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Scholar: Wisconsin Judge’s Response to Ethics Case a Stretch

Wisconsin Justice David Prosser, accused of breaching the state’s judicial ethics code, recently contended that a state disciplinary commission’s investigation was itself a violation of his constitutional rights (see Gavel Grab). To an expert on judicial conduct and ethics, Justice Prosser’s approach is a stretch.

“This is the first I’ve seen where [judicial] conduct on the job is above scrutiny,” Charles Geyh (photo), a law professor at Indiana University, told the (Madison) Capital Times. “If I were Justice Prosser, what I would do is accept a reprimand and indicate that it won’t happen again and step up and say we need to move on as a court.”

Justice Prosser stands accused of violating the code of judicial ethics when he allegedly put Justice Ann Walsh Bradley in a chokehold during an argument, and separately, of telling Chief Justice Shirley Abrahamson, “You are a total bitch.”

The problems at the sharply divided Wisconsin Supreme Court have drawn attention near and far. “It’s embarrassing in the state, and it’s embarrassing in the nation,” Geyh said. He added, “What strikes me, and I think strikes the larger community, that is so unusual about Wisconsin is the bare-knuckled, naked political overtones of not just their decision-making, but of their interrelationships.”

 

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Ohio Primary Settles Ballot for November Court Election

William O’Neill, a former judge on Ohio’s 11th District Court of Appeals, won a Democratic primary to challenge incumbent state Supreme Court Justice Robert Cupp in the fall.

O’Neill defeated Hamilton County Municipal Judge Fanon Rucker, according to an Associated Press report. Judge Rucker, whose father is an Indiana Supreme Court justice, had the endorsement of the Ohio Democratic Party.

O’Neill ran for the high court unsuccessfully two times in the past. The primary contest that concluded on Tuesday was contentious; a Hamilton County judicial panel, following an election complaint, said O’Neill had implied to voters he still sat on the bench, and he had violated the judicial code of conduct. O’Neill said he would change statements made on his website.

Ohio has had some of the nation’s most expensive judicial elections. It ranked second for total spending, at more than $29 million, in the decade between 2000 and 2009, according to a report co-authored by Justice at Stake on soaring judicial election spending during that decade.

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • A Luzerne County, Pa. judge said his passionate public speech against the closure of his alma mater high school did not violate the state Code of Judicial Conduct’s ban on partisan activities, according to a Wilkes-Barre (Pa.) Citizens’ Voice article. A JAS partner group, Pennyslvanians for Modern Courts, said his actions raised “red flags.”
  • The Supreme Court’s final decision about the constitutionality of President Obama’s health care law may rely on the ability of Obama’s legal team to enlist support from Justice Antonin Scalia, an unlikely ally, according to an analysis by Bloomberg.
  • The (Jeffersonville, In.) Evening News and Tribune has an article saying Gov. Mitch Daniels may get his second opportunity in less than a year to appoint a female judge to Indiana’s all-male state Supreme Court.
  • Democratic U.S. Sen. Joe Manchin of West Virginia criticized before a home-state audience the Senate’s stall in voting on the nomination of Judge Gina Groh for a federal district court judgeship, according to a West Virginia Record article.

 

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Judge Accepted, Disclosed, Millions in Donated Legal Assistance

A prominent federal appeals court judge, who beat back allegations that he acted unethically in President Bush’s Justice Department, accepted more than $3.2 million in free legal services from a firm that now practices before his court.

Ninth U.S. Circuit Court of Appeals Judge Jay S. Bybee has stepped aside from participating in most cases where attorneys from the Los Angeles-based firm, Latham & Watkins, represented parties in a case, a Los Angeles Times article said. The value of the legal services provided Judge Bybee surfaced in his financial disclosure reports and first was made public by The National Law Journal.

Bybee is one of two former Bush administration lawyers who had  a role in drafting the legal policies that permitted harsh interrogation of terror detainees. The Justice Department issued a report last year (see Gavel Grab) concluding the two lawyers had “exercised poor judgment,” but it did not go so far as to find they had engaged in “professional misconduct” and should be disciplined.

Latham & Watkins’ Maureen Mahoney, who helped defend Bybee’s work on the so-called “torture memos,” told National Law Journal that “Judge Bybee has advised us that he will continue to recuse himself from Latham matters for some time.” Read more

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NM Judge Indicted on Felony Counts

Third Judicial District Judge Mike Murphy of New Mexico was indicted on four felony counts including bribery, and a special prosecutor’s report said he gave $4,000 to win appointment to the bench by then-Gov. Bill Richardson, NMPolitics.net reported.

Judge Lisa Schultz initially tried to halt what she viewed as a pay-to-play scheme by working within the judicial system, but later reported on the situation to a prosecutor. Judge Murphy has maintained his innocence.

In Indiana, meanwhile, Hamilton Superior Court Judge William J. Hughes was charged with judicial misconduct in a case arising from a drunken driving arrest out of state, the Associated Press reported.

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High Court Leaves Limits on Judicial Speech Intact

The Supreme Court declined on Monday two requests to appeal limits on campaign speech for judicial candidates. The cases came from Wisconsin and Indiana.

