004 presidential election year, tossed out his case on a procedural technicality. . . . Newdow's first case caused a national uproar when he initially prevailed, but Congress failed to seize the day by withdrawing jurisdiction from the courts over this issue. Instead, Congress took away from courts jurisdiction over lawsuits against gun manufacturers and, at the urging of former Senate Majority Leader Tom Daschle, D-S.D., over lawsuits by environmentalists against clearing brush in South Dakota. . . . The 9th U.S. Circuit Court of Appeals is notoriously hostile to religion, so it could give us another anti-pledge decision. Atheism has spread in influence to where it controls many federal courts, many public schools and now even Hollywood, with the atheistic movie "The Golden Compass" promoted for Christmastime entertainment. . . . Classical music with religious names was banned at graduation by Everett School District No. 2 in Washington state. The school ordered that only "secular" music would be allowed even though there were no lyrics or words spoken, and a federal court held against the students. . . . Judge Robert S. Lasnik, who was appointed to the bench by former President Bill Clinton in 1998, wrote the decision. Lasnik was the same judge who struck down a Washington state law banning video games that demonstrated how to kill policemen and wrote in his decision that violent video games are "as much entitled to the protection of free speech as the best of literature."

FEDERAL COURTS

Judges should uphold justice, not make policy

By Freedom New Mexico

11-28-07 -- The federal courts are supposed to serve as impartial referees on questions of constitutionality, not as unelected policy-making boards or regulators. . . . But at a time when almost every public policy dispute becomes a court case, many judges seem to have embraced their ersatz roles with gusto, further politicizing what should be an apolitical judiciary and incrementally removing democracy from the democratic process. . . . Among the most activist courts is the famously liberal 9th Circuit Court of Appeals in San Francisco, which earlier this month tossed out higher federal fuel economy standards proposed by the Bush administration, and demanded they be rewritten, taking CO2’s impact on global warming into account.

ALASKA  

Judicial activism, again
Ken Connor, BP News

11-28-07 -- There they go again! . . . Like termites gnawing away at the foundation of a building, judicial activists are eating away at the foundations of representative government in America. The damage they cause threatens our ability to govern ourselves through our elected representatives and reallocates the delicate balance of powers which our forefathers were careful to distribute among separate branches of government. . . . The most recent example of judges usurping legislative authority comes from Alaska where that state's Supreme Court, by a narrow 3-2 vote, struck down the 10-year-old Parental Consent Act. The act required girls 16 years and younger to get a parent's permission before receiving an abortion. Typically, such children can't go on a school field trip, join a sports team or attend an R-rated movie without parental consent. Ah, but this case involved an attempt by the legislature to encroach on what the political left regards as its most sacred of rites, the right to abortion. . . . And even though Alaska's House and Senate passed the act by substantial majorities, it only took three judges to torpedo the law. The judicial sages held that the act encroached on a minor's "fundamental right to privacy" protected under the state's constitution. Parental rights, which the legislature sought to protect, were jettisoned by the court. The court held that a minor's decision to abort, unlike all other medical decisions, cannot be hindered by a parental "veto power."

NEW YORK  

Panel Rebukes Judge, Citing ‘Lunacy’ in Court

By Danny Hakim

11-28-07 -- The next time you pass through the city court system in Niagara Falls, N.Y., remember to turn your cellphone off. . . . Yesterday, the State Commission on Judicial Conduct recommended the removal of a judge in Niagara Falls City Court who had what the commission’s chairman called “two hours of inexplicable madness” when a cellphone rang in his courtroom. . . . On the morning of March 11, 2005, the judge, Robert M. Restaino, was presiding over a slate of domestic-violence cases when he heard a phone ring. According to the commission’s report, he told the roughly 70 people in the courtroom that “every single person is going to jail in this courtroom” unless the phone was turned over. . . . A security officer was posted at the door while other officers tied to find the phone, but failed. . . . After a brief recess, Judge Restaino returned to the bench and asked the defendant who had been standing before him in the front of the courtroom when the phone rang if he knew whose it was. . . . “No,” said the defendant, Reginald Jones. “I was up here.” The ringing had come from the back of the room. . . . Nonetheless, the judge scrapped plans to release Mr. Jones, set bail at $1,500 and sent him into custody. . . . He was the first of 46 defendants to be sent into custody that day because of what could be called the case of the ringing cellphone. The judge opined at length about his frustration over the phone.

OHIO  

OUR VIEW: Justice must be blind in Ohio,
but that does not mean blindfolded

The Morning Journal

11-28-07 -- Justice is blind, the saying goes. Justice should be blind, meaning impartial -- treating all people equally without favor or prejudice. . . . But justice should not be blindfolded, that is, prevented from seeing all the facts relevant to making a correct judgment. . . . For that reason, we hope the Ohio Supreme Court decides to rule that prosecutors must provide defense attorneys with all the material they have in making the case against a defendant. . . . Right now, Ohio court rules require prosecutors to provide the defense with ''exculpatory'' evidence that would tend to clear a defendant. But it is left to prosecutors to decide what constitutes exculpatory evidence. That opens the possibility of innocent people being convicted because prosecutors withheld evidence from the defense. . . . When a judge ordered the Cuyahoga County prosecutor to give defense attorneys all the police reports on a man accused of killing a police officer, the prosecutor balked and asked the Supreme Court to block the judge's order. Prosecutors contend that giving witness statements to the defense can, and has, led to innocent people being killed or intimidated, according to an Associated Press story on the case in Cleveland.

FEDERAL COURTS

Judge Jones Admits the Activist Nature of
Kitzmiller Ruling on Lehrer Newshour

Evolution News & Views

11-21-07 -- Federal judges don’t ordinarily travel around the country speaking about their judicial rulings, but Judge Jones is no ordinary federal judge. While promoting the PBS-NOVA special on intelligent design, he recently appeared the Lehrer Newshour, where he made striking admissions that demonstrate the activist nature of the Kitzmiller ruling. . . . Two hallmarks of judicial activism are (1) the tendency to resolve questions outside the scope of the judiciary, which are best left to other branches of government, and (2) the intent to make policy and influence parties outside of the case. Judge Jones’ own admissions on the Lehrer Newshour demonstrate that both of these criticisms correctly apply to his Kitzmiller ruling. . . . Judge Jones’ Expansive Intrusion into Legislative Questions . . . First, Judge Jones admitted that a key question his ruling answered was whether intelligent design was “good science,” and he states that “after six weeks of largely expert testimony, I came to the conclusion that it simply was not good science” (emphasis added). This proves his judicial activism because it shows that, in his mind, a key question was not the constitutionality of Dover’s policy in particular, but rather a broad sweeping question about whether ID is “good science,” something that is totally inappropriate and unnecessary for the federal judiciary to answer in such a case over the constitutionality of a science curriculum. As I co-wrote with David DeWolf and John West in Montana Law Review, Judge Jones confused the proper question he was supposed to answer.

Judicial independence, judicial accountability and activist judges

By Terry Lewis, MY VIEW

11-21-07 -- In an Oct. 30 My View column about the marriage amendment, Orlando attorney John Stemberger referred to “unelected, activist judges” trying to force their views upon society. In a subsequent letter (Nov. 8) James Vaught complained about judges who don't just interpret the law, but rewrite it.

