UNITED STATES
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United States Supreme Court Current News & Views
June 30-July 1, 2009
UNITED STATES
SUPREME COURT
Will Campaign Finance Case Impact Vote on Sotomayor?
Tony
Mauro, The National Law Journal
7-1-09 --
The Supreme Court's
unusual order Monday delaying a decision in
Citizens United v. Federal Election Commission and
setting it for reargument Sept. 9 may introduce more pressure on the
Senate to confirm Supreme Court nominee Sonia Sotomayor and have her
on the bench by then. . . . Here's how it works: the Court, for
whatever reasons -- and theories abound -- ordered new arguments and
wants the parties to file additional briefs on whether the Court
should overturn its 1990 decision
Austin v. Michigan Chamber of Commerce and part of
the 2003 ruling in
McConnell v. FEC. Both decisions upheld bans on
independent expenditures in connection with campaigns from
corporations and unions. The only way corporations and unions can
participate in campaigns now is through regulated political action
committees.
FEDERAL
COURTS
3rd Circuit Recognizes New Cause of Action for Civil Rights
Violations at Nursing Homes
Shannon
P. Duffy, The Legal Intelligencer
7-1-09 --
In
a landmark opinion that recognizes a new category of lawsuits,
the 3rd U.S. Circuit Court of Appeals has ruled that the Federal
Nursing Home Reform Amendments give residents of county-run nursing
homes the right to bring civil rights claims under Section 1983 to
challenge the quality of their treatment. . . . "The language used
throughout the FNHRA is explicitly and unambiguously
rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his
23-page opinion in Grammar v. John J. Kane Regional Centers. . . .
"These provisions make clear that nursing homes must provide a basic
level of service and care for residents and Medicaid patients,"
Nygaard wrote in an opinion joined by U.S. Circuit Judge D. Brooks
Smith.
Anatomy of a $1.67 Billion IP Verdict
Zusha
Elinson, The Recorder
7-1-09 --
News of Monday's record-setting $1.67 billion patent verdict against
Abbott Labs had patent lawyers slack-jawed across the
country. . . . But perhaps even more surprising to some was the
lawyer on the losing side:
WilmerHale's William Lee, one of the biggest names in
intellectual property litigation. . . . Lee and local co-counsel
David Beck of Beck Redden & Secrest were trying to fight
allegations that client Abbott's profitable
arthritis drug Humira was infringing on rival
Johnson & Johnson's IP. On Monday, they faced off in a
federal courtroom in Texas in closing arguments with J&J's lawyers:
Dianne Elderkin of Woodcock Washburn and local counsel
Richard Sayles of Sayles Werbner. . . . The out-of-town
lawyers -- Lee is from Boston, and Elderkin is from Philadelphia --
took about half an hour each, with the Texas lawyers finishing the
last 15 minutes on folksy notes. With so much at stake, at least one
courtroom observer was surprised by the dry style of Lee's closing.
. . . "It was more like an argument you'd make to an appellate court
than to a group of jurors," said Leon Carter, a Dallas trial lawyer
who was one of just about 20 people watching the action from the
gallery. . . . Carter, a Munck Carter partner, also said that Lee's
body language didn't help him connect with the jurors.
Circuits Split on Sentencing for Financial Fraud
At
issue is whether people who are reimbursed for financial losses from
criminal schemes should be counted as victims
Sheri
Qualters, The National Law Journal
6-30-09 --
The 1st U.S. Circuit Court of Appeals on Monday waded into a growing
circuit split over how tough judges can be on defendants accused of
financial fraud. . . . At issue is whether judges should count
people who are reimbursed for financial losses from criminal schemes
as victims when deciding whether to increase a defendant's sentence.
. . . In a pair of opinions, Judge Kermit V. Lipez, writing for
unanimous 1st Circuit panels, upheld 72-month sentences for
defendants who were accused of stealing debit card numbers, personal
identification numbers, credit card numbers and ultimately money,
from customers of Stop & Shop supermarkets in Rhode Island. The
cases are United States v. Stephanian and United States v.
Ter-Esayan.
CALIFORNIA
Calif. High Court Gives Workplace Violation Suits Route Around Class
Certification
Mike
McKee, The Recorder
7-1-09 --
Employees wanting to sue their bosses for workplace violations were
given an alternative route Monday that gets around the arduous task
of gaining class certification under unfair competition laws. . . .
By unanimous vote, the California Supreme Court ruled in two
companion cases that employees need not meet class requirements if
they seek civil penalties for themselves and others under the Labor
Code Private Attorneys General Act of 2004, commonly called PAGA. .
. . That was significant because the court also held -- as parties
on both sides expected -- that individuals trying to bring unfair
competition suits on behalf of others must qualify them as class
actions. Employers have been able to fend off UCL suits through rulings denying class certification.
Judge Peter McBrien found to violate the Judicial
Code of Ethics on four counts
Laura
Lynn, LA Family Courts Examiner
6-30-09 --
The
Commission on Judicial Performance Special Masters'
Report found Judge Peter McBrien of Sacramento violated the
Judicial Code of Ethics on four counts in regards to a
family law matter. . . . A copy of the full report, 147 pages can be
emailed by request to this reporter at
Bohemian_books@yahoo.com or by contacting the CJP. . . .
A summary of the charges included: . . . Judge McBrien terminated a
trial in the middle of a parties case-in-chief, without giving the
party a chance to complete the presentation of evidence or offer
rebuttal evidence, and denied that party his constitutional right
to due process and a fair trial.
No Regrets on Prop 8, Calif. Chief Justice Says
Mike
McKee, The Recorder
6-30-09 --
As much as he might have liked to see his landmark ruling favoring
same-sex marriage stand, California Chief Justice Ronald George knew
he was doing the "right thing" when he
upheld Proposition 8 late last month.
"It was so clear to me that was the
only right thing to do," he said in an interview Friday. "I've been
on the bench for 37 years and have had to let the law take me where
it had to, regardless of my own personal views." . . . George gave
his thoughts on the Prop 8 ruling --
Strauss v. Horton, 09 C.D.O.S. 6281 -- during a
75-minute interview with The Recorder in his San Francisco chambers.