Scholar Rick Hasen wrote in his Election Law blog about the high court’s action:

“The Supreme Court’s decision not to hear these cases has no precedential value. However, the Court’s decision to decline to hear them, especially given the strong First Amendment jurisprudence of this Court, will no doubt lead those supporting special judicial campaign rules in judicial elections a reason to breathe a sigh of relief.”

In Siefert v. Alexander, an appeals panel ruled that Wisconsin judicial candidates may not endorse partisan candidates for office or directly solicit campaign cash (see Gavel Grab for background). The ruling allowed judges to declare party allegiances, according to a Wisconsin State Bar article.

In Bauer v. Shepard, Indiana Right to Life Inc. unsuccessfully challenged an Indiana ethics rule effectively barring judges from telling their views about abortions (click here for Gavel Grab post.)

Chief Judge Frank Easterbrook of the Seventh Circuit had written in the Bauer case, “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function.” He added, “Preserving that confidence is a compelling interest.”

Indiana-based lawyer James Bopp, acting on behalf of some state judges, judicial candidates and an anti-abortion group, had petitioned the high court to review the decisions contained in Seventh U.S. Circuit Court of Appeals rulings.

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • In part because court staff reductions have increased judges’ workloads, the Florida Supreme Court has asked the legislature to approve 80 more trial judges, according to an Associated Press article. “The loss of staff translates into slower case processing times, crowded dockets, and long waits to access judicial calendars,” the justices wrote.
  • The U.S. Supreme Court may be poised to announce Tuesday whether it will hear an appeal in a judicial speech case from Indiana, Bauer v. Shepard, according to Election Law blog. In the case, Indiana Right to Life Inc. unsuccessfully challenged an Indiana ethics rule effectively barring judges from telling their views about abortions (click here for Gavel Grab post.)
  • The House of Representatives compromised from an earlier stance and approved a Senate-passed bill to extend for three months key provisions of the USA Patriot Act, the nation’s chief counterterrorism law, the Washington Post reported.

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High Court Asked to Weigh Limits on Judicial Speech

Limits on campaign speech for judicial candidates in Indiana and Wisconsin are the subject of an appeal request to the U.S. Supreme Court made by Indiana-based lawyer James Bopp.

Bopp, acting on behalf of some state judges, judicial candidates and an anti-abortion group, has petitioned the high court to review decisions in Seventh U.S. Circuit Court of Appeals rulings this year, according to a National Law Journal article.

In Siefert v. Alexander, an appeals panel ruled that Wisconsin judicial candidates may not endorse partisan candidates for office or directly solicit campaign cash (see Gavel Grab). In Bauer v. Shepard, Indiana Right to Life Inc. unsuccessfully challenged an Indiana ethics rule effectively barring judges from telling their views about abortions (click here for Gavel Grab post.)

Chief Judge Frank Easterbrook of the Seventh Circuit wrote in the Bauer case, “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function.” He added, “Preserving that confidence is a compelling interest.”

Judicial elections scholar James Sample of Hofstra University School of Law wrote about Judge Easterbrook’s views, “I think his opinion is some indication folks like Mr. Bopp represent the ideological extreme position at odds with a majority of Americans on the left and right alike.” Read more

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IN Judicial Ethics Rule Survives Challenge

A federal appeals court has rejected a second attempt by an anti-abortion group to challenge an Indiana ethics rule barring judges from telling their views about abortions.

The Seventh U.S. Circuit Court of Appeals said the challenge brought by Indiana Right to Life Inc. was not legally ripe, according to a National Law Journal article, and affirmed a lower court ruling that upheld Indiana’s Code of Judicial Conduct.

The appeals court did not decide the issue of whether Indiana’s rule conflicts with a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White.

In that case, the Supreme Court struck down an ethics rule that barred judicial candidates from stating their views “on disputed legal or political issues.” The ruling dramatically accelerated the politicization of judicial elections.

To learn more about that decision and its implications, check out Justice at Stake’s issues page on judicial speech.

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Wednesday Media Summary

JUSTICE AT STAKE

Judges On Merit: Press conference to bring support from three branches, both sides of the aisle
Susan – 6/8/2010

Indianapolis Star: Who should pick judges? Indiana’s system works
Andrea Neal – 6/9/2010

KAGAN COMMENTARY

Wall Street Journal/Law Blog: Kagan’s Brushes With the Boldfaced (While a Supreme Court Clerk)
Jess Bravin – 6/8/2010

Washington Times: Kagan’s ‘full faith’ in same-sex marriage
Editorial – 6/8/2010

Blog Of Legal Times: Dellinger: Kagan is no Souter
David Ingram – 6/8/2010

NOMINATION/POLITICS

Talking Points Memo: Bipartisan SCOTUS Experts: Confirmation Hearings A ‘Joke’
Christina Bellantoni – 6/8/2010

Witchita Eagle: Could Mother Teresa get GOP votes?
Rhonda Holman – 6/8/2010

Radio Iowa: Grassley to meet with Supreme Court nominee today
Matt Kelley – 6/8/2010

NewsBusters: CBS Reporter: Thin-Skinned White House Won’t Tolerate Reports Elena Kagan Is Liberal
Rich Noyes – 6/8/2010

NPR/Political Junkie: Announcing The Official ‘Elena Kagan Confirmation Vote’ Contest
Ken Rudin – 6/8/2010
Read more…

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