As a judge, and a citizen who respects the unique and important role of the judicial branch of government, I offer a few observations about some oft-used, but misunderstood terms:

Judicial independence means to me the freedom to decide a case based upon a good-faith attempt to discern what the law is, and apply that law without regard to personal preferences or external pressure, and without fear of adverse personal consequences. It does not mean the freedom to decide a case based on what you think the law should be.

Judicial accountability means taking responsibility and being answerable for the intellectual integrity of your decisions, i.e., demonstrating that they are the result of a good-faith effort to discern and apply the law as noted above. It does not mean doing what the legislative or executive branches want you to do, or what might be overwhelmingly popular at the time.

Judicial activism means deciding a case based upon your personal philosophy or preferences, demonstrating a willingness to ignore legal precedent and principles in order to reach a desired result. It is not synonymous with judicial independence, but rather its opposite.

The framers of our constitution realized that if we were to be a nation of laws, we would need a way to resolve disputes over the meaning of those laws. They also understood the danger of combining this function, the judicial power, with either the executive or legislative branches. They felt that the best way to insure the fair and impartial administration of the laws was with a separate, independent judicial branch.

James Madison, when proposing the bill of rights, noted: “Independent tribunals of justice will consider themselves in a peculiar manner guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”

Yes, yes, you say, but what about judges who are not content to simply interpret the law, but want to make law?

The problem with that analysis is that every time a court interprets a law, it makes law. For example, the first amendment provides: “Congress shall make no law ... .abridging the freedom of speech. . . "

One view is that it means what it says - no law. Another view is that certain speech, such as obscenity, or the shouting of "fire" in a crowded theater, is not protected speech. Whichever interpretation the court applies, it makes law. It is, of course, the latter view which prevailed in the Supreme Court and is now the law of the land.

Whether or not you think a particular decision correctly interpreted the law, it becomes legal precedent that, as a judge, you must apply to cases before you. Even the deciding court can not recede from its decisions except under the most compelling circumstances. Thus, those who advocate for the selection of judges they believe will “overturn” some previous decision, are, in effect, advocating judicial activism.

For those judges who ignore legal precedent and are interested only in reaching a desired result, regardless of the law, there are safeguards and remedies: Rulings that are out of hand can be appealed; the law can be revised to make its meaning more clear; and state court judges can be challenged at the next election.

Most importantly, we should be careful to select persons of integrity who we believe will exercise independence and impartiality in their decision making.

An equally important question is, how do we maintain judicial independence when judges are elected and can thus be voted out of office for unpopular decisions?

For that we must rely on two things: 1. the courage and integrity of individual judges, and 2. an informed electorate committed to the principle of judicial independence, and willing to defend it against unfair criticism.

Our system of government provides a very good framework for the protection of individual liberties. An integral part of that system is an independent judiciary accountable to the public to be independent. It is our burden, and our responsibility as citizens, to insure that it remains so.

Leon County Circuit Court Judge Terry Lewis was appointed to the court in 1998 by then-Gov. Lawton Chiles, having served as a Leon County judge since 1989. A novelist and author of "Conflict of Interest," he gained national attention in 2000 with his ruling that then-Republican Secretary of State Katherine Harris properly exercised her discretion to certify results of presidential election without the hand recounts. Contact him at TerryLe@leoncountyfl.gov

GENERAL

Danger! Judicial Activists at Work!
By Ken Connor

11-9-07 -- There they go again! . . . Like termites gnawing away at the foundation of a building, judicial activists are eating away at the foundations of representative government in America. The damage they cause threatens our ability to govern ourselves through our elected representatives and reallocates the delicate balance of powers which our forefathers were careful to distribute among separate branches of government. . . . The most recent example of judges usurping legislative authority comes from Alaska where that state's Supreme Court, by a narrow 3-2 vote, struck down the 10 year old Parental Consent Act. The Act required girls 16 years and younger to get a parent's permission before receiving an abortion. Typically, such children can't go on a school field trip, join a sports team or attend an "R" rated movie without parental consent. Ah, but this case involved an attempt by the legislature to encroach on what the political left regards as its most sacred of rites, the right to abortion! And even though Alaska's House and Senate passed the Act by substantial majorities, it only took three paltry judges to torpedo the law. The judicial sages held that the Act encroached on a minor's "fundamental right to privacy" protected under the state's constitution. Parental rights, which the legislature sought to protect, were jettisoned by the Court. The Court held that a minor's decision to abort, unlike all other medical decisions, cannot be hindered by a parental "veto power."

WEST VIRGINIA   

Public pays for Starcher's perversion of justice

By Steve Cohen

11-9-07 -- Out of reverence for the Constitutional separation of powers doctrine seldom does a federal court stand in the way of a ruling from a state bench. . . . But, ah, West Virginia has bucked the trend this fall with a finding by U.S. District Judge John T. Copenhaver Jr. that the feds may have to pull the reins on a justice who sits on the Mountain State's highest tribunal. . . . Judge Copenhaver found that West Virginia Supreme Court Justice Larry Starcher may have indeed displayed "strong personal bias" with public pronouncements that a party to case pending before him was "stupid" and "a clown." . . . Starcher could have recused himself and spared West Virginia the embarrassment of a rebuke from the federal courts and yet another blow to the reputation of our court system. But no.

October 2007

The War for the Constitution
The anniversary of Robert Bork's failed nomination reminds us what's at stake in the coming election.
By Gary L. McDowell, WSJ Editorial
10-23-07 -- Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring. . . . To many at the time (and still today) it was inconceivable that a man of Mr. Bork's professional accomplishments and personal character could be found unacceptable for a seat on the Court. Warren Burger summed it up for many when he described Mr. Bork as simply the best qualified nominee in the former chief justice's own professional lifetime--a span of years that included the appointments of such judicial luminaries as Benjamin Cardozo, Hugo Black and Felix Frankfurter. Such praise was no empty exaggeration. . . . A former Yale law professor and U.S. Solicitor General, Mr. Bork was, at the time of his nomination, a judge on the United States Court of Appeals for the District of Columbia Circuit. When he was a circuit court judge, Mr. Bork's opinions not only were never overruled on appeal, but on several occasions his dissents were adopted by the Supreme Court as its majority view. . . . In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench. Instead, the nominee faced a mauling by those who set out not only to destroy him personally but to discredit all that he stood for as a jurist. . . . It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork's opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution. . . . The issue that united the judge's critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said. . . . Mr. Bork's approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver's original intention is "the most sacred rule of interpretation." In Marshall's view, it is always "the great duty of a judge who construes an instrument . . . to find the intention of its makers." As with Marshall, so also with Mr. Bork.

UNITED STATES SUPREME COURT

Who are the bench's judicial activists?

Looking at the Supreme Court justices' voting records, the lines between activism and restraint may surprise you.

By Thomas J. Miles and Cass R. Sunstein
10-22-07 -- The Supreme Court has returned to work, and court watchers are again asking the perennial questions: Which justices are most partisan? Who are the real activists? . . . We have tried to make progress on these questions by examining how the justices vote and letting their records speak for themselves. We explored the justices' voting patterns from 1989 through 2005, an unusually long period of continuity within the court. (No reliable conclusions can be drawn about Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito because they have so few votes.) . . . Everyone looks at the high-profile constitutional cases, but to get a real sense of how justices approach their jobs, it's best to analyze the more routine, less-visible cases that are often more important to people's daily lives. . . . For this reason, we examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.