He agreed to talk only because the ruling had become official on
Thursday. . . . The chief justice spoke about his reasoning, the
reaction it produced, and noted repeatedly that the public has the
option of returning to the ballot box, if it wishes. He dismissed
questions about how the same-sex marriage cases will affect his
legacy.
CONNECTICUT
Judging The Judges
Connecticut Law Tribune
6-29-09 --
Not since 1978 has Connecticut judged its judges through a
comprehensive judicial performance evaluation. It was in that year
that the judiciary lobbied the Connecticut Bar Association
leadership to end its nationally acclaimed review program. Judicial
Branch officials cited fears of an end to judicial independence and
potentially unfair attacks on judicial character. The then-chief
justice claimed that the judiciary could review the performance of
its own judges and would quickly implement a judicial performance
program. . . . The judges did eventually implement a survey that is
filled out by those having significant hearings or trials before an
individual judge. But this survey is a far cry from that utilized by
the CBA in the late 1970s. The surveys are limited to a narrow group of
respondents, allow no written comments, and are not disseminated to
the public. . . . We are left, then, with a judicial reconfirmation
system that resembles the Star Chamber. Critics who come forward to
challenge reappointment of a single judge may be mercilessly
attacked by the Judiciary Committee for their “temerity” and lack of
corroboration. At the same time, a judge who becomes the object of
criticism has no means of defense, and is similarly held up to
suspicion and standard-less review.
LOUISIANA
Two months after arrest, St. Bernard Parish Judge Wayne Cresap
formally charged in conspiracy with two lawyers
by Chris
Kirkham, The Times-Picayune
State District Judge Wayne
Cresap. |
7-1-09
-- More than two months after being arrested by the FBI in
connection with a judicial corruption scheme, St. Bernard Parish
Judge Wayne Cresap has been formally charged with conspiracy to
commit wire fraud. Two St. Bernard Parish lawyers were indicted
along with him Wednesday. . . . Wayne Cresap, 62, was formally
charged by the U.S. Attorney's office on a bill of information along
with St. Bernard Parish lawyers Victor J. "V.J." Dauterive and
Nunzio Salvadore "Sal" Cusimano. . . . According to the bill of
information, Cresap allegedly took more than a thousand dollars in
cash from each lawyer in exchange for allowing inmates to be
released from the St. Bernard Parish Prison without putting up money
for the bond. /
Read the bill of information
NEW JERSEY
NEW YORK
Judge Gives Madoff 150-Year Sentence for 'Extraordinarily Evil'
Crimes
Mark
Hamblett, New York Law Journal
6-30-09 --
Victims of Bernard L. Madoff broke out in cheers and applause on
Monday as Southern District of New York Judge Denny Chin ordered a
150-year prison sentence for Madoff's gigantic Ponzi scheme. . . .
"Symbolism is important," Chin said as he hit Madoff with the
maximum possible term -- by far the largest ever for a white-collar
crime, imposed for offenses the judge called "staggering" in size
and scope. . . . "Here, the message must be sent that Madoff's
crimes were extraordinarily evil," the judge said. "This is not a
bloodless financial crime that occurred only on paper, but one that
took a staggering human toll." . . . The sentence was ordered after
the judge heard 50 minutes of tearful testimony from nine
heartbroken victims of a fraud in excess of $13 billion in investor
losses to date. Madoff, 71, reportedly admitted the fraud was in
excess of $50 billion when he confessed to his sons and prepared for
his arrest on Dec. 11.
PENNSYLVANIA
Board trial for district judge accused of altering
records
By Larry
King, Philadelphia Inquirer Staff Writer
6-30-09 --
Accused of altering records in a case involving her grandson and
using "indecorous language and behavior" toward a police officer, a
district judge faces formal charges before a state disciplinary
board. . . . Judge Susan E. McEwen, who has held court in
Feasterville for more than 22 years, is accused of misconduct in a
complaint filed yesterday afternoon by the state Judicial Conduct
Board. . . . McEwen, 60, now faces a public trial on the charges
before the state Court of Judicial Discipline. If found guilty,
McEwen could face sanctions ranging from reprimand to removal. . . .
The charges were made public late yesterday afternoon. McEwen has an
unlisted home phone number and could not be reached for comment.
TEXAS
Keller Files #10: Judge’s trial is only the first step
By Chuck
Lindell | Austin American-Statesman
6-30-09 --
The August trial on misconduct charges against Sharon Keller kicks
off a potentially lengthy process that will determine whether Keller
keeps her job as presiding judge of the state’s highest criminal
court. Here’s how it works. . . .
Step 1: The special trial . . . Slated to begin Aug. 17 in
San Antonio and last about a week, these proceedings will resemble a
civil trial — with opening statements, closing arguments and in
between, witnesses called and cross examined. . . . But instead of
rendering a verdict, state District Court Judge David Berchelmann
Jr. — appointed by the Texas Supreme Court to oversee Keller’s trial
as “special master” — will issue findings to the State Commission on
Judicial Conduct. That’s the 13-member investigative agency that
charged Keller with misconduct. . . . Berchelmann has no time limit
to produce his findings other than a state rule that requires him to
act “promptly.”
June 27-June 29, 2009
UNITED STATES
SUPREME COURT
Newtown Square mom may take case to Supreme Court
By
Kristin E. Holmes , Philadelphia Inquirer Staff Writer
6-29-09 --
The decision that Donna Kay Busch and her attorneys must make by
Aug. 31 could put the Newtown Square mother of three before the U.S.
Supreme Court. . . . She is considering whether to continue with a
case that tackles issues of free speech and separation of church and
state. If she goes forward, Busch says, the only cause she wants to
strike a blow for is her son Wesley. . . . "I am his advocate," said
Busch, 47, a business consultant. . . . In a 2005 lawsuit against
the Marple Newtown School District and its officials, Busch contends
that her and her son's right to religious expression was violated
when she was not allowed to read from the Bible during an exercise
in Wesley's kindergarten class at Culbertson Elementary School in
Newtown Square.
