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Monday, September 03, 2007

Supreme Court ruling contrary to ABA rule of judicial conduct

In a previous post, I noted the following rule of the 2004 edition of 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.

The following ruling of the Supreme Court in United States v. El Paso Gas Co., 376 U.S. 651, 656 (1964), a direct appeal from a federal district court, is contrary to the above rule of judicial conduct:

There was a trial, and after oral argument the judge announced from the bench that judgment would be for appellees and that he would not write an opinion. He told counsel for appellees "Prepare the findings and conclusions and judgment." They obeyed, submitting 130 findings of fact and one conclusion of law, all of which, we are advised, the District Court adopted verbatim. Those findings, though not the product of the workings of the district judge's mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence . . . .[citation omitted]

So it is evident that the appellants were not -- as currently required by the above ABA rule -- given an opportunity to respond to the opposing side's proposed findings of fact and conclusions of law. I don't know if the above ABA rule was in existence at the time of the above Supreme Court ruling. The preface of the 2004 edition of the ABA Model Code of Judicial Conduct says,
.
The Code of Judicial Conduct was adopted by the House of Delegates of the American Bar Association on August 16, 1972. The Code replaced the Canons of Judicial Ethics, which had been formulated almost 50 years earlier. Although two amendments to the Code have been adopted since 1972, the Code has not been reviewed comprehensively until now.

I was unable to find a copy of the Canons of Judicial Ethics that were replaced in 1972, but in any case the above Supreme Court ruling is contrary to the above ABA rule.

BTW, the above outdated ruling of the Supreme Court was favorably cited in a Panda's Thumb article, "Weekend at Behe's" by Timothy Sandefur. Furthermore, that article was favorably cited by the Wikipedia article about the Discovery Institute (Ref. #84). Sandefur said of the Discovery Institute's charge that the Dover opinion's ID-as-science section was ghostwritten by the ACLU,

The press release suggests that Judge Jones did something improper in adopting the plaintiffs’ proposed findings as his own — but that is just what a judge does when he finds that the party has proven its case.

United States v. El Paso Gas Co. continued,

Those drawn with the insight of a disinterested mind are, however, more helpful to the appellate court. [4] See 2B Barron and Holtzoff, Federal Practice and Procedure (Wright ed. 1961), 1124.

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[Footnote 4 ] Judge J. Skelly Wright of the Court of Appeals for the District of Columbia recently said: "Who shall prepare the findings? Rule 52 says the court shall prepare the findings. "The court shall find the facts specially and state separately its conclusions of law.' We all know what has happened. Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a non-compliance with Rule 52 specifically and it betrays the primary purpose of Rule 52 - the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. "I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case." Seminars for Newly Appointed United States District Judges (1963), p. 166.

Footnote 4 above was completely ignored by Timothy Sandefur, who claimed in his "Weekend at Behe's" article that the kind of one-sided copying that Jones did is perfectly normal and acceptable. Talk about quote mining.

In regard to the above ABA rule prