Judicial Articles of Interest to "We the People"

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June 2010

FEDERAL COURTS

Louisiana applauds judge's offshore drilling ruling

By Lesley Clark And Robert Samuels, McClatchy Newspapers, Kansas City Star   

06-27-10 -- Along the troubled waters of the Gulf of Mexico, U.S. District Judge Martin Feldman has become a bit of a folk hero. . . . He's the Ronald Reagan appointee who last week overturned the Obama administration's six-month ban on deepwater oil exploration, siding with oil service companies and the state of Louisiana, which argued the moratorium - coming on the heels of the gusher in the Gulf - would seriously weaken the state's economy. . . . "The court is persuaded that it is only a matter of time before more business and jobs and livelihoods will be lost," Feldman wrote. "An invalid agency decision . . . simply cannot justify the immeasurable effect on the 1/8companies3/8, the local economy, the Gulf region." . . . Jeanette Tanguis, 45, the wife of an oil rigger, couldn't agree more." . . . "This moratorium is an attack on our livelihood," said Tanguis, who says she's so worried about the future she can't sleep at night, anxious the next paycheck will be the last for her husband, Ken.

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FEDERAL COURTS

Judge refuses to delay oil drilling ban

(UPI)

06-25-10 -- A U.S. judge denied an Obama administration request to delay putting into effect his decision striking down a six-month moratorium on deep-water oil drilling. . . . U.S. District Court Judge Martin L.C. Feldman, ruling in New Orleans Thursday, denied an Interior Department request for a stay of the decision, which lifted a ban on new drilling projects and on work on the 33 rigs already drilling in the Gulf of Mexico.

Feldman said the moratorium was causing "irreparable" harm to gulf businesses dependent on drilling. He said the the White House failed to provide enough basis for the moratorium, which he called "blanket, generic, indeed punitive." . . . The New York Times reported the U.S. government is to appeal the decision.

Oil Drilling Moratorium Judge Described as Fair, 'Terrifying'

Leigh Jones, The National Law Journal

06-24-10 -- The judge who blocked the Obama administration's moratorium on deep-water oil drilling has a reputation as a stern jurist, but until now he has sparked little controversy during his 27-year judicial career. . . . With a reversal record since 2000 that is the second-lowest among the judges of the U.S. District Court for the Eastern District of Louisiana, Martin Feldman has navigated his position without much drama. Within the New Orleans legal community, the 1983 Reagan appointee has a reputation for demanding exactness and little tolerance for missteps from the attorneys who appear in his court. . . . "He can be terrifying," said a New Orleans attorney who didn't want to be identified because the judge has presided over some of his cases. . . . Since 2000, the 5th U.S. Circuit Court of Appeals has reversed Feldman 10 times, affirmed 107 out of 159 of his decisions and dismissed 24 appeals.

The Judge Behind The Ruling

By Dionne Searcey, Wall Street Journal  

06-24-10 -- The federal judge who slapped down the Obama administration's moratorium on deepwater drilling Tuesday has made a name for himself among the New Orleans legal community as a scholarly and conservative jurist. . . . U.S. District Judge Martin Feldman was a Reagan appointee and has served on the bench in the Eastern District of Louisiana since 1983. A graduate of Tulane University Law School in 1957, Judge Feldman, 76 years old, also serves on the U.S. Foreign Intelligence Surveillance Court, which operates in secrecy to handle surveillance warrants involving terror suspects. . . . "He has a great institutional respect for the federal court system," said U.S. District Judge Kurt Engelhardt, an Eastern District colleague. . . . Judge Feldman did not return calls seeking comment. . . . Some legal experts on Tuesday called the judge's ruling unusual and even audacious and suspected it could become a case for testing the limits of executive power. The ruling is under appeal to the historically conservative 5th Circuit Court of Appeals in New Orleans. . . . "I don't know that anyone up to this point had any substantial doubts that a temporary moratorium wasn't within presidential authority," said Richard Nagareda, a professor at Vanderbilt University Law School.