Inside the Supreme Court Confirmation Process:
Q&A With Sen. Ted Kaufman
David
Ingram, The National Law Journal
6-29-09 --
Sen. Ted Kaufman, D-Del., worked behind the scenes on
Supreme Court nominations for much of the last three decades, as an
adviser and chief of staff to then-Sen. Joe Biden, D-Del. Biden, for
part of that time, organized the confirmation process as chairman of
the Senate Judiciary Committee. Now, as Biden's successor and a
member of the Judiciary Committee, Kaufman will have the chance to
question and vote on a nominee when the Senate weighs in on
Judge Sonia Sotomayor. . . . Kaufman recently
wrote about "judicial activism" for The National Law
Journal. He also sat down to reflect on his experiences on Biden's
staff. What follows is a transcript of the interview edited for
length and clarity.
FEDERAL
COURTS
Civil Rights Laws Don't Insulate Against 'Innuendo,' Judge Rules
Shannon
P. Duffy, The Legal Intelligencer
6-29-09 --
Ruling there is no constitutional right to be free from "innuendo,"
a federal judge has dismissed a civil rights suit brought by a
police chief who claimed his reputation was damaged when borough
officials posted an Internet notice that said he had been suspended.
. . . "A truthful statement that damages one's reputation simply
does not trigger any constitutional concerns," U.S. District Judge
J. Curtis Joyner wrote in his 28-page opinion in
McCarthy v. Darman. . . . Plaintiff Albert McCarthy
claimed in the suit that he was defamed because notice of his
suspension with pay pending the outcome of an investigation was
published on the Internet as part of the minutes from a borough
council meeting.
Madoff is sentenced to 150 years
Boston
Globe Legal Team
6-29-09 --
Bernard Madoff was sentenced to 150 years in prison for his
multibillion-dollar fraud scheme in a court room here today. . . .
"I cannot offer an excuse for my behavior," said Madoff, 71, who
also told the court, "I will have to live with the pain and torment
for the rest of my life." . . . In handing down the sentence, US
District Judge Denny Chin said, "The message must be sent that Mr.
Madoff's crimes were extraordinarily evil." . . . Madoff was
arrested late last year after confessing to his sons that his
secretive investment advisory business was a "big lie." . . . He
pleaded guilty to securities fraud and other charges in March and
has been jailed since. . . . Madoff's victims included Boston-area
investors and nonprofits. . . . Saphira Linden, the artistic
director of the Omega Theater in Jamaica Plain, was closely
monitoring news reports this morning about Madoff's sentencing. . .
. According to previous Globe coverage, the Omega Theater lost its
entire $70,000 endowment with Madoff. . . . Linden added that she
personally lost money as an individual investor as well. / Read the
government's
sentencing memorandum (pdf).
ARIZONA
The People Speak: Dismiss judge in child rape case from bench
Sharon
Tidwell, Council Hill / published in Muskogee Daily Phoenix
6-27-09 --
I couldn’t disagree more with the opinion stated in the June 21
article of “Editorially speaking” regarding the Pittsburg County
child rape case. The punishment Judge Bartheld imposed on David
Earls is shameful. It is high time that people (yes, even judges)
are held accountable for their actions. . . . Regardless of who
initiates the action of removing Bartheld, public opinion is clear
and stands firmly on the side of right. I applaud the resolution
Reps. Mike Ritze and Mike Reynolds have submitted. These gentlemen
are elected officials who are speaking for and acting on my behalf.
Since I don’t have the resources to voice my concerns to the Council
on Judicial Complaints, I am thankful they are making an effort to
correct what is wrong with our society and judicial system. . . .
Why not let of the people, for the people, and by the people work
for a change?
Judge Hinson admits guilt, resigns Sept. 30
By Bruce
Colbert, Sun Shopper Reporter
6-25-09 --
Yavapai County Superior Court Judge Howard D. Hinson Jr. is
resigning effective Sept 30. . . . His impending resignation will
resolve misconduct charges against him. . . . Under his agreement
with the Commission on Judicial Conduct he admitted to charges
against him and agreed to resign his job Sept. 30. . . . Based on a
complaint from an unidentified source this past February, the
commission started investigating Hinson. The complaint alleged that
Hinson exceeded the required 60-day time limit to rule on cases,
that he filed inaccurate monthly certifications declaring that he
did not have any cases more than 60 days old pending before him, and
that he did not institute a comprehensive administrative case
tracking system to ensure his compliance with ruling on cases within
the 60-day timeframe. . . . The conduct commission issued a press
release Thursday afternoon explaining the resolution of the charges.
. . . According to the commission, Hinson admitted that he did not
comply with the 60-day ruling time limit for 25 cases during the
past three years and that he submitted inaccurate ruling
certifications 11 times.
ARKANSAS
Arkansas Judge Faces Firing For Alleged Relationships With
Defendants
Associated Press, FOXNews
6-26-09 --
The Arkansas Judicial Discipline and Disability Commission on Friday
recommended that a Pulaski County circuit judge be removed from the
bench for having too close of a relationship with some defendants
who were on probation. . . . The commission unanimously found that
Judge Willard Proctor violated judicial rules 16 times through his
work with the Cycle Breakers probation program. The decision now
heads to the Arkansas Supreme Court, which will determine whether he
should be removed from office. . . . Proctor, who won office in 2000
by defeating judge who was fighting his own removal from office, was
investigated for financially benefiting from the program and his
relationships with probationers.
