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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Saturday, September 01, 2007

ABA rules for ghostwritten judicial opinions

Some people have the idea that it is a common practice for judges to just make up their minds as to which side won a case and then simply ask the winning side to write the opinion. For example, the blogger on www.lawhaha.com says,

After my first trial as a young lawyer a million years ago, the judge called, said we had won and asked me to draft an opinion to send to him. Ghostwriting for judges is as old as ... well, ghostwriting.

Such a practice is contrary to the American Bar Association's Model Code of Judicial Conduct, Canon 3B(7) Commentary:

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

Actually, that's no good either, because (1) only one side would get a chance to answer the other side's "proposed findings of fact and conclusions of law" (PFFCL) brief and (2) asking one side to submit a PFFCL brief and the other side to submit a rebuttal to that brief would suggest that the judge has already made up his mind even before seeing these briefs. The Supreme Court said in Anderson v. Bessemer City, 470 U.S. 564, 572 (1985):

We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial -- Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962).

The proper way to do it is to first have both sides submit a PFFCL brief and then have both sides submit answers to the opposing side's PFFCL brief. This is the way it was done in the Kitzmiller v. Dover case (Judge Jones did at least one thing right).

BTW, there are different local federal district court rules about these PFFCL briefs.

The ABA rules do not say that it is wrong for a judge to simply adopt the winning side's PFFCL verbatim -- or nearly verbatim -- as the opinion. That is where an article by the Discovery Institute's Casey Luskin comes in -- this article and his associated articles show that one-sided copying is frowned upon in the courts. In the ID-as-science section of the Kitrzmiller v. Dover opinion, there is no evidence that Judge Jones read any of the post-trial briefs other than the one that he copied from, the ACLU's initial PFFCL. Judge Jones showed extreme prejudice against the Dover defendants by saying in his Dickinson College commencement speech that his Kitzmiller decision was influenced by his notion that the Founders' believed that Christianity (and, by extension, organized religions in general) is not a "true" religion, and so I strongly suspect that he did not even bother to read any post-trial brief other than the plaintiffs' PFFCL. Here is an excerpt from Judge Jones' commencement speech:

. . . we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."

Incredibly, a lot of jerks have claimed that I was wrong in interpreting Jones' above statement as showing hostility towards organized religions. I assert that my interpretation is at least a reasonable one, and judges are supposed to avoid giving even a mere appearance of bias.

Also, Jones showed prejudice in a statement that was made in the Dover opinion itself (page 63):

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis.

The analysis of the ID-as-science question was supposed to be independent of the analysis of the community's perceptions of whether ID is religion, but here Jones is saying that the answer to the ID-as-science question "can likely be predicted" by his analysis of those perceptions.

The argument that the defendants' arguments were so bad that there was no need for Judge Jones to address them does not hold water. If the defendants' arguments were that bad, all the more reason to address them in order to refute them. The Darwinists are chagrined that the DI report of Jones' copying has succeeded in putting a big dent in the credibility of the Dover decision and so they have come up with all sorts of phony arguments in a futile effort to counter the report.

As I have said many times, my big objection is to one-sided judicial copying -- not just judicial copying per se.

Also, as for the objections to my use of the term "ghostwritten" to describe opinions that are essentially written by the attorneys, this term was used in Bright v. Westmoreland County (page 2):

Therefore, Bright asserts that he is appealing an order supported by an opinion that were ghostwritten by appellees' counsel.

As usual, no reason was given for objecting to my use of the term. Those who object but can't state a reason have no credibility.
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3 Comments:

Anonymous Anonymous said...

Sure, the arguments can go on for as long as people care to argue. Maybe the Dover District counsel didn't notice the highly unusual 3d Circuit precedent of Bright v. Westmoreland County (2004) Maybe they did, and assessed that the Kitzmiller case wasn't equivalent in extent of use of the proposed decision, or in any other way, to that of the Bright case, where the judge dismissed a case at the outset using a verbatim proposed decision with significant legal errors in it. Bright was an aberration, a case that was brought by a father suing the murderer of his 8-year old daughter, erroneously dismissed out-of-hand by the trial judge using the defendant's proposed findings verbatim. Maybe the Kitzmiller decision wasn't quite the same type of situation.

Or, maybe the ACLU successfully snookered a Republican judge, Bush appointee, sincere Christian. It doesn't matter-- the case was over after the 30 day right of appeal lapsed.