Judge Blocks Deep-Water Drilling Moratorium

By Charlie Savage, New York Times  

06-22-10 -- A federal judge in New Orleans on Tuesday blocked a six-month moratorium on deep-water drilling projects that the Obama administration had imposed in response to the vast oil spill in the Gulf of Mexico. . . . The White House swiftly said the administration would appeal the decision. . . . In a 22-page ruling, Judge Martin L. C. Feldman of Federal District Court issued a preliminary injunction against the enforcement of a May 28 order halting all floating offshore drilling projects in more than 500 feet of water and preventing the government from issuing new permits for such projects. . . . Citing the economic harm to businesses and workers in the gulf caused by the moratorium, Judge Feldman — a 1983 appointee of President Ronald Reagan — wrote that the Obama administration had failed to justify the need for the sweeping suspension, which he characterized as “generic, indeed punitive.”

FLORIDA  

Blasting Bank's Lawyer, Judge Wipes Out Homeowner's $207,000 Mortgage

Paola Iuspa-Abbott, Daily Business Review

05-27-10 -- All Orlando Eslava wanted from his lender was a loan modification to make his payments affordable. Instead, he got his $207,000 mortgage wiped out -- and a crash course in the confusing way foreclosures are unfolding in a court system chock-a-blocked with cases. . . . The teacher was Miami-Dade Circuit Court Judge Jennifer Bailey, who cancelled Eslava's debt after lender HSBC Bank USA ignored her previous order to post a $414,000 bond. . . . Bailey said the actions of William Huffman, HSBC's lawyer from Tampa-based Florida Default Law Group, were "contemptuous," according to a court hearing transcript. . . . HSBC's run-in with Bailey began in December 2009 when she granted the lender's motion for the foreclosure sale of Eslava's one-bedroom unit at El Dorado Tower in Aventura. But HSBC lost the note on Eslava's property. So the judge ordered the lender to post a $414,000 bond to indemnify Eslava in case another lender filed a claim against the unit.

CALIFORNIA  

Calif. Judge Files Writ Against Own Court

Kate Moser, The Recorder

05-11-10 -- San Diego County Superior Court Judge DeAnn Salcido on Friday took her grievances against her own court and supervising judge public, filing a petition for a writ of mandate to force the bench to crack down more on domestic violence probationers. . . . Salcido argues her colleagues are more interested in disposing of cases than they are in following state law. . . . "Domestic violence is a social, not just a personal problem, and it is in the public interest that the state law be obeyed and enforced by judges," Salcido said in her petition, filed Friday with the 4th District Court of Appeal. . . . Salcido argued that her fellow judges aren't imposing all of the mandatory conditions of probation dictated by Penal Code §1203.097. It says that if domestic violence defendants are granted probation, the terms should include a criminal protective order and successful completion of a batterer's program, among other things. In her writ, Salcido says that among the judges on her bench "it was common practice to send a domestic violence defendant to a 12-hour anger management course instead of the mandatory 52-week batterer class," and that other judges hadn't put protective orders in place.

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January 2010

TEXAS  

A good judge and a strong Texas law give animals their due

By Mike Norman, Fort Worth Star Telegram Editorial

01-07-10 -- I have a new hero. He’s Associate Judge Michael Smith of the Arlington Municipal Court, who this week hammered U.S. Global Exotics for mistreating about 27,000 animals. . . . His seven-page ruling in the case, delivered Tuesday after he wrapped up a seven-day hearing on the matter last week, was as solid, balanced and well-reasoned as any court opinion I have read. . . . From the looks of the photographs, video and audio posted online by People for the Ethical Treatment of Animals, he got it right. No animal should be forced to live under conditions like those at U.S. Global Exotics — and Texas law is written to protect "every living dumb creature" from exactly such conditions. . . . Call me cynical, but in many cases I find Texas law to be inadequate. In this case, the statutes are strong and clear in favor of protecting animals first and then sorting out the details in a custody hearing within 10 days. . . . Municipal courts aren’t exactly the Supreme Court of the United States. They mostly hear cases like contested speeding tickets and other traffic violations, complaints that people have failed to keep their property up to city code and public intoxication charges. . . . It’s not usually the place for a judge to make headlines, but each case involves a real person who deserves careful consideration and justice, as well as a legal complaint that must be answered.

April 2009

IOWA  

Credit judge for shining light on search warrants

The Register's editorial

4-13-09 -- Colonial Americans had good reason to be wary of the king's men rummaging through their homes and businesses. So the authors of the Constitution put limits on their new government's power to conduct searches without a citizen's knowledge or permission. . . . The Fourth Amendment says that no search warrant will be issued to the police without "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." . . . American history is replete with examples of government abuse of the Fourth Amendment, however, which is ample justification for a new policy on search warrants recently established by Arthur Gamble, chief judge of the 5th Iowa Judicial District. . . . Search warrants - like most court records - are open to the public, but there are limits: Iowa law requires that "all information" regarding a search warrant "shall be a confidential record" until the warrant has been executed by police and the results of the search reported to the court.