ILLINOIS
Nothing is more disgusting in Chicago than the lack of justice
By Ray Hanania, Southwest News-Herald
6-26-09 --
Had Anthony Abbate been Black, he would have had the book thrown at
him. But Anthony Abbate is an arrogant fat pig of a Chicago cop who
was caught on tape in a drunken stuper beating the crap out of a
young female bartender. I don’t mean “fat” as just some kind of
pejorative adjective, although that certainly hangs easily around
Abbate’s dirt bag neck. . . . At 250 pounds, he’s overweight and
that only added to the disgusting video scene as he pummeled,
pounded, beat, kicked and dragged mercilessly the 125-pound Karolina
Obrycka as she tended bar where she was working in February 2007 and
where Abbate was drinking himself into an alcoholic stupor. *****
Instead of throwing that fat dirt-bag cop in to jail, Cook County
Circuit Judge John Fleming gave the 40-year-old Anthony Abbate, a
slap on the hand: home curfew of 8 p.m. to 6 a.m. and 130 hours of
“community service.” . . . Who is this Fleming? Here’s his bio from
one of those legal web sites:
Legal Experience: 1980-83, assistant
general attorney, Chicago Park District (in house counsel); 1983-91,
assistant state's attorney, Cook County (traffic 4th Municipal
District and Felony Trial Divisions); 1991-94, deputy general
attorney, Chicago Park District (supervise the Litigation Division);
1994-1995, ALJ, City of Chicago (Personnel and Parking departments);
1996-1996, Director of Administrative Adjudication, City of Chicago.
. . . . Judicial Experience: Judge Fleming was first elected to the
bench in November of 1996. He was originally assigned to the 1st
Municipal District of the Circuit Court of Cook County. He served in
Traffic Court, Domestic Violence and Misdemeanor sections. He is
currently assigned to Felony preliminary hearings and Central Bond
Court at the Criminal Courts Building.
He has the “culture of corruption”
stamp padded all over him.
Judging The Judge in the Cop Beating Case
Dennis
Byrne, Chicago Daily Observer
6-26-09 --
For more than 20 years as a columnist, I’ve kept my mouth shut
whenever a judge or a jury makes a decision that I don’t believe is
right. Even when every opinionizer in the country was fuming over
the jury’s acquittal of O.J. Simpson of murder charges, I didn’t
write in disagreement, although I was mightily shocked. . . . The
reason is that I wasn’t in the courtroom, hearing all the facts and
law. I wasn’t in the jury room, listening to peers shift through the
evidence. Second guessing the justice system is a dangerous sport,
weakening our respect for the law and criminal proceedings. . . .
This self-imposed silence on my part is now challenged by one Cook
County Circuit Judge John J. Fleming, who sentenced a big cop to two
years probation for beating up a tiny woman bartender, as shown on a
security camera tape that circulated digitally around the world. The
250-pound cop, Anthony Abbate, also was ordered to perform 130 hours
of community service at a homeless shelter, attend anger management
classes, observe a strict 8 p.m. to 6 a.m. curfew during
the probation period and undergo drug and alcohol evaluations. . . .
Sounds like a lot, but it’s not much compared with the licking he
handed out to the bartender, Karolina Obrycka. Fleming could have
sentenced Abbate to as much as five years in prison, but the judge
said, “If I believed sentencing Anthony Abbate to prison would stop
people from getting drunk and hitting people, I’d give him the
maximum sentence. But I don’t believe that’s the case.” Well, judge,
deterrence, is supposed to be a part of it.
LOUISIANA
BR judge escapes court sanctions
By
Steven Ward, Advocate staff writer
6-27-09 --
The Louisiana Supreme Court ruled Friday it will not discipline a
Baton Rouge judge who ordered drug court defendants to pay more than
$83,000 in fines to an anti-substance abuse group the judge was
affiliated with at the time. . . . The Judiciary Commission of
Louisiana issued a report in April accusing state District Judge
William Morvant of violating the state’s code of judicial conduct by
“misusing the prestige and authority” of his office in improperly
sentencing defendants to pay fees of $50 to $100 to the I Care
program. The program was created for the East Baton Rouge Parish
school system to help students avoid the use of drugs, alcohol and
tobacco. . . . I Care is not certified by the state for drug
treatment. . . . The Judiciary Commission wanted the state’s high
court to censure or publicly reprimand Morvant and have the judge
pay $2,353.54 for the cost of its investigation.
NEW JERSEY
NJ Supreme Court justice gets tenure
The
Associated Press, Philadelphia Inquirer
6-27-09 --
Lawmakers have confirmed the reappointment of New Jersey Supreme
Court Justice Barry Albin. . . . The state Senate voted 27-11 early
Friday to grant tenure to the 56-year-old Albin, meaning he will be
eligible to serve until age 70. All 23 Democrats supported his
reappointment, as did four Republicans. . . . All 11 votes against
Albin were cast by Republicans who said they did not dispute his
qualifications for the post, but believe the overall court takes too
active a role in directing matters such as school funding and
affordable housing. . . . Albin, who turns 57 on July 7, was first
appointed to the court by former Democratic Gov. Jim McGreevey. The
Warren Township resident is one of four Democrats on the
seven-member court.
NEW YORK
Judge Calls Frivolous Suits Against Attorneys a 'Disturbing Trend'
Mark
Fass, New York Law Journal
6-29-09 --
A Staten Island, N.Y., judge has thrown out a small claims action
over a broken furnace filed by the buyer of a house against the
seller's attorney. . . . Civil Court Judge Philip P. Straniere (See
Profile) commended the claimant for admitting that after he
learned that the seller had moved out of state, he pursued the
action against the seller's attorney pursuant to his own attorney's
advice. His own attorney denies that claim. . . . The judge
nonetheless dismissed the action and scheduled a hearing to
determine the damages, if any, from the claimant's frivolous action.
. . . "This is another case of what appears to be a disturbing trend
of litigation being brought by persons suing attorneys who did not
represent them for that attorney's proper representation of his or
her client," Judge Straniere wrote in
DeFelice v. Costagliola, 81/09. "The theory behind
bringing these baseless legal actions being that owing to the small
amount of money involved, the lawyer would pay the claim rather than
engage in the cost of litigation." . . . Pro se claimant Joseph
DeFelice purchased a house in Rossville, Staten Island, in December
2008 from seller Catherine Able, who was represented by
solo-practitioner Jon Costagliola.