FEDERAL COURT

Judicial activism strikes once again

10-22-07 -- Recently a federal judge issued a restraining order baring implementation of a law requiring businesses with employees whose name and Social Security number didn't match to correct mismatches or terminate the employee. Supposedly it places an undue burden, a "staggering impact" on the employer and could unfairly accuse employees of being in the country illegally. . . . Poppycock! The employer doesn't investigate and suffers no burden because it is the holder's responsibility to prove validity or lose the job. If you are native born or in the country legally, that isn't a burden since you have the documentation permitting the Social Security Administration to correct its records. . . . What we have here is another case of "judiciary legislation." The job of determining whether or not a law will have "staggering impact" on people is not in the purview of the judiciary. In other words, the role of a judge is to do what is "legal" (which is, ideally, objective) not to do what is "right" (which is subjective). There was nothing in his legal reasoning that pointed to a constitutional basis for his order, only his feelings and emotions. Moreover, submitting a false Social Security number is a felony, punishable by five years in jail and a quarter million dollar fine. If there is a mismatch, it would seem that there is reasonable cause for the employer to insist that the employee provide valid proof and correct the error. . . . If I, born and raised in the U.S., tried to use a fake Social Security number to get a job or create a new identity, I would rightly be put in jail and charged with a crime. It is beyond my comprehension why a federal judge would roadblock legal means designed to identify those who have broken the law, namely illegal immigrants.

Joe H. Heater, Palatine

Phyllis Schlafly speaks out on judicial activism

“[It’s] the duty of Congress to restore the judiciary to its proper role and to protect America from judicial usurpation

By Colleen Walsh, Harvard News Office

10-19-07 -- The woman credited with defeating the Equal Rights Amendment was on the Radcliffe campus last week to discuss the current target in her crosshairs: judicial activism. **************“Our nation needs judges for the same reason that a baseball game needs an umpire; someone has to call the balls and strikes,” she said. But, she argued, fans would never accept an umpire who changed the rules of the game. “And likewise we should not tolerate judges who ignore, bypass, or change the wording of the Constitution.” . . . Her talk at the Agassiz Theatre in Radcliffe Yard before a modest crowd was titled “The Culture Wars in the Courts” and examined six cultural areas: property rights, parents’ rights, pornography restrictions, abortion regulations, and religion, all of which she said have been significantly influenced by recent court decisions. . . . Schlafly gave her talk in a rapid-fire style, possibly honed in the 1940s when she put herself through college as a gunner testing ammunition in rifles and machine guns. She didn’t miss a beat when approximately 20 students, many of them from Harvard Divinity School, stood early in her lecture and filed silently out of the hall to protest what they called her “ministry of hate.”  . . . According to Schlafly, Chief Justice Earl Warren was at the heart of what she sees as the breakdown of the Supreme Court. His appointment in 1953, she contended, opened the door to a host of far-reaching social, political, and economic decisions that continue to the present day. . . . “In the 1950s, [ Justice Warren set out to make the Supreme Court the most powerful branch of government,” she said. . . . And where the Supreme Court goes, asserted Schlafly, the lower federal courts follow. . . . Parents’ rights have been deeply affected by the judicial system, she said. . . . “In 2005, the 9th Circuit Court ruled that parents’ fundamental rights to control the upbringing of their children does not extend beyond the threshold of the school door,” said Schlafly. That ruling, she argued, has exposed children to a wide range of material chosen by the schools that is “pornographic, depressing, age-inappropriate and uses language that is profane.” ************ “The only reasonable basis for a court decision is the language of the Constitution itself,” she said. . . . She also urged Congress to limit the power of the judiciary. . . . “[It’s] the duty of Congress to restore the judiciary to its proper role and to protect America from judicial usurpation.” [Emphasis added]

September 2007

PENNSYLVANIA

Appeals court says judge in Pittsburgh was out of bounds

By Jason Cato, Tribune-Review

9-14-07 -- A federal judge in Pittsburgh erred last year when he placed a Georgia man on supervised release for life and ordered him to never again own pornography after shacking up with a Canonsburg teenager he met online, an appeals court ruled this week. . . . In November, U.S. District Judge Arthur Schwab sentenced Derrick Kenrick, 50, of Rome, Ga., to 46 months in prison for crossing state lines with the intent to engage in sexual conduct with a minor. The judge then heaped on a number of other restrictions, including the lengthy supervised release and pornography prohibition, as well as ordering mandatory mental counseling. . . . A three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled unanimously that Schwab failed to adequately explain his reasons for placing Kenrick on supervised release for life. The court also admonished the judge for imposing an outright ban of all pornography.

FLORIDA

Judge and Jury

Judge Lazarus takes justice into his own hands in the Keith Wasserstrom trial

By Bob Norman 

9-12-07 -- Joel T. Lazarus is a powerful guy. He isn't just a Broward Circuit judge; he's also a jury. And on Monday, he single-handedly did more to damage anticorruption efforts in his county than just about any man ever has. . . . Lazarus is the judge in the corruption trial against Keith Wasserstrom, a former Hollywood commissioner. Wasserstrom used the power of his office to help a sewage company to which he was allegedly financially tied get a lucrative contract in his city. . . . That much is uncontested fact — and the lurid details smell worse than the sludge involved in the city's contract. But after the prosecution and the defense rested Monday, Lazarus threw out the key felony charge against Wasserstrom, saying the unlawful-compensation case against him was "circumstantial." . . . In doing so, the judge not only subverted a fundamental American legal principle, the jury trial, but also the opinion of a much higher power — the Florida Supreme Court. . . . After Lazarus made the stunning move, I questioned the judge about it outside the courtroom. . . . "Did you make the decision to take this case out of the jury's hands lightly?" I asked him. . . . "What?" . . . "Are you a judge or are you both the judge and jury?"

NEW HAMPSHIRE  

Congratulations on That "Not Guilty" Verdict,
Now Get Your Ass in Jail

New York Lawyer, By The Associated press

9-12-07 -- A former Ashland man cleared of assaulting a police officer while trying to rush his pregnant fiancée to the hospital is being sent to jail by a judge. . . . A jury deliberated about 15 minutes last month before acquitting Nathaniel Gibbs, 25, after a four-day trial. But Monday, Grafton County Superior Court Judge Jean Burling nullified the verdict, ordering Gibbs to serve a suspended sentence from a previous drug conviction. . . . "I don't know how the jury made its decision. This is my own, based on the testimony that I heard," she said. . . . Burling she found by a preponderance of evidence that Gibbs' assaulted an officer and disobeyed an officer — actions that violated the good behavior requirements of the previous suspended sentence. The jury must determine guilt beyond a reasonable doubt. . . . Gibbs argued he was pulled over while rushing his fiancee to the hospital and that the officer shoved him while he was trying to get him to help. . . . Gibbs' family says the police should be prosecuted. His lawyer promises an appeal.