2007

ARIZONA  

Injustice System

A Phoenix Municipal Court judge quits — and, finally, the truth comes out

By Sarah Fenske 

5-31-07 -- This month, Phoenix Municipal Court Judge Karyn Klausner did something that no one in her position had done for decades. . . . She quit. . . . Didn't retire. Didn't get pushed out by the city council, and didn't leave for an appointment to another court. . . . Nope, Klausner just decided to walk. And with that decision, the 45-year-old left a job that pays $140,000 a year, plus benefits. A job that rarely requires even a 40-hour week. A job, she tells me, that she loved. . . . You hear something like that, and you might think Karyn Klausner is a little bit crazy. But after I sat down with Klausner for coffee last week, I had an entirely different opinion. . . . Fact is, Superior Court, with its juicy murder trials, gets all the ink. But most of us are far more likely to end up in municipal court. It's court for screw-ups: drunken drivers, shoplifters, bar brawlers. . . . If your kid gets charged with underage drinking, it's a municipal court judge who handles the case. If the city tells you to move that broken-down Chevy from your front yard, and you don't get around to it, it's the municipal court that could send you to jail. . . . To hear Klausner tell it, though, Phoenix Municipal Court is no better than a kangaroo court when it comes to its judges. And after looking at the evidence, I'm inclined to agree.

FEDERAL COURTS

Appellate Judge Troubled by “Insidious” If Well-Intended Bias on Bench

By Victor M. Inzunza

1-19-07 -- The judiciary has an inherent and insidious bias in favor of legal procedures and solutions, said Chief Judge Dennis G. Jacobs of the 2nd U.S. Circuit Court of Appeals in New York. Delivering his first speech since becoming chief judge as part of Fordham Law School’s John F. Sonnett Memorial Lecture in McNally Amphitheatre on Nov. 20, Jacobs said the bias has led to an expansion of judicial influence over nearly every sector of society from schools and prisons to religion and medicine. . . . Jacobs made clear that the bias is not a political one, but one that places legal thought and solutions above all else in society. . . . “The tropism in favor of what lawyers do and the tendency to expand the spheres of activity in which lawyers act and control comes clothed in virtue,” Jacobs said. “It is seen by us mainly as respect for due process, as the open door to the courthouse, as a flower in the rule of law. So any excesses are viewed with indulgence as a Tocquevillian quirk of the American character. . . . “But it is unbecoming of judges to dismiss this phenomenon. It matters that our conduct as judges is reinforced by the support and praise that we get from colleagues, lawyers, bar associations. … I think fair-minded people should recognize the dangers that arise when judges, as the final arbiters for allocating vast power, money and influence, are all members of the same, self-regulating profession and often the same professional groups and social environments.” . . . The “inbred” preference by judges to find solutions to public policy and other issues through the legal process is infused, he said, with a kind of smugness that such procedures “produce the best results.”

American Legal System Is Corrupt Beyond Recognition

Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit
Told Harvard Law School

3-7-03 -- "The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature . dictated by God himself . is binding . in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority . from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation," said Jones. . . . She said that the business about all of the Founding Fathers being deists is "just wrong," or "way overblown." She says they believed in "faith and reason," and this did not lead to intolerance. . . . "This is not a prescription for intolerance or narrow sectarianism," she continued, "for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots. . . . "The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist when your own people are being killed." . . . According to the judge, the first contemporary threat to the rule of law comes from within the legal system itself. . . . Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, "described lawyers as a natural aristocracy in America," Jones told the students. "The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart from the passions of the majority. Lawyers were respected by the citizens and able to guide them and moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the majority. . . . "Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is hard for us to do so. . . . "The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients' goal through deft manipulation of the law. . While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law," . . . Similarly, asked Jones, how can a system founded on law survive if the administrators of the law daily display their contempt for it? . . . "Lawyers' private morality has definite public consequences," she said. "Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable." . . . The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself. . . . The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy. . . . "Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions," said Jones. "Each of these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,' the moral foundation or direction of law." . . . "The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: "The whole of modern thought . has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of . our purely mechanistic understanding of the universe." . . . Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: "The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. . The historical soil of the Western legal tradition is being washed away . and the tradition itself is threatened with collapse." . . . Judge Jones concluded with another thought from George Washington: "Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens." . . . Upon taking questions from students, Judge Jones recommended Michael Novak's book, On Two Wings: Humble Faith and Common Sense. . . . "Natural law is not a prescriptive way to solve problems," Jones said. "It is a way to look at life starting with the Ten Commandments." . . . Natural law provides "a framework for government that permits human freedom," Jones said. "If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - 'from each according to his ability, to each according to his need?' I don't even remember it, thank the Lord," she said to the amusement of the students. . . . "I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time," Jones said, although she did concede that there were other ways to accommodate the rule of law, such as constitutional monarchy. . . . "Our legal system is way out of kilter," she said. "The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything."