Editorial: Poor judgment
Kingston
Daily Freeman Editorial
6-28-09 --
SO, THE STATE Commission on Judicial Conduct has a problem with
Kingston City Court Judge James Gilpatric. . . . Again. . . . For
the second time in four years, Gilpatric is under disciplinary
proceedings for his actions on the bench. . . . Or, more properly,
for his inaction on the bench. . . . Gilpatric, previously
disciplined by the commission for being drunk on the bench, admits
he allowed cases that by law were to be decided in 30 days to
languish for up to three years. . . . Not his fault, he says. Was
doing the best that he could under the circumstances, he says. . . .
Unconvincing, we say. . . . The time in question is a
three-and-a-half-year period beginning in November 2004, two months
after his public drunkenness on the bench. . . . The commission
cites Gilpatric for failing to render judgments within 30 days of
final submissions on small claims and summary proceedings as
required by law, “delaying for as long as 10, 11, 12 or 14 months in
some cases. In one case ... (failing) to render a decision for at
least 30 months.”
OHIO
West Virginia case is a warning against mixing judges, money and
politics
The
Plain Dealer Editorial
6-29-09 --
The U.S. Supreme Court's ruling that a West Virginia Supreme Court
judge should have recused himself from a case involving a big
campaign contributor raises a caution sign for many states,
including Ohio. . . . The five-justice majority didn't set a hard
and fast standard for how much monetary influence was too much, and
that bothered the four-justice minority. . . . The dissenters fear
that the nebulous nature of the ruling will invite many more
challenges to elected judges' integrity. If that proves true, the
blame should be fixed where it belongs -- not on the court's
majority, but on states such as Ohio, whose insistence on the
popular election of judges cannot fail to politicize their courts.
PENNSYLVANIA
Editorial: Toss this judge off the bench
Philadelphia Inquirer Editorial
6-27-09 --
Philadelphia Common Pleas Court Judge Willis W. Berry Jr. should be
removed from the bench and stripped of his pension for brazenly
running a real estate business out of his chambers with city court
staff. . . . A state judicial-disciplinary court on Thursday made
the compelling case for Berry's ouster from an elected
post that pays him nearly $162,000 a year. It concluded that Berry
broke the law by using city workers and office equipment. . . . That
allegation should be pursued by city and state prosecutors. If
nothing else, prosecutors' inquiries will serve as a warning against
other city officials' using taxpayer-paid staff to conduct personal
business dealings. . . . To restore public confidence in the courts,
the most important move will be to strip Berry, 66, of his judicial
robes.
WISCONSIN
To recuse or not to recuse
By Steve
Jagler, Milwaukee Small Business Times
6-28-09 --
Should a justice on the Wisconsin Supreme Court recuse himself or
herself from cases involving litigants who donated $1,000 or more to
the judge's election campaign? . . . The court has the authority to
amend the state judicial code without having to run it past the
state legislature. . . . Justices on the court are pondering dueling
petitions on the issue of recusal. . . . The first petition was
filed by the League of Women Voters of Wisconsin Education Fund,
with full support from the Wisconsin Democracy Campaign and Common
Cause in Wisconsin. . . . In a joint statement, the three
organizations called for recusals when litigants contribute $1,000
or more to a justice's campaign "or tried to influence a campaign
through mass communications," i.e. bogus television "issue ads" that
always end with a phrase such as, "Tell Justice So-and-So to (fill
in the blank for whatever cause)."
State lawyer office files complaint against judge
Kessler
By Marie
Rohde of the Journal Sentinel
6-26-09 --
Appeals Court Judge Joan Kessler lied about her role in obtaining
information used against her opponent in a hotly contested campaign
five years ago, according to a complaint filed by the Office of
Lawyer Regulation. . . . In a statement released this week by her
lawyer, Kessler called the complaint meritless and politically
motivated. . . . "Because I have done nothing wrong, I previously
rejected an offer to resolve this with a private reprimand," Kessler
said. . . . In 2004, Kessler defeated incumbent Charles Schudson for
a seat on the1st District Court of Appeals in Milwaukee. . . .
Schudson complained that Kessler was behind a smear campaign in the
run-up to the election. Someone had filed a complaint with the
Judicial Commission alleging Schudson had violated an ethical tenet
that prohibits judges from using their positions to influence others
when he wrote a letter in support of a friend being sentenced in
federal court. Less than a month before the election, the complaint
was leaked to the Journal Sentinel.
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June 25-June 26, 2009
UNITED STATES
SUPREME COURT
Congressional Research Service on Sotomayor: Hard to
Categorize
Tony
Mauro, The National Law Journal
6-26-09 --
The nonpartisan Congressional Research Service has produced
a report on the opinions of Supreme Court nominee
Sonia Sotomayor, drawing conclusions that lend support to
her advocates' assertions that she is far from an extreme liberal. .
. . "As a group, the opinions belie easy categorization along any
ideological spectrum," states the report, which became available
online Thursday. "Perhaps the most consistent characteristic of
Judge Sotomayor's approach as an appellate judge has been an
adherence to the doctrine of stare decisis, i.e., the upholding of
past judicial precedents. Other characteristics appear to include
what many would describe as a careful application of particular
facts at issue in a case and a dislike for situations in which the
court might be seen as overstepping its judicial role." . . . In her
respect for precedent, the report adds, Sotomayor's approach "would
be in line with the judicial philosophy of Justice [David]Souter,"
the justice she is in line to replace. The report also says a common
characteristic of her opinions on the 2nd U.S. Circuit Court of
Appeals is "a meticulous evaluation of the particular facts at issue
in a case, which may inform whether past judicial precedents from
the circuit are applicable. Her approach to statutory interpretation
seems similarly nuanced." In a
story this week we also looked at her meticulous
opinion-writing style.
The Supreme Court nominee who can't write
By Carey
Roberts, Renew America
6-24-09 --
Supreme Court opinions are words for the generations that can affect
the lives and welfare of millions. No one doubts that Supreme Court
nominee Sonia Sotomayor has a compelling life story. But more to the
point, we need to inquire about her aptitude to draft
thoughtfully-reasoned, well-crafted legal opinions. . . . On this
count, there is reason for worry. . . . Sotomayor herself has
admitted, "Writing remains a challenge for me even today...I am not
a natural writer." Reporter Stephanie Mencimer has characterized
Sotomayor's legal opinions as "good punishment for law students who
show up late for class." . . . A cursory pass of Sotomayor's
writings reveals them to be clumsy to the point of being
impenetrable. This comes from her "wise Latina" speech: "I also hope
that by raising the question today of what difference having more
Latinos and Latinas on the bench will make will start your own
evaluation."