TENNESSEE  

Immigrant: Judge told me to go home

By Rick Laney, © The Daily Times 2007
9-12-07 -- Anna Calixto went to court Friday seeking an order of protection from her husband, Fernando Calixto. Instead, she was told to go back to her native country of Nicaragua by Blount County Circuit Court Judge W. Dale Young, according to witnesses. . . . Anna Calixto and witnesses said the judge asked Fernando Calixto — who came to the United States from Mexico — if he was in the United States legally. The judge told him if he wasn’t here legally, he had “no rights in court.” . . . The judge then asked the same question of Anna Calixto. . . . “When the judge asked if I was here legally,” Anna Calixto said, “I told him I have my temporary worker permit and I have the documentation showing it from the immigration service. . . . “The judge shrugged his shoulders like he didn’t care — then he told me to go back to Nicaragua. . . . “I told him I have two children and asked what I was supposed to do about my children. The judge said there were Americans here in this country who could take care of my children.” . . . After the brief discussion, Young reportedly threw Anna Calixto’s request for an order of protection across his desk. Young’s secretary, Amanda Nolan, told The Daily Times Monday that the judge had dismissed Calixto’s request.

NEBRASKA  

Judge in sex assault case sued by alleged victim

By Clarence Mabin / Lincoln Journal Star

9-10-07 --In the latest legal twist in the sexual assault prosecution of a Lincoln man, the woman at the center of the case sued the trial judge this week because he barred “rape” and other words from the courtroom. . . . Tory Bowen, 24, said in the complaint filed in federal court that Lancaster County District Judge Jeffre Cheuvront violated her First Amendment right to free speech by barring the words “rape,” “victim,” “assailant,” “sexual assault kit” and “sexual assault nurse examiner” from the trial of Pamir Safi. . . . She is seeking a declaration from a federal judge that Cheuvront’s word ban was contrary to the U.S. Constitution. The Lancaster County Attorney’s Office has charged Safi, 34, with first-degree sexual assault stemming from an encounter between Bowen and Safi at his apartment the morning of Oct. 31, 2004. . . . Safi said he and Bowen, who met each other for the first time at a downtown Lincoln bar the night before, had consensual sex. . . . Bowen, a former University of Nebraska-Lincoln student who now lives in Washington, D.C., and prosecutors say she was too intoxicated to give consent. . . . The case went to trial last year, but Cheuvront declared a mistrial Nov. 6 after the jury deadlocked 7-5. He declared a second mistrial in July during jury selection, this time citing intense news coverage and public protests on behalf of Bowen.

MARYLAND   

Clinton residents form judicial watch group

by Ryan McDermott | Staff Writer

9-7-07 --Members of the District 5 Citizen’s Advisory Council have formed a judicial watch group to make sure criminals get the sentences they deserve and that judges and prosecutors are doing their jobs. . . . The CAC subcommittee was formed earlier this year after Clinton residents decided that judges and prosecutors must be held accountable for what they do. . . . The idea was born after several members witnessed news coverage of former Judge Richard Palumbo’s decision to dismiss a protection order against Roger Hargrave in 2005. A month later Hargrave walked into the T-Mobile store in Clinton where his then wife Yvette Cade worked, doused her with gasoline and set her on fire. . . . Hargrave was convicted of first-degree attempted murder and sentenced to life in prison. Palumbo has since retired. . . . Marilyn Werner, committee head of the judicial watch said she saw video of a trial. . . . ‘‘I pray to God I never see any judge treat a human being like that,” she said.

TEXAS  

NORTH CAROLINA  

Judging the judges

News Record

9-5-07 --Guilford County District Court Judge William "Pete" Hunter saw his name in headlines in May, and it wasn't for something he'd done right. . . . Hunter, a veteran of more than 12 years on the bench, was cited by The News & Observer of Raleigh as North Carolina's most lenient judge in extreme speeding cases. . . . Publicity like that is rare, and unwelcome, for District Court judges, who have to run for election every four years. Most voters hear little about judges and usually re-elect incumbents. Hunter ran unopposed in 2004. Tagging the judge as a soft touch for speeders, however, could encourage potential challengers and alert otherwise apathetic voters to his record. . . . Unfortunately, that may or may not give an accurate impression of Hunter's record or speak to his fitness to serve on the bench. He's made thousands of decisions in criminal cases, family law, civil disputes and other matters. Weaknesses in traffic court could be balanced by strengths elsewhere. How does a voter know? . . . The N.C. Bar Association recognizes the problem. North Carolina's system of electing judges works best if voters are well informed -- and preferably not informed only by special-interest groups or even news stories reporting on one issue. . . . The association plans to launch a judicial performance evaluation process designed to create a rating system of judges based on observations by lawyers, peers, law-enforcement officers and other courthouse insiders.

GENERAL

With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose

By Adam Liptak

9-3-07 -- Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers. . . . Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law. . . . But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money. . . . And there is, of course, the pleasure of power, particularly in cases involving the great issues of the day. . . . “Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”. . . There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.” . . . Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. “We smugly congratulate ourselves,” Judge Jacobs said, “on expanding what we are pleased to call the rule of law.”

IOWA  

Iowa Same-Sex "Marriage":
One Instance of Judicial Activism Begets Another?

Chris Stovall, Constitutionally Correct Blog

9-3-07 -- A Polk County, Iowa, trial court granted summary judgment to Lambda Legal Defense and Education Fund and their test plaintiffs, holding that Iowa's Defense of Marriage Act is unconstitutional and is stricken from the Iowa Code, ordering the Polk County Registrar to issue "marriage" licenses to the plaintiffs and any other otherwise-qualified same-sex couples, and decreeing that all remaining provisions of Iowa's Marriage Code must be "read and applied in a gender-neutral manner so as to permit same-sex couples to enter into a civil marriage pursuant to said chapter." . . . The next day, this judge who attempted to completely redefine the institution of marriage in Iowa with a stroke of his signing pen yesterday, issued a stay of his own order (a copy of the stay order is here).  Thus, he has now halted the further issuance of "marriage" licenses to same-sex couples in Iowa, pending the Polk County Attorney's appeal to the Iowa Supreme Court. . . . Before the stay was entered, however, another judge of the Polk County District Court issued an order waiving Iowa's mandatory three-day waiting period for the issuance of a marriage license following the filing of an application for one.  As a result, as this news article reports, a male couple had a outdoor wedding ceremony this morning in Des Moines, performed by a Unitarian minister.  It is believed that the documentation of this wedding was returned to the Polk County Recorder before the entry of the stay. . . . While we have not seen the judge's order waiving the three-day period or any record accompanying it, it was presumably granted under Iowa Code Annotated Sec. 595.4 ("Age and qualification--verified application--waiting period-- exception").  This is the only provision in Iowa law of which we are aware that appears to allow for a waiver of the three-day period. 

MARYLAND   

Maryland's system of 'justice'

Washington Times Editorial

9-3-07 -- When it comes to virtually everything related to criminal justice, Maryland is gaining a national reputation for all the wrong reasons: as a place where judges, politicians and corrections officials go to absurd lengths to give violent criminals the benefit of the doubt at the expense of public safety. Here are a few of the beneficiaries of this generosity who have been in the news in recent weeks: . . . In 2004, Mahamu Kanneh was indicted on charges of raping and molesting a 7-year-old girl who was a relative. According to charging documents, he also fondled an 18-month-old girl. For close to three years, Mr. Kanneh remained free on $10,000 bond while his attorneys insisted that he be provided with a translator of an obscure African language — even though Mr. Kanneh graduated from Montgomery County Public Schools and appeared to be fluent in English. After a lengthy search, one was found last month. But by then it was too late for an impatient Montgomery County Circuit Court Judge Katherine Savage, who dismissed the charges against Mr. Kanneh on July 17. The state appealed, and Mr. Kanneh skipped an Aug. 3 court hearing, moved to Philadelphia and attempted to escape when police and federal marshals came to arrest him there.

