Gavel Grab

Archive for April, 2011

Impartiality of Prop 8 Judge is Attacked

The gay federal judge who struck down California’s Proposition 8 ban on same-sex marriages should have recused himself, and because he didn’t, the ruling should be thrown out, Prop 8 backers have told a district court.

The ruling by now-retired federal Judge Vaughn Walker (photo) was targeted by attorneys for a group called ProtectMarriage, according to a Los Angeles Times article.

“Judge Walker’s ten-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires,” said Andy Pugno, one of the lawyers. “He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case. These circumstances demand setting aside his decision.”

Earlier this month, Walker told reporters he never considered stepping aside from the case because he is gay (see Gavel Grab). “I don’t think it’s relevant,” he said.

Erwin Chemerinsky, law school dean at the University of California at Irvine, was dismissive of the merits of the legal challenge.  “This is an offensive personal attack on Vaughn Walker,” Chemerinsky said.

Walker recently disclosed that he is gay, and he said he’s been in a decade-long relationship with a man, Bloomberg reported.

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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The Des Moines (Iowa) Register, in an article reporting the apparent demise of resolutions to impeach four state Supreme Court justices, quoted Bert Brandenburg, executive director of Justice at Stake.  “Impeachments of judges are not a tool for resolving political disagreements,” he said. “Iowa’s renegade legislators need to check their civics textbooks. Impartial courts are what make this country a model for democracy and business around the world.”
  • “Deadly Justice: How can judges decide when threats against judges are protected by the First Amendment?” asked a headline for a Slate commentary by Dahlia Lithwick.
  • The Republican primary contest for Miamisburg Municipal Court judge is typically sedate. Not this year, though; it “has turned hard-nosed, with allegations of threats and campaign code violations,” according to a Dayton Daily News article.
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Documents 'Lay Bare' Gitmo Inner Workings

A deluge of more than 700 classified military documents has hit certain news media outlets, providing new details about Guantanamo Bay and the detainees once or currently held there.

An opening New York Times article sums up what can be learned from the documents:

“What began as a jury-rigged experiment after the 2001 terrorist attacks now seems like an enduring American institution, and the leaked files show why, by laying bare the patchwork and contradictory evidence that in many cases would never have stood up in criminal court or a military tribunal.”

An article in the Guardian says the documents “lay bare the inner workings of America’s controversial prison camp in Cuba” and “depict a system often focused less on containing dangerous terrorists or enemy fighters, than on extracting intelligence. Among inmates who proved harmless were an 89-year-old Afghan villager, suffering from senile dementia, and a 14-year-old boy who had been an innocent kidnap victim.”

At NPR, an article was entitled, “Detainees Transferred or Freed Despite ‘High Risk.’”

An unusually long and detailed article in the Washington Post, meanwhile, is headlined, “Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility.”

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'Crisis' in a Federal Court for Veterans

At the little-known U.S. Court of Appeals for Veterans Claims in Washington, D.C., the judges are working night and day and still say they can’t keep up with the staggering workload.

The court handles appeals of disability claims that were turned down by the Department of Veterans Affairs. Its caseload has soared by more than double in recent years, to the point that the court is deciding more than 600 cases per judge per year. It can take several years for a veteran to await a ruling, and one legendary case took seven years in the appeals court.

An in-depth Washington Post article about the court is entitled, “‘Veterans court’ faces a backlog that continues to grow.” It notes that three judgeships on the nine-member court are vacant, and some veterans’ advocates lay part of the blame on the Obama administration.

“The crisis at the court is likely to get worse, lawyers and judges say,” according to the article, given high claims rates for veterans who were injured in Iraq and Afghanistan.

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Nominating Panel Revision Advances in FL

Florida’s Senate Judiciary Committee passed Monday a judicial selection reform bill that would remove the Florida Bar from involvement with judicial nominating commissions.

The state House had passed earlier its version of the bill. In the Senate, the measure would take away the Florida Bar’s role in recommending to the governor names for appointment to four seats on judicial nominating commissions. Florida’s attorney general would take over that role.

State Sen. Anitere Flores, a Republican, presented the bill and acknowledged “grave reservations” about it but urged that it be kept alive legislatively as a courtesy to House Speaker Dean Cannon, a fellow Republican, according to a St. Petersburg Times article. Its headlined stated, “Senate committee passes court reform bill, but they don’t like it.”

Republican Sen. David Simmons portrayed the Florida Bar as providing an “even hand” in judicial selection; Simmons also voted for the measure.

The House-passed version would shrink the commissions to seven members from nine. It would allow Florida’s governor to appoint all of the members to terms running concurrently with the term of the governor. Read more

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Value of WI Public Financing Debated

The crossfire of TV attacks funded by third-party groups in the recent Wisconsin Supreme Court election overshadowed the fact that both candidates received public financing under a new state statute.