FEDERAL
COURTS
No Bail for Blogger Accused of Threatening Judges
David
Porter, The Associated Press, Law.com
6-26-09 --
A judge denied bail Thursday to a
New Jersey blogger charged with threatening to assault or murder
three Chicago-based federal judges. . . . U.S. Magistrate
Michael Shipp ordered
Harold "Hal" Turner transferred to Illinois to face the
charge, which carries a maximum prison sentence of 10 years. . . .
According to a federal complaint, the 47-year-old Turner threatened
three Chicago appellate judges who
refused to overturn handgun bans. . . . "These judges deserve to be
killed," Turner wrote on his blog,
www.turnerradionetwork.com, according to the complaint,
and he also provided a map showing the Chicago courthouse where the
judges are based and said a map showing their homes would be added.
Blogger Charged With Threatening to Kill Three
Federal Judges
Internet radio host's Web posting said Posner and two other 7th
Circuit judges 'deserve to be killed' for their ruling on handgun
laws
Lynne
Marek, The National Law Journal
6-25-09 --
A blogger and Internet radio host was arrested by the FBI in North
Bergen, N.J., on Wednesday after urging the killing of three
Chicago-based federal appellate judges who earlier this month
declined in a court ruling to overturn laws banning handguns in
Chicago and a nearby suburb. . . . The blogger, Hal Turner, in a
June 2 Web posting on the same day of the ruling, called the
decision an "outrage" and said that the judges "deserve to be
killed." The complaint charged him with threatening to assault and
murder the judges in retaliation for performing their official
duties. . . . In a second posting on June 3, Turner provided the
names, work addresses, phone numbers and photos of the three judges
on the 7th U.S. Circuit Court of Appeals in Chicago who were on the
panel that made the decision. Chief Judge Frank Easterbrook, Judge
Richard Posner and Judge William Bauer were the three judges named.
National Rifle Association v. City of Chicago (pdf),
nos. 08-4142, 08-4243 and 08-4244. Turner said the judges "ignored"
the Second Amendment's right to bear arms and disregarded U.S.
Supreme Court rulings. . . . "We take threats to federal judges very
seriously. Period," said U.S. Attorney
Patrick Fitzgerald in
a press release announcing the arrest of Turner and the criminal
complaint filed against him (pdf) in the Northern District
of Illinois.
N.Y. Federal Judge Delays Restitution Order in
Madoff Case
Larry
Neumeister, The Associated Press, Law.com
6-25-09 --
Financier Bernard Madoff will not be ordered to pay restitution at
his sentencing next week, a judge said Wednesday, citing the
complexity of the multibillion-dollar fraud. . . . U.S. District
Judge Denny Chin said in an order that the sentencing will proceed
as scheduled on Monday. . . . But he granted a request by
prosecutors to delay for three months deciding whether to order
restitution or to order victim compensation through forfeiture laws
and related regulations. . . . "I find that the number of victims,
the difficulties posed by the lack of proper record-keeping, and the
scope, complexity and duration of the fraud make it impossible, at
this stage, to determine whether restitution is practiceable," Chin
wrote.
3rd Circuit Mulls Pre-emption of Class Action Over
Snapple's Nutrition Claims
Shannon
P. Duffy, The Legal Intelligencer
6-25-09 --
A panel of the 3rd U.S. Circuit Court of Appeals appears likely to
revive a consumer fraud suit that accuses the popular
Snapple line of beverages of misleading the public by
proclaiming it was "All Natural" even though it was sweetened with
high-fructose corn syrup, or HFCS -- an ingredient the plaintiffs'
lawyers have labeled "synthesized" and "unnatural." . . . In a
series of pointed questions from all three judges during a lively
hour-long argument Wednesday at the Newark, N.J., federal
courthouse, there seemed to be strong hints that the case would
become part of a recent trend in the courts to allow such consumer
or products liability suits -- and to reject the arguments of
manufacturers who contend that the private suits risk havoc by
conflicting with or frustrating federal regulations. . . . A lower
court judge had tossed the Snapple case in June 2007, concluding
that such state-law consumer claims were pre-empted by the Food and
Drug Administration's labeling regulations.
Home Depot Product Liability Suits Advance
Federal judge rules plaintiffs can't seek damages under federal
Consumer Product Safety Act
R. Robin
McDonald, Fulton County Daily Report
6-25-09 --
A federal judge in Atlanta is permitting dozens of product liability
suits against Home Depot and the makers of a tile grout cleaner to
proceed to trial on negligence claims, but he has stripped away
other claims that sought damages for violating federal consumer
product safety laws. . . . Ten of those suits,
filed by an Atlanta attorney on behalf of Home Depot customers
who were hospitalized after using Tile Perfect Stand 'N Seal
Spray-On Grout Cleaner, are among approximately 50 suits that have
settled, according to a Home Depot attorney. The settlements are
confidential, said Frank A. Ilardi of Houck, Ilardi & Regas, who
shared lead counsel duties with Texas attorney William J. Maiberger
Jr. until Ilardi negotiated the settlements.
Virginia Abortion Restriction Is Upheld
U.S. Appeals Court Votes 6-5 to Back 'Partial Birth' Ban
By Josh
White, Washington Post Staff Writer
6-25-09 --
A sharply divided federal appeals court ruled constitutional
yesterday a Virginia law banning "partial birth" abortion that was
overturned four years ago, bringing the state in line with a federal
ban on the controversial procedure. . . . A three-judge panel of the
U.S. Court of Appeals for the 4th Circuit overturned the Virginia
law in 2005 by a 2 to 1 vote, finding that it did not allow for
exceptions to safeguard a woman's health. The Supreme Court ordered
the appeals judges to revisit the issue when it upheld the Partial
Birth Abortion Ban Act two years ago, a law passed by Congress in
2003 that is similar to Virginia's ban. . . . Although the Virginia
law permits women to choose various abortion procedures, it
specifically makes it a crime for doctors to perform a rare midterm
abortion that involves partially delivering the fetus before
crushing its skull to ease removal. . . . William G. Fitzhugh, a
Richmond doctor who challenged the law, argued that the procedure
can be necessary to protect the life of a patient and that banning
it could prevent doctors from performing legal procedures out of a
fear of prosecution. Opponents of the procedure liken it to
infanticide.