August 2007

IOWA  

Renegade Judge Strikes Down Iowa Defense of Marriage Act

by Jennifer Mesko, associate editor

8-31-07 --Dr. Dobson calls it a 'purely political ruling.' . . . County Judge Robert Hanson decided Thursday that he will make the laws for Iowa. He struck down the state's 1998 Defense of Marriage Act as unconstitutional and ordered Polk County to issue marriage licenses to same-sex couples. . . . Roger J. Kuhle, an assistant county attorney, argued the issue is not for a judge to decide. The county, home to state capital Des Moines, is expected to appeal the ruling to the Iowa Supreme Court. . . . Dr. James C. Dobson, founder and chairman of Focus on the Family Action, called it another example of a judge legislating from the bench. . . . “Once again, we see an activist judge handing liberal activists what they have not been able to achieve legislatively or at the ballot box: government sanctioning of same-sex marriage," he said. "This purely political ruling proves yet again that nothing short of a federal marriage-protection amendment is sufficient to preserve one-man, one-woman marriage in our nation.

KANSAS  

Judicial Logic?

Daily News Record Editorial

8-29-07 --It seems sometimes the most foolish or the most ideological individuals are appointed to judgeships, on both the state and federal bench. . . . In a ruling showing both foolishness, ideological fixation, as well as astounding ignorance, a Kansas Court of Appeals ruled that while, "unauthorized entry" into the United States is a crime, being in the country after an illegal entry is not necessarily a crime. . . . A three-judge panel overturned a lower court judge who had denied probation and ordered jail time for a drug dealer who was also an illegal immigrant. . . . "While Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless that illegal alien has previously been deported and has again entered this country illegally," Judge Patrick McAnany wrote for the court majority. . . . But if you have broken the law on the day you entered the United States, you are clearly still in violation of the law on the day after you have entered the nation illegally, and the day after that. . . . There is one thing you can say for liberal activist judges – they always take illogic to the next level. They also tend to contort and distort the law for the benefit of illegal aliens and criminals. . . . By this logic, if a suspect steals a diamond necklace, the act of taking it may be a crime but it is not a crime for him to have it in his possession a week later. After all, the "continued presence" of the necklace in his possession, even if he broke the law by taking it, would not constitute a crime. . . . This ruling makes no sense whatsoever and should be appealed by prosecutors. Perhaps saner judges are on the Supreme Court of Kansas.

MISSOURI  

The Adam Smith Foundation

The Adam Smith Foundation is an advocacy organization committed to promoting conservative principles and individual liberties in Missouri. . . . Our Foundation seeks to provide Missourians with the information they need to hold their state and local elected officials as well as Judges accountable for their actions. . . . We are dedicated to keeping government at all levels focused on providing core services and out of the lives of individual Missourians.

FLORIDA  

Fla. Legal Elite Hope to Get Judges a Little Respect

Group wants to bring judges back in public's good graces after embarrassing blunders and judicial abuse and misconduct

Jordana Mishory, Daily Business Review 

8-17-07 -- Prompted in part by Florida Supreme Court justices and the potential loss of a new courthouse, a group of high-powered lawyers is launching its own effort to restore public confidence in Broward County's fractured judiciary. . . . The project is spearheaded by former Democratic state Sen. Walter "Skip" Campbell, prominent Republican lawyer Edward Pozzuoli and Eugene Pettis, a member of The Florida Bar Board of Governors. . . . The group began organizing in the past few weeks and is attempting to set up an initial meeting. . . . The objective: Help bring respect back to a bench beset by criminal investigation, insensitive comments and inappropriate actions. . . . "We have a great judiciary. We just have to prove it to the public," Campbell said. "The group is starting because there is a call for help." . . . The group plans to discuss ways to bring the judges back into the public's good graces and wants to meet with incoming Chief Judge Victor Tobin. . . . The judge said Tuesday that he is receptive to the lawyers' involvement.

UTAH

Utah judge magnet for reversals

By Rebecca Walsh, Tribune Columnist

8-17-07 -- Yvonne Flitton says her boss alternately ogled her breasts and told her to button up her blouse. He'd sit in her office and whine about his lacking sex life and the escapades of others in the office. He loved to ponder the merits of thong underwear and breast implants. . . .     When she complained to his boss, the president of Primary Residential Mortgage, she says he chuckled, then proceeded to draw a diagram of the chief financial officer's "sexual cycle" of dysfunction - arousal at the sight of "attractive" co-workers, guilt, hostility for the women, remorse, arousal and so it went. . . . The boss only got more hostile. Then Flitton's salary was cut in half. She complained about discrimination to her boss and his in an e-mail. The next day, she was fired. . . . U.S. District Court Judge Ted Stewart missed something in the story - the point. . . . Two years ago, he threw out her gender-discrimination claim before trial. He refused to allow her to try to prove her bosses acted with malice - a legal requirement for punitive damages. And when a jury came back with a $50,000 award for emotional pain and mental anguish, he blocked that too. . . . Judges on the 10th U.S. Circuit Court of Appeals saw Flitton's lawsuit differently, reinstating the jury award and allowing Flitton to press her discrimination suit last week. . . . They're getting used to this - correcting Stewart's mistakes.

The Federal Judiciary, Aping The German Judges,
Allows The Government To Force You To Die
When You Are Sick.

by Lawrence Velvel  

8-15-07 -- **************Let us start today with an August 3, 2007 decision by the United States Court of Appeals for the District of Columbia -- the court that Antonin Scalia, Clarence Thomas and John Roberts sat on before they were anointed to the Supreme Court as a reward for their reactionaryism -- in a case called Abigail Alliance For Better Access To Developmental Drugs v. von Eschenbach .  The entire non “senior status” court of appeals judges, not just a panel of three judges, participated in this decision; in fact the hearing in front of the whole court was for the purpose of considering, and reversing, a prior two to one opinion by a panel of three. . . .  Here was the question in the case:  if a terminally ill patient has no other option for trying to save his or her own life, does that patient have a right to use experimental drugs that have not yet been proven safe and effective (and, one assumes, may never be proven safe and effective), and that therefore have not been approved by the FDA.  Any decent person, recognizing that the patient is terminal and has no other options for trying to save his own life, would say that of course the patient has a right to try the experimental drug if he wishes to.  And, at bottom, that is what the two judges in the minority thought (one appointed by Reagan and one by Clinton).  But that is not what the judges in the majority thought.  (They were variously appointed by Reagan, Clinton and the two Bushes).  Oh no.  By the majority’s lights the terminally ill patient has no right to use the drugs and thus has no option but to die.  (The lack of any option but to die reminds one of Tennyson’s Charge of the Light Brigade:  “Theirs not to make reply/Theirs not to reason why/Theirs but to do and die/Into the valley of Death/Rode the six hundred.”)