That established body of case law which would be needed to properly assert that Judge Jones did anything that would be considered reversible on appeal simply doesn't exist. The Bright case is a highly unusual development. And there's absolutely no credible evidence that Judge Jones did anything improper. The way Jones used the proposed decision is exactly what proposed decisions are for, for the judge to use verbatim as the judge sees fit. Even in the Third Circuit in 2005, short of a completely verbatim copying and indications of appealable legal error that would have affected the outcome of the case, this case was over after January 19 2006, 30 days following the entry of the decision. This cherrypicking of sources for arguments by the Discovery Institute, Luskin and Fafarman is nothing but bitching at this stage.

Tuesday, September 04, 2007 1:16:00 PM  
Blogger Larry Fafarman said...

>>>>> Sure, the arguments can go on for as long as people care to argue. Maybe the Dover District counsel didn't notice the highly unusual 3d Circuit precedent of Bright v. Westmoreland County (2004) <<<<<<

The arguments are going to go on so long as new discoveries are made -- e.g., the ABA code I just cited. We opponents of the Dover decision are going to do our best to discredit it.

I suspect that the Dover District's attorneys from the Thomas More Law Center noticed the ACLU's ghostwriting of the opinion's ID-as-science section because they were the ones who wrote the response to the ACLU's proposed findings of fact and conclusions of law. In contrast, the Discovery Institute did not immediately notice the ghostwriting because the DI was responding to the opinion rather than the ACLU's PFFCL brief. Anyway, the TMLC said nothing about the ghostwriting. The TMLC website has said nothing about the case since the day after the decision was released.

BTW, there is a common misconception that the Bright decision was "dismissed" or "reversed" -- actually, it was just vacated and remanded. The appeals court in Bright incorrectly used the word "reversal" -- the correct term is "vacation" --

We therefore hold that the District Court's adoption of the appellees' proposed opinion and order, coupled with the procedure it used to solicit them, was improper and requires reversal with a remand for the court to reevaluate the appellees' motion to dismiss in a procedure consistent with this opinion.

So the appeals court's decision in Bright is even more supportive of the idea that ghostwriting is frowned upon even when it is not grounds for reversal. In Bright, the ghostwriting was just considered grounds for vacation and remand but not for reversal.

>>>>> Maybe the Kitzmiller decision wasn't quite the same type of situation. <<<<<

That argument is absurd. Broad principles can be applied from one case to another even when the two cases are different.

>>>>> Or, maybe the ACLU successfully snookered a Republican judge, Bush appointee, sincere Christian. It doesn't matter-- the case was over after the 30 day right of appeal lapsed. <<<<<<

Sincere Christian? LOL Judge Jones said in his Dickinson College commencement speech that Christianity is not a "true" religion. Jones bent over backwards to try to show that he was not influenced by his conservative background.

>>>>> That established body of case law which would be needed to properly assert that Judge Jones did anything that would be considered reversible on appeal simply doesn't exist. <<<<<

Sheesh -- we are just trying to show that what Jones did was frowned upon -- not that it was grounds for reversing or vacating the decision. Regardless of the ID-as-science section of the opinion, there were other grounds for ruling against the defendants.

>>>>> The Bright case is a highly unusual development. <<<<<

You are arguing against yourself. First you said ghostwritten opinions are common, then you say that the ghostwritten opinion in Bright is a highly unusual development.

>>>>>> The way Jones used the proposed decision is exactly what proposed decisions are for, for the judge to use verbatim as the judge sees fit. <<<<<<

Wrong. There are limits to how judges may use proposed findings of fact and conclusions of law. Jones stepped over those limits.

>>>>>> This cherrypicking of sources for arguments by the Discovery Institute, Luskin and Fafarman is nothing but bitching at this stage. <<<<<<

There is no cherrypicking here -- there are no authorities that say that Jones' copying of the ACLU was OK.

The Dover decision has been shown to be a worthless piece of crap, yet you Darwinists continue to harp on it.

Wednesday, September 05, 2007 12:12:00 AM  
Anonymous Anonymous said...

I like those words "... has been shown to be [a worthless pisss of crap..." posted by Laurel-and-Farfman just above. Sounds like?" Survey says: CIAspeaK. Farfman, I'm really impressed. I love you, man.

Friday, September 07, 2007 10:07:00 PM  

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