ALABAMA
Court: no settling in case of Hale judge
By Dana
Beyerle Montgomery Bureau Chief
6-25-09 --
The Court of the Judiciary has rejected a proposed settlement of
ethics charges against Hale County Circuit Judge Marvin Wiggins. . .
. A joint motion to resolve the charges failed to earn the approval
of at least six of the nine court members as required by the court's
rules, according to an order filed Wednesday. . . . A May 4
complaint filed with the court by the Judicial Inquiry Commission
alleges that Wiggins violated seven of the Alabama Canons of
Judicial Ethics in handling a voter fraud investigation involving
three of his relatives. . . . The court on May 27 issued a delay of
the requirement that Wiggins respond to the charges within 30 days,
pending a joint motion to settle the case. The court lifted the
delay Wednesday and gave Wiggins 10 days to respond to the ethics
charges.
CALIFORNIA
Calif. Trial Courts May Get $41 Million IOU
Cheryl
Miller, The Recorder
6-25-09 --
California's judicial branch could receive a $41 million IOU from
the state next week if lawmakers don't close a $24 billion budget
deficit within days, Controller John Chiang said Wednesday. . . .
"Next Wednesday we start a fiscal year with a massively unbalanced
spending plan and a cash shortfall not seen since the Great
Depression," Chiang said in a prepared statement. . . . Without
enough cash on hand, the state will start withholding $3.36 billion
in payments as soon as next Thursday for student aid, assistance to
the poor and disabled, mental health services and trial court
operations, Chiang said. . . . The controller's office was quick to
add that judges and state employees, including those working in
California's courts, will continue to be paid as required by state
law. But payments for court operations will be held, Chiang
spokeswoman Hallye Jordan confirmed, although neither she nor
judicial executives could immediately say what programs or services
would be affected.
GEORGIA
Hustler could appeal ruling on nude photos of Benoit’s wife
By Megan
Matteucci, The Atlanta Journal-Constitution
6-25-09 --
Hustler Magazine had no right to publish nude photographs of Chris
Benoit’s deceased wife, a federal appeals court ruled Thursday. . .
. The family of the late Nancy Benoit filed a federal suit against
Larry Flynt Publishing Group last year after Hustler published nude
photographs of the professional wrestler’s wife. . . . “When this
came out, it was like she had been murdered all over again. It was
just horrible,” said Richard Decker, the family’s lawyer. “These
photographs would have never made it to Hustler because they just
weren’t raunchy enough without the notoriety.” . . . The magazine
featured front nudity of Benoit, along with other suggestive poses,
Decker said. . . . A spokesman for Hustler said Thursday he had not
seen the suit and could not comment. . . . Nancy Benoit, of Fayette
County, posed nude for still photographs and a video in 1983. At the
time, she was an aspiring model and not married to the wrestler,
according to the lawsuit.
ILLINOIS
Justices: 'No reasonable person' could adopt Bailey's ruling
in Buske case
By Steve
Korris, St. Clair Record
6-25-09 --
Madison County Associate Judge Duane Bailey unreasonably prevented
household product maker S.C. Johnson from pursuing a Wisconsin
judgment in Wisconsin, Fifth District appeals judges ruled on June
18. . . . "Because the trial court's ruling had no basis in the
pleadings and the facts of this case, no reasonable person could
adopt the view taken by the trial court in this case," Justice
Stephen Spomer wrote. . . . S.C. Johnson seeks to block a pending
divorce between trucking company owner Thomas Buske and wife Sara
Buske, calling it a sham. . . . S.C. Johnson alleges that the
divorce would keep it from collecting a judgment it won against
Thomas Buske in Racine, Wisc., the company's home. . . . In December
Bailey enjoined S.C. Johnson from collecting the Wisconsin judgment.
Civil justice group criticizes ruling on judges'
mandatory retirement age
By Chris
Rizo Legal Newsline
6-24-09 --
The Illinois Supreme Court's recent ruling against a mandatory state
law barring judges from running for retention after age 75 has drawn
criticism from the state's leading civil justice group. . . . The
Illinois high court last week ruled in favor of Cook County William
Maddux, 74, who argued that state law should not keep him from
running for retention after he turns 75. . . . Maddux is the
presiding judge of the law division of Cook County Circuit Court.
His current judicial term expires in fall 2010. . . . The state's
Compulsory Retirement of Judges Act says that a jurist is
"automatically retired at the expiration of the term in which the
judge attains the age of 75." . . . The law would have allowed
Maddux to run in a contested election in which his name would appear
in a long list of judicial aspirants. . . . The state Supreme Court
ruled that the law discriminates against judges who turned 75 on the
bench because they would be barred from seeking election because
person who was never a judge and was older than 75 could run.
INDIANA
Ethics panel admonishes Walkerton town court judge
By Jeff
Parrott ,WSBT-TV Tribune Staff Writer
6-24-09 --
The Indiana Commission on Judicial Qualifications has publicly
admonished Walkerton’s town court judge for employing his wife as
clerk and effectively acting as both judge and prosecutor in a
traffic violations case. . . . The commission determined that Judge
Roger L. Huizenga violated judicial rules by employing his wife as
clerk from 1995 through 2009. In 1998, the commission issued an
advisory opinion stating that a judge should avoid “nepotism and
favoritism,” and that “employment or appointment of a spouse likely
will never be appropriate.” . . . Once the opinion was issued,
Huizenga failed to contact the commission and ask about the
propriety of his wife’s continued employment with the court, the
commission concluded. . . . She resigned once she became aware of
the commission’s investigation. . . . Huizenga also violated
judicial rules when he discussed how to resolve misdemeanor traffic
infractions against a woman who had approached him about receiving
tickets for speeding and having an expired license plate. The judge
told her she would have to pay the ticket but could have the license
plate ticket dismissed if she paid to have it renewed within 30
days. . . . When she later failed to renew her license plate, her
license was suspended.