Regulatory folly vs. judicial whimsy

Bruce Fein

8-15-07 -- The case of Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach (Aug. 7) pitted regulatory folly against judicial whimsy. There, the United States Court of Appeals for the District of Columbia Circuit rejected a constitutional claim by terminally ill patients of access to unapproved new drugs regulated by the federal Food and Drug Administration. The litigation corroborates German Chancellor Konrad Adenauer's lament that while God placed sharp limits on man's intelligence, the deity placed no corresponding boundaries on man's foolishness. . . . It was born from a characteristically paternalist and undiscriminating regulatory mentality. In 1938, Congress enacted the Federal Food, Drug, and Cosmetic Act as an answer to more than 100 deaths from ingesting Elixir Sulfanilamide, which had been marketed as an antibiotic. The act required drug manufacturers to test and the Food and Drug Administration (FDA) to review all new drugs for safety before their commercial distribution. Then came the thalidomide babies, i.e., the rash of birth defective infants whose mothers had taken the drug to alleviate morning sickness. Congress responded with the Kefauver-Harris Amendments. It obligates manufacturers to prove evidence of a drug's effectiveness to the FDA through well-controlled investigations as a condition of marketing.

CONNECTICUT  

Dismissive Judge Lets Injustice Stand

Judge Stanley T. Fuger proclaimed, "I don't know anything about this case."

Donald S. Connery

8-13-07 -- Once again, Connecticut justice is on trial. . . . Eight years ago, I was outraged at what our Constitution State did to David Saraceno in a notorious "wrong man" case. In a 10-hour unrecorded interrogation in 1994, detectives forced the teenager to falsely confess to the $500,000 burning of the Haddam-Killingworth school bus fleet. He went to prison. When the identity of the four real arsonists surfaced, embarrassed prosecutors gave them a free pass. David was set free, but only on the condition that he plead guilty to "hindering prosecution by falsely confessing to the state police." . . . That was bad enough, but now my blood is really boiling. . . . In mid-July, I attended Richard Lapointe's hearing for a new trial in Rockville Superior Court. No forensic evidence had ever linked him to the murder of Bernice Martin two decades earlier. I knew this to be Connecticut's most shameful false confession case ever because of the accused's numerous mental and physical disabilities. The state had sought the death penalty and left a killer on the loose.

CALIFORNIA  

Judge dread

Peter J. McBrien’s conduct in divorce case raises red flags

By R.V. Scheide

There's little love lost in the courtroom of Sacramento Superior Court Judge Peter J. McBrien. By the time most couples appear before him at the William R. Ridgeway Family Relations Courthouse, any prior affection between the pair has been all but wrung out of the relationship. Ulf and Mona Carlsson’s acrimonious divorce trial in March 2006 was no different. Nevertheless, Ulf Carlsson sat calmly through the first day of the proceeding as his wife’s attorney presented the case against him, confident that he’d get his fair hearing in court. . . . But Carlsson’s fair hearing never came. . . . Near the end of the trial, as Carlsson’s attorney was cross-examining a witness, Judge McBrien left the bench to answer a phone call, abruptly ending the trial. He never returned to the bench and later rendered a decision that weighed heavily against Carlsson, even though the judge hadn’t heard all the evidence in the case. . . . “I was shocked,” said Carlsson, a Swedish native who moved to the United States in 1984 to pursue a degree in architectural engineering at UC Davis. “It was like a big circus. He rubber-stamped all of the opposing attorney’s demands.”

ILLINOIS  

Freshening the federal suit against Illinois Chief Justice Thomas

by Michael Miner

8-10-07 -- That impudent countersuit filed by the Kane County Chronicle and former columnist Bill Page against Chief Justice Bob Thomas and the rest of the Illinois Supreme Court just got a little sassier. . . . In 2004, you'll recall,  Thomas sued Page and the Chronicle on the grounds that Page had defamed him in a series of columns that accused him of working a "little political shimmy-shammy" -- Page said Thomas let the Kane County state's attorney off easy in a disciplinary case before the court in return for favors done to a Thomas ally in a judicial race. Last November a Kane County jury found for Thomas and awarded him $7 million -- a sum the trial judge would later drop to $4 million. . . . The defense lawyers had argued all along that the state courts were hopeless because Thomas ran them -- an argument that made good newspaper copy but didn't impress the judiciary. D.C.-based First Amendment heavyweight Bruce Sanford took over the appeal and soon made even better newspaper copy by carrying the fight to the enemy: in June Page and the Chronicle sued Thomas and the entire state supreme court in federal court. They claimed that Thomas's suit had infected the state courts with a "constitutional cancer" that made justice impossible there. How could the defendants get a fair trial in a court system that the plaintiff oversaw and in which the court of last appeal consisted of Thomas's main witnesses -- the other justices?

MARYLAND   

Stupid Judges...

By Bill O'Reilly

“The Factor” is the only news program in the country holding American judges responsible for their behavior, the only one.

8-10-07 -- That means judges often get away with outrageous sentences and courtroom shenanigans because we can't be everywhere. And when judges do misbehave, they hide behind the, “We can't talk about the case” ruse. So they're not held accountable to anyone. This must stop. . . . Maryland Judge Joseph Manck is a perfect example of what I'm saying. Earlier this year Manck sentenced a brutal child molester, a man who sexually abused his eight-year-old daughter for seven years to just four months in jail. That is a totally irresponsible sentence. So we confronted Manck.

(BEGIN VIDEO CLIP) / JESSE WATERS: Hey, judge, Jesse Waters with FOX News. / JOSEPH MANCK: I told you I'm not going to talk to you. It's improper to do that./ JESSE WATERS: Why did you give that guy four months? / JOSEPH MANCK: Goodbye, sir. Would you mind taking your foot out of my door, please? Thank you very much. / (END VIDEO CLIP)

Well, now Manck has made another irresponsible decision, and this one may have led to the death of 19-year-old Samantha McQuillin. . . . Here's what happened. Twenty-three-year-old Matthew Dieterle was convicted of assault and unlawfully carrying a handgun in 2002. Judge Manck gave him 18 months and released him four months short of that on probation. . . . Almost immediately Dieterle was into legal trouble. Another judge ordered him to stay away from a woman he was bothering. Soon after that, authorities charged the man with another assault. Judge Manck did nothing. And even allowed Dieterle to move to Florida, removing his Maryland probation entirely. He didn't have to do that. . . . Last Wednesday, Dieterle allegedly murdered 19-year-old Samantha McQuillin. Florida police say he stabbed and strangled the woman to death, leaving her bloody body in a bathtub. Samantha's funeral was held today.

PENNSYLVANIA   

A Judicial Setback for the Rule of Law

by Kris W. Kobach

8-6-07 -- What do you get when you combine unchecked illegal immigration with judicial activism?  A perfect storm for the rule of law.  Unfortunately, that storm recently arrived in Pennsylvania. . . . On July 26, 2007, federal Judge James Munley of the Middle District of Pennsylvania issued an opinion striking down the efforts of Hazleton, Pennsylvania, to address the consequences of illegal immigration within its jurisdiction. . . . Hazleton -- a small town in the Pocono Mountains with just over 30,000 residents -- had enacted ordinances that prohibited landlords from knowingly renting apartments to illegal aliens and prohibited local businesses from knowingly employing illegal aliens. In Hazleton, the impact of illegal immigration has been severe.  Illegal aliens have committed several murders in the past two years in a town that previously saw murder occur only once about every seven years.  Drug-trafficking and gun-running gangs comprised mostly of illegal aliens, MS-13 included, moved to this sleepy town.  Drug crimes increased, with illegal aliens representing 30 percent of those arrested. . . . At the same time, the City’s budget became stretched to the breaking point.  Illegal aliens working off the books were consuming city services without contributing anything to the City’s income tax base.  . . . Predictably, as soon as Hazleton passed its ordinance, the ACLU, the Puerto Rican Legal Defense and Education Fund (PRLDEF), and liberal allies at the silk-stocking Philadelphia law firm of Cozen O’Connor took Hazleton to court.