CONNECTICUT  

A Necessary Check On 'Robe-Itis'

By Mitchell Pearlman

12-04-06 -- No one can question the courage of senior Associate Supreme Court Justice David Borden. He filed the complaint, and made public the events, that led to the Judicial Review Council's sanctioning of former Chief Justice William J. Sullivan for trying to keep from the legislature a court decision limiting public access to judicial records. . . . He's leading a much-needed overhaul of the judicial branch's rules and policies on transparency, even in the face of intense opposition by some of his colleagues on the bench. But perhaps he showed the most courage when he recently met in a no-questions-barred session with members of the Connecticut Council on Freedom of Information. . . . The council is an umbrella group representing the state's print, broadcast and cable news media. It advocates for strong open government laws and a vigorous First Amendment. It's been most critical of the culture of secrecy in Connecticut courts and is crusading for a constitutional amendment to assure greater accountability over our judges. . . . So Justice Borden knew he was entering the proverbial lion's den in meeting with them.

The purpose of this website is to help the public become better informed about the judges who may be presiding over their case. This site puts a mirror to those public servants who make-up our courts. Judges can also become better informed about how others (particularly, lawyers) view them. Robeprobe serves as a report card that lawyers and litigants can use to grade the best performing judges and the worst performing judges.

Remarks of Judge Seymour D. Thompson in an address before the Bar Association of Texas in 1896 (30 Am. Law Rev., 678).

1896 -- After referring to many cases in which the court had exercised authority beyond their rightful powers, he thus sums up, in language which reproduced below for its intrinsic power. Judge Thompson said:

There is danger, real danger, that the people will see at one sweeping glance that all the powers of their governments, Federal and State, lie at the feet of us lawyers—that is to say, at the feet of a judicial oligarchy; that those powers are being steadily exercised in behalf of the wealthy and powerful classes and to the prejudice of the scattered and segregated people; that the power thus seized includes the power of amending the Constitution; the power of superintending the action, not merely of Congress, but also of the State legislature; the power of degrading the powers of the [ 19 ] two houses of Congress, in making those investigations which they may deem necessary to wise legislation, to the powers which an English court has ascribed to British colonial legislatures; the power of superintending the judiciary of the States, of annulling their judgments and of commanding them what judgments to render; the power of denying to Congress the power to raise revenue by a method employed by all governments; making the fundamental sovereign powers of government, such as the power of taxation, the subject of mere barter between corrupt legislatures and private adventurers; holding that a venal legislature temporarily invested with power may corruptly bargain away those essential attributes of sovereignty, and for all time; that corporate franchises bought from corrupt legislatures are sanctified and placed forever beyond recall by the people; that great trusts and combinations may place their yoke upon the necks of people of the United States, who must groan forever under their weight, without remedy and without hope; that trial by jury and the ordinary criminal justice of the State which ought to be kept near the people are to be set aside and Federal court injunctions substituted therefor; that those injunctions extend to preventing laboring men from quitting their employment, although they are liable to be discharged by their employers at any hour, thus creating and perpetuating a state of slavery. There is danger that the people will see these things all at once; see their enrobed judges doing their thinking on the side of the rich and powerful; see them look with solemn cynicism upon the sufferings of the masses nor heed the earthquake when it begins to rock beneath their feet; see them present a spectacle not unlike that of Nero fiddling while Rome burns. There is danger that the people will see all this at one sudden glance, and that the furies will then break loose, and that all hell will ride on their wings.