Gavel Grab

In these other dispatches about fair and impartial courts:

• A Washington Post article reported on a recent break-in at the home of Supreme Court Justice Stephen Breyer in Washington, D.C.’s Georgetown neighborhood. Stolen were a pair of $500 silver candlesticks and a 100-piece set of silver valued at $2,500.
• “Appeals court upholds Florida’s ‘electioneering’ law,” an Orlando Sentinel article reported, and “Judge strikes down Montana clean-campaign laws, ban on some donations,” a  (Montana) Missoulian headline declared.

“Access to justice” is a rather amorphous phrase, but an editorial in The (Portland) Oregonian gives one of the best explanations Gavel Grab has seen recently:

“You’re in a child-custody dispute with your ex. 

“You need a restraining order. 

“You discover an employee may have stolen from you. 

“Your property gets trashed by a renter.

“If the courts can’t help you in a timely manner, the consequences to individuals and businesses can be severe.”

The editorial cites these examples in urging legislators to make court funding a high priority at an emergency board’s meeting next week, especially given court funding cuts that are “jeopardizing citizens’ right to justice without undue delay.”

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Tags: Oregon

“It’s a hot mess,” Rick Esenberg, an adjunct professor of law at Marquette University Law School, says about the ethics complaint accusing a Wisconsin Supreme Court justice of putting another justice in a chokehold, and the handling of that complaint.

The only participants and witnesses to the event in which Justice David Prosser stands accused are Wisconsin Supreme Court justices, and yet that Supreme Court is the only body that can impose discipline on a judge, writes Esenberg in a Milwaukee Journal Sentinel online commentary. But generally speaking, a judge isn’t permitted to sit on a case in which he’s a material witness.

“Let’s begin by explaining the essential problem,” Esenberg starts. “It is not clear that the case can go forward. In fact, it is not certain that it can even begin.” Then he launches into discussion of state law, the Judicial Code of Ethics, and “something called the rule of necessity.”

Esenberg’s post is entitled, “Exploring the Prosser case: part one.” It’s going to take Esenberg several installments to attempt to untangle this one, and Gavel Grab will simply invite interested readers to follow his commentary. For background, see these earlier Gavel Grab posts.

Tags: Wisconsin

The Senate is expected to vote  Monday on whether to limit debate and move to an up-or-down vote on President Obama’s nomination of Los Angeles lawyer Paul Watford to the U.S. Court of Appeals for the Ninth Circuit.

Senate Majority Leader Harry Reid set the Monday vote, according to an article in The Hill. Watford (photo), a former federal prosecutor, would become the second African American judge on the Ninth Circuit if confirmed; it is the largest appeals court in the country.

Watford’s nomination was approved earlier by the Senate Judiciary Committee on a 10-6 party line vote, according to the American Constitution Society blog. After he was nominated last year he received high praise from bipartisan backers. They included the former president of the Los Angeles Lawyers Chapter of the Federalist Society, from conservative blogger Eugene Volokh and from a colleague who was a lawyer for both Bush administrations in Washington.

However, the Judiciary Committee vote seemed to signal an “about-face” from the bipartisan report Watford had received earlier, the ACS blog said. Sen. Charles Grassley, the panel’s senior Republican, urged a “no” vote in committee and raised “substantive concerns” about the lawyer’s work on immigration and death penalty cases.

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A (Fort Lauderdale) Sun-Sentinel editorial decries as “disturbing” the notion that critics are seeking to oust three state Supreme Court justices in retaliation for a controversial ruling, or rulings.

Three Florida justices are seeking in November retention (up-or-down) elections to win another term on the high court. They’ve been targeted for ouster by a group called Restore Justice 2012. It has criticized a court ruling that removed from the ballot in 2010 a legislatively introduced measure intended to derail federal health care legislation. The Sun-Sentinel editorializes:

“[B]ouncing the three justices from the high court as payback for that ruling or others would be an abuse of the retention process. Worse, it could make others still on the bench wary or even unwilling to issue controversial or unpopular rulings for fear of losing their jobs.

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Tags: Florida

Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed are facing charges before a military commission system that is improved, but that “simply doesn’t afford the defendants the gold standard of American justice,” a Los Angeles Times editorial said.

The editorial was entitled “Justice and the 9/11 defendants: A military tribunal is not the best way to demonstrate America’s commitment to the rule of law.”

The revised military commission system, improved over that established by the George W. Bush administration, remain less protective of defendants than does a civilian trial, the editorial said. In addition, the commission system falls under the aegis of the same military that locked up the defendants and held them for almost a decade.

“[B]oth substantively and symbolically, it is an unacceptable alternative to a civilian trial of the kind that has successfully convicted other terrorists,” the editorial added. It placed blame on both Congress for blocking earlier plans for a civilian trial and the Obama administration for important errors in handling the matter.

Earlier this month, the defendants were arraigned at a proceeding before the military commission at Guantanamo Bay, Cuba (see Gavel Grab).

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.

BULLETIN: The Pennsylvania Supreme Court suspended Justice Joan Orie Melvin on Friday, according to a Law.com article.

Justice Joan Orie Melvin of the Pennsylvania Supreme Court was charged Friday with nine criminal charges after a grand jury investigation into allegations she used state-paid staff for campaign work. Her lawyer said in a letter that the judge was “voluntarily recusing herself from all judicial duties pending resolution of the criminal charges.”

William I. Arbuckle II, a lawyer representing Melvin, said in the letter submitted to the state Supreme Court’s chief justice, “The justice denies any criminal wrongdoing and will vigorously defend these politically motivated criminal charges.”

A Pittsburgh Tribune-Review article said Allegheny County District Attorney Stephen A. Zappala Jr. brought the charges, including four felonies. The charges, the newspaper said, include three counts of theft of services, two counts of conspiracy, one count of solicitation to tamper with or fabricate evidence, two counts of official oppression and one count of misapplication of property.

Her lawyer’s letter said Justice Melvin was recusing herself “In order to avoid the appearance of impropriety and in accordance with precedent,” according to a Pittsburgh Post-Gazette article.

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Tags: Pennsylvania

When Democratic judicial candidate Diane Henson was campaigning in Texas several years ago, she told an audience that if elected, she would sit on the court  that would “hear the appeal of Tom DeLay, if by chance he was convicted.”

Now an appellate lawyer for the convicted former U.S. House Majority Leader wants Judge Henson to step aside from hearing DeLay’s appeal. And the episode, writes commentator Patricia Kilday Hart in the Houston Chronicle, illustrates a big problem with systems for electing judges:

“DeLay’s case serves as an important reminder of why electing judges – especially with partisan labels – distorts Texas justice. Before being sent to The Slammer, even The Hammer deserves an impartial hearing.

“But is that possible for a high-profile politician like DeLay, when our judges have had to campaign through political parties to get their jobs? It’s not just Henson who has a potential conflict; three of the Republicans on the Third Court of Appeals have recused themselves from the case.”

Hart mentions that reformers have pushed to change Texas’ system for electing judges but she doesn’t see such change on the political horizon.

Tags: Texas

With a new public financing system in place for New York City local elections, the number and diversity of city’s residents who gave to local candidates increased dramatically, a new report says.

“[A]vailable evidence … suggests that New York City’s public financing system plays a significant role in bringing about the striking results we found,” said the report by the Campaign Finance Institute and the Brennan Center for Justice.

New York State is considering a system of public campaign financing for state elections similar to New York City’s small donor matching fund program, based in part on the assumption that it would bring greater fairness and diversity to state elections (see Gavel Grab). The Brennan Center is a JAS partner group.

Tags: New York