GENERAL

CourthouseForum.com Announces the Launch of
Its Judicial Evaluation Survey Journal

On its second anniversary, CourthouseForum.com adds a journal of the thousands of judicial evaluation survey comments that have been posted on the website. The website lists over 27,000 of the nation's state and federal judges.

8-1-07 -- (PRWEB) On August 1, 2007, CourthouseForum.com is launching its Survey Journal, which contains over 8,200 judicial evaluation survey comments. The Survey Journal lists, by state, each judge who has received a survey comment. Visitor opinions range from praise to allegations of judicial corruption. . . . CourthouseForum.com was launched on August 1, 2005, as a unique and comprehensive platform for the open and candid evaluation and discussion of cases, courts, legal issues and the judiciary. CourthouseForum.com now has a directory listing over 27,000 of the nation's judges, and is the only website of its kind. There is a specific discussion forum and survey for each judge where visitors may freely and candidly discuss and evaluate the judge. . . . In April, voting was concluded for the worst judges of 2006. More than 29,000 votes were cast for over 1,265 judges throughout the nation. Cobb Judicial Circuit in Georgia was the venue with the most votes cast. Voting for the worst judges of 2007 will begin January 1, 2008. . . . Website participation is free and may be anonymous. Since the website's launch, CourthouseForum.com has received over 2.4 million hits, 8,200 surveys, 2,500 survey comments and 7,200 forum posts. Numerous features have been added to the site since its launch, with many more to come in the near future.  . . . CourthouseForum.com is the nation's most comprehensive website for rating the nation's courts and judges and discussing courthouse activity. CourthouseForum.com is owned and operated by Government Forums, Inc.

July 2007

NORTH CAROLINA  

Visiting judge helped deputy

7-18-07 -- It was no surprise that a grand jury refused to indict former New Hanover County Sheriff's Deputy Christopher Long in the shooting death, through a closed door, of an unarmed 18-year-old man suspected of armed robbery. . . . The judge all but assured that result. . . . Richard Beale, from Richmond County, ignored precedent by allowing Long to plead his case directly before the grand jury - which meant in secret. The public was not allowed to hear what he had to say. . . . Beale also allowed the father of the victim to testify - an inexplicable decision, because the father wasn't there. He wasn't even in Wilmington. . . . Finally, Beale allowed grand jurors with connections to the New Hanover Sheriff's Department and UNCW to take part in the decision. . . . Given Beale's actions - and the refusal of North Carolina grand juries to indict a single law-enforcement officer in connection with more than 100 deaths in the past seven years or more - it is difficult to argue with cynics who are already saying "the fix was in." . . . It will be difficult to argue that North Carolina's court system holds law-enforcement officers to the same standards as everyone else.

March 2007

Why We Need The "We The People" Act (H.R. 300)

By Tom DeWeese, NewsWithViews.com

3-21-07 -- The United States of America was created to be a Constitutional Republic, not a democracy. A Constitutionally limited republic is restricted to the protection of individual rights. As outlined in our Constitution, the role of the federal government is strictly controlled in well-defined responsibilities. According to the 10th Amendment, all other powers and responsibilities are assigned to the 50 individual, sovereign States, which also are Republican governments. . . . A democracy is ruled by a majority of votes. Under such a system, no rights may be guaranteed since a simple majority can overturn them. The result of a democracy is a form of collectivism, which denies individual rights.

Today, judges in federal courts are handing down decisions that many times over turn specific State laws that should be protected by the 10th Amendment. The assault on our Republican form of government by the use of such judicial powers affects all aspects of our society. . . . The common term is "activist judges." Many believe a more accurate term is "Constitutionally-defiant" judges. So great is their power that school boards are literally banning everything from voluntary prayer in schools to wearing a tee shirt with a Christian message, for fear federal courts will take action against school officials. Now even state and local courts are making identical rulings from fear of being overturned by higher courts.

Problem:

1. Federal judges are using their bench power to effectively make laws that have not been Constitutionally created by Congress. . . . [Read: Imperial Judiciary]

2. In recent years Federal judges regularly have struck down State and local laws in subjects such as religious liberty, sexual orientation, family relations, education and abortion.

3. This "government by Federal judiciary" causes a virtual nullification of the Tenth Amendment's limitations on Federal Power.

4. Further, when Federal judges impose their preferred policies on State and local governments, instead of respecting the policies adopted by duly elected legislatures, city councils and county commissions – bodies duly elected by – and thus accountable – to the people, our republican form of government is threatened.

5. The Supreme Court, the highest court in the land, has issued decisions that, in effect, have overturned abortion laws of all 50 states.

6. There is looming danger that Federal judges with political agendas will use their bench powers to overturn voter-approved ballot measures and legislative efforts in such issues as the definition of marriage.

As a result of this abuse of judicial power, the federal government grows ever more invasive, as the states become ever more subservient.

Congressman Ron Paul (R-TX) has said, "Congress has a responsibility to protect the states from threats to their republican form of government, whether by a foreign power or one of the other two branches. Government by judiciary is incompatible with republican government. Therefore Congress must act to rein in the out-of-control federal judiciary."

Solution:

To that end, Congressman Paul has introduced the "We the People" Act, (H.R. 300) [more]

February 2007

Judge Breaks the Code of Silence to Expose

the Liberal Judicial Assault

A Discussion with Robert H. Dierker, Jr., Author of

"The Tyranny of Tolerance"

Activist judges, deep-pocketed special interest groups, and others have been waging an attack on America’s courts. Slowly disappearing are the rights guaranteed by the Constitution. This has prompted, for the first time, sitting judge Robert H. Dierker, Jr. to blow the whistle on what he claims is our out-of-control courts, a move that may ultimately cost him his job as a trial judge in St. Louis, Missouri. . . . “As a judge, I have taken an oath to support the Constitution of the United States. I cannot in good conscience sit idly by and watch the destruction of that Constitution by a judiciary that is no longer independent,” says Judge Dierker. “Despite a tradition of silence by judges on such topics, I can no longer keep quiet about what I, as an insider, have seen happening in, and to, our courts.”

December 2006

TEXAS  

Lawyer Sues Judge Alleging False Imprisonment

New York Lawyer, By Mary Alice Robbins, Texas Lawyer

A Sherman, Texas attorney who alleges that 336th District Judge Lauri Blake had him removed from her courtroom in Fannin County and detained in a holding cell has sued Blake for false imprisonment. . . . In his original petition filed Dec. 5 in the 336th District Court, solo David Stagner alleges that on July 29, 2005, he failed to show up for a hearing in a divorce case, because he had requested a jury trial and assumed that the case had been removed from the court's nonjury docket. Later that day, Blake summoned Stagner to her courtroom and ordered him to go to the district court's office to pay the jury trial fee. . . . According to a hearing transcript attached to Stagner's petition in David M. Stagner v. Laurine J. Blake, Stagner was attempting to have an exhibit that showed he had already paid the fee marked for identification as evidence, when Blake ordered him to give the exhibit to the bailiff.