KENTUCKY
Central Ky. family court judge faces misconduct charges
By
Shawntaye Hopkins - Kentucky.com
6-26-09 --
The state's Judicial Conduct Commission has charged a family court
judge with misconduct in relation to three incidents in Scott and
Woodford counties. . . . Family Court Judge Tamra Gormley, who was
appointed in 2007 to a district that covers Scott, Woodford and
Bourbon counties, is scheduled to appear in Fayette Circuit Court
for a hearing at 9 a.m. Sept. 28. . . . The three sets of charges
could result in separate or collective penalties including public or
private reprimand, suspension without pay or removal or retirement
from judicial office, according to documents obtained from the
Judicial Conduct Commission. The commission, which investigates and
reviews complaints against judges, is the only entity authorized to
discipline a sitting Kentucky judge, according to state law.
MISSISSIPPI
Feds want to block judge from saying rulings legal
Associated Press Picayune Item
6-25-09 --
Mississippi Judge Bobby DeLaughter, facing federal corruption
charges, has said his rulings followed the letter of the law.
Federal prosecutors don’t want a jury to hear that when his trial
begins in August. . . . He is accused of giving an unfair advantage
to once-powerful attorney Richard “Dickie” Scruggs in a lawsuit
between Scruggs and another attorney over millions of dollars in
legal fees from asbestos litigation. . . . Prosecutors asked a judge
in a pretrial motion filed Monday to block DeLaughter from giving
any testimony that his rulings followed the law, claiming it would
take weeks during the trial. . . . “Because it would ‘convey no
useful information,’ the government respectfully suggests that such
evidence would be both irrelevant and immaterial and should
therefore be excluded,” the motion said. . . . DeLaughter’s
attorney, Thomas Anthony Durkin of Chicago, said if the government’s
own witnesses in the case are honest, “we are quite confident that
they will admit that all of Judge DeLaughter’s rulings followed both
the letter and spirit of the law.”
Diaz countersues ex-U.S. attorney
Former state justice alleges charges brought against him were
libelous
Jimmie
E. Gates • clarionledger.com
6-24-09 --
Former Mississippi Justice Oliver Diaz Jr. and former U.S. Attorney
Dunn Lampton could face off in a federal courtroom again. . . . But
this time, it would be a civil case. . . . Diaz and Jennifer Diaz
have filed a counter federal lawsuit against Lampton accusing him of
bringing libelous charges against the then-justice to try to get him
removed from office. . . . Lampton, who retired earlier this year as
U.S. attorney for the Southern District of Mississippi, called the
lawsuit baseless in court papers filed by his attorney, Dennis Horn.
. . . The legal complaint, unsealed this week in federal court in
Jackson, alleges Lampton illegally obtained income tax and bank
records of Jennifer Diaz, invaded her privacy and abused the process
by conspiring with a member and a staffer of the state's judicial
watchdog group, the Mississippi Commission on Judicial Performance,
in an effort to have Diaz removed from office. . . . The lawsuit
says the private records of Jennifer Diaz, who was the judge's
ex-wife at the time, were used to bring false charges against Oliver
Diaz before the Commission on Judicial Performance.
NEW JERSEY
Initial Talks Created Attorney-Client Relationship, Court Rules
A
lawyer's discussions with a potential client are found to bar his
firm's representation of an existing one
Mary Pat
Gallagher, New Jersey Law Journal
6-26-09 --
Construction lawyer Robert Peckar has good cause to regret his talks
with architect Scott Keller in 2005 about a possible suit against
William Paterson University over
the renovation of its student center. . . . A New Jersey appeals
court ruled Wednesday that an implied attorney-client relationship
resulted, disqualifying Peckar and his firm, Peckar & Abramson, from
representing an existing client that became embroiled in the ensuing
litigation. . . . No retainer agreement was signed, no file opened
and no fees billed, but "these formalized trappings of retention are
not dispositive as to whether an implied attorney-client
relationship was formed," a three-judge panel wrote per curiam in
Gruzen Samton v. William Paterson University , A-1922-08.
PENNSYLVANIA
Panel: Philly judge guilty of theft of services
The
Associated Press, Philadelphia Inquirer
6-26-09 --
A state disciplinary panel says a Philadelphia judge ran a real
estate business out of his court office for more than a decade, with
taxpayers footing the bill. . . . The Court of Judicial Discipline
ruled on Wednesday that Common Pleas Judge Willis Berry Jr.
committed theft of services and put the judiciary in "disrepute." .
. . According to the panel, Berry operated a string of North
Philadelphia apartments "with absolutely no overhead" by using court
computers, equipment and supplies, and the labor of his secretary.
TEXAS
Federal Jury Awards $5M to Texas Man Convicted on Bad Crime Lab
Evidence
By
Martha Neil, ABA Journal
6-25-09 --
After wrestling with the concept of deliberate indifference, a
federal jury in Texas today awarded $5 million to a man wrongfully
convicted in a kidnapping and rape case more than two decades ago. .
. . George Rodriguez, 59, was incarcerated for 17 years, based on
false testimony by an employee of the troubled Houston Police
Department crime lab, before DNA evidence exonerated him, reports the
Houston Chronicle. . . . Although satisfied with the
verdict, Rodriguez tells the newspaper: "No money could replace what
I have lost." . . . After deliberating for about six hours, the
five-woman, three-man jury sent U.S. District Judge Vanessa Gilmore
a note yesterday. It said they couldn't decide whether police chief
Lee Brown was deliberately indifferent to a lack of training and
supervision at the lab and the consequent possibility that a
suspect's constitutional right to a fair trial would be violated,
the newspaper reported in
another article. . . . It isn't clear how the jury got
past this impasse.
Eyes
on the Judiciary