With the election moving into a recount phase, enough time has passed after the April 5 election that some analysts and activists are assessing the impact of the public financing system.

Opposing views came in recent commentaries published by The La Crosse Tribune. Keith Knutson, a history professor in La Crosse, wrote a commentary entitled, “Let’s build on values of public financing plan.” Sean Parnell, of the Center for Competitive Politics,” was author for a column headlined, “Welfare for candidates doesn’t help the process.

“I suggest we compare ourselves with other advanced democracies around the world, all of which implement restrictions on campaign spending,” Knutson wrote. He added, “A level playing field for all voices in an election campaign must be the foundation for legitimacy in a democratic election process.”

Parnell, on the other hand, asserted that furnishing taxpayer funds to election candidates “has been an abysmal failure wherever it has been tried. “Wisconsin’s experience … shows the folly of these programs,” he added in urging the abandonment of public financing in the state.

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Editorial: Safeguarding Courts With Recusal Reform

Why is there a need for reform of judicial recusal rules in Illinois? A Chicago Sun-Times editorial makes a compelling argument, framed in terms of both principle and pragmatic politics.

The editorial first identifies the problem at hand in Illinois and other states where judges are elected:

“Good lawyers know the law.

“Better lawyers know the judge.

“Great lawyers know whose campaign contributions put the judge on the bench.”

Therefore, the editorial asks, “How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?” It’s a worsening problem in Illinois, where more than $3 million was pumped into the retention campaign of a state Supreme Court justice last year (see Gavel Grab), the editorial says.

Seven years ago, $9.3 million was spent on a competitive Illinois Supreme Court race. The winner, Justice Lloyd Karmeier, issued a ruling that benefited one of his largest campaign contributors. He “may well have felt his legal reasoning was sound, but the perception of justice for sale is unavoidable,” the editorial laments. Read more

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Supreme Court Won't Expedite Health Care Review

The Supreme Court turned down Monday a request from Virginia’s attorney general to skirt lower courts and expedite its review of a challenge to the constitutionality of the new federal health care reform.

Its action likely means that the high could would not rule until at least next year on the health care law, according to a Los Angeles Times article.

On May 10, the Fourth U.S. Circuit Court of Appeals is scheduled to hear an appeal by the Obama administration of a ruling by a federal trial judge. He found unconstitutional a part of the law that orders most people to get health insurance by 2014 or pay a fine (see Gavel Grab). Virginia Attorney General Kenneth Cuccinelli said the case was of “imperative national importance” and asked the Supreme Court to consider the law before the appeals court acted.

The Supreme Court’s order Monday did not include reasoning, notation of any dissents or of any justices stepping aside from participation. It appears Justice Elena Kagan, the former U.S. solicitor general, will participate in hearing the case, given the order, the New York Times reported.

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IA Court: 'Impeachment … not Appropriate'

The Iowa Supreme Court said in a public statement that “impeachment is not appropriate.” The statement was issued following the filing of resolutions in the legislature to impeach four justices.

As Gavel Grab mentioned earlier, House Speaker Kraig Paulsen said he disagreed with the impeachment approach, and House Judiciary Chairman Rich Anderson said he did not think the critics’ stated reason for impeachment — the court’s allegedly overstepping its authority in permitting same-sex marriage — met the legal standard set in the state Constitution.

A statement by the high court Friday responded to their remarks, according to a Des Moines Register article:

“We agree with Speaker Paulsen and Representative Anderson that impeachment is not appropriate. Deciding a question in a lawsuit about whether a law violates a provision of the constitution is a fundamental role of courts in our system of government. Both state and federal courts have exercised this responsibility in countless cases, many of them controversial, for over 200 years.”

Frank Carroll, president of the Iowa State Bar Association, said the impeachment bid represented “an unprecedented, unwarranted and unwise attack on the judicial branch and the four justices named in the impeachment resolutions.”

In November, voters dumped three justices who had participated in the unanimous 2009 ruling and whose names appeared on a retention ballot. The impeachment resolutions submitted this week targeted the remaining four justices. Speaker Paulsen’s remarks were seen as effectively killing the effort, at least in this year’s session.

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • O.H. Eaton Jr., a retired circuit judge in Seminole County, excoriated a proposed Florida Supreme Court overhaul in an Orlando Sentinel commentary. “House Speaker Dean Cannon is not fooling anyone with his politically motivated bill which is designed to cripple the independence of the judicial branch of government in the State of Florida,” Eaton wrote.
  • “Improve Supreme Court elections, don’t replace them,” declared the headline for a Madison.com commentary by Andrea Kaminski, executive director of the League of Women Voters of Wisconsin.
  • Chief Justice Maureen O’Connor of the Ohio Supreme Court expanded in an Akron speech on proposals she has made to modify judicial elections in the state, according to an Akron Beacon Journal article. She floated her proposal during her campaign last year (see Gavel Grab).
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