The Jury Snub

A conservative form of judicial activism.

By Seth Rosenthal

 12-19-06 -- For the most part, today's intense debate over the proper role of the courts—that is, the debate over judicial activism—focuses on a small number of Supreme Court decisions. This is unfortunate, because the lower federal courts decide far more seemingly unremarkable civil cases that matter a great deal for understanding when judges overreach. Unlike the cases that capture everyone's attention, these cases turn not on vexing issues of constitutional interpretation, but rather on how the facts of the lawsuit should be weighed—and on who should weigh them. . . . In our legal system, juries, not judges, are supposed to decide the facts. That's what the framers required when they adopted the Seventh Amendment, which guarantees the right to trial by jury in civil cases. Yet in a series of recent rulings, lower-court judges have been taking contested factual issues out of the hands of juries and substituting their own judgments instead. Have they been big-footing juries more than usual lately? No one has done a systematic survey, so it's hard to say. But there are enough cases in which this has happened to take note. Also noteworthy is that the judges engaged in slighting juries are not the liberals so often accused of activism, but conservatives, many of them appointed by George W. Bush. . . . Here's the legal standard that ensures juries will decide the facts of a case: Trial court judges must take the plaintiff's evidence as true and must let a case go to the jury unless, given that favorable view of the evidence, there is no way any reasonable juror could find for the plaintiff. Appellate judges must ensure that trial judges abide by this rule. In a string of recent cases, however, some appeals-court judges have voted to allow trial courts to grant "summary judgment"—or dismiss a case before trial—even though a jury might reasonably see a violation of the law in the evidence.

Related in Slate

In June, Seth Rosenthal dispelled the "myth" of the hands-off conservative jurist. In 2005, Dahlia Lithwick argued that legislative overreaching can be just as bad as judicial activism. In 1999, Bruce Gottlieb considered how the Senate is (and isn't) like a jury.

Judges for Sale

It is long past time to drain the influence
money from America's system of justice.

By Dorothy Samuels

12-14-06 -- It was bound to happen sooner or later. Special interests have long targeted candidates for executive offices, like president and governor, and legislative offices, like Congress and state legislatures. It was just a matter of time before well-heeled business and other interests would expand their influence-peddling efforts, and begin pouring large amounts of money into previously sleepy judicial campaigns. . . . Several years ago, it started happening — first in just a few states, then spreading to a lot more. The unwholesome result is the dawn of a new era of raucous million dollar-plus campaigns for key state judgeships that is forcing more and more would-be jurists to bond with special interest backers, and invest in cheesy 15- and 30-second TV spots, if they want to get on the bench, and stay there. . . . As spending by special interests in state judicial elections soars into the stratosphere, something very precious to Americans is being grievously compromised. And in certain pockets of the country, it seems well on the way to being lost altogether. That precious something is the integrity and impartiality of the nation's courts. . . . Justice, the saying goes, is blind — symbolized in courthouses across the country by statues of Lady Justice, blindfolded so she can rule without fear or favor. But increasingly, there is one thing Justice in America can see quite clearly — who is giving her money. A modern rendition of Lady Justice would show her with one arm extended, reaching for large campaign contributions. Those contributions — from insurance companies, big business, tobacco companies, the building and health care industries, unions, trial lawyers, the religious right, and other special interests — do more than create a bad appearance. They seem to be having an effect on the decisions courts are making. . . . If we want to preserve an independent and impartial judiciary — something that is a shining part of what America stands for, and an indispensable guardian of American rights — getting rid of the corrupting influence of money sloshing around in judicial campaigns is now a matter of genuine urgency.

November 2006

A CSPAN Debate: Reining in Activist Judges

From the Desk of Judicial Watch President Tom Fitton

11-03-06 -- Last week, I wrote about many Americans’ concern about judicial activism, as exemplified by the recent New Jersey Supreme Court’s decision granting the benefits of marriage to gay couples. Well, this week, on Thursday morning, I participated in an interesting debate on CSPAN’s program Washington Journal that touched on this subject. 

During the program, we discussed, in general, attempts by voters to rein in activist judges, focusing specifically on a ballot measure in Colorado (Proposition 40) that seeks to impose a 10-year term limit on elected judges.  (Incumbent judges who have already served the limit would be forced out after the 2008 elections.)  The ballot measure also mandates a more frequent review process for judges as well.  Mary McQueen, President of the National Center for State Courts, was the other participant in the discussion, which also involved Q&A from callers.

Colorado already has term limits for state legislators. Proponents of Proposition 40 are saying if they are good enough for one kind of elected official, why not for judges as well?  The measure was precipitated by a series of “activist” decisions by Colorado judges, who are appointed by the governor and subjected to a “retention election” every few years.  Prop 40 proponents say the longer a judge serves, the more likely it is they will become activists, rather than independent arbiters of justice. And one way to make sure judges who make “activist” decisions don’t do too much damage is to limit their term of office.  Opponents believe that good lawyers will not serve as judges for only ten years, and that the citizens of Colorado will lose experienced judges as a result of artificial term limits.  We’ll know on Tuesday what the voters think.

The Judiciary’s Problem?

Judge Eugene A. Lucci, Lake County Common Pleas Court

The largest problem facing the American judiciary today happens to be one of the greatest problems facing our nation, a problem which threatens freedom at its very foundation. That problem is judicial activism. Judicial activism is results-oriented judging, where a judge bases decisions on his or her personal opinion of what is fair or just, rather than on the law as written. Having chosen the outcome, the trick is for the activist judge to then find a way to legally justify the result. Typically, judicial activism is based on improper considerations of non-constitutional theories, the creation of new rights not expressly granted or preserved by the constitution or statute, or the invalidation of laws because the judge views them as bad policy, rather than being in conflict with express written laws or constitutional provisions.

The opposite of judicial activism is judicial restraint, where the constitution and laws lead inevitably to the correct result. Activism and restraint both refer to the process or method a judge uses to reach a particular decision; they do not refer to the political ramifications of that decision. Therefore, judicial activism and judicial restraint are neither inherently conservative nor inherently liberal. Judges who are political conservatives can engage in judicial activism to further their agenda, just as judges who are political liberals can engage in judicial restraint out of respect for the law.

The judiciary should be our government's least dangerous branch, not its most dangerous. Activism makes the judiciary most dangerous. The proper judicial philosophy should be to decide cases according to a neutral interpretation of the constitution and laws. Judging ought to be impartial. Judges ought not make policy from the bench; that is a legislative or executive branch prerogative. Judges should interpret and apply, not make, law. Judges should seek to apply the actual constitution rather than their own political preferences. Judges should put aside their personal opinions or convictions and interpret and uphold or strike down laws, after squaring them with the constitution, statutes, and case law. Proper judicial review is essential to constitutional order and the balance of power, and it is the duty of judges to defend the constitution. <MORE – PDF>

JUDICIAL ACCOUNTABILITY

Black's Law Dictionary, Sixth Edition:

Judge-made law.  A phrase used to indicate judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never intended. It is perhaps more commonly used as meaning, simply, the law established by judicial precedent and decisions. Laws having their source in judicial decisions as opposed to laws having their source in statutes or administrative regulations.

Judicial Activism.  Judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898):

Dissent: "This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it."

Cohen v. Virginia, 6 Wheat. 264, 404 (1821):

"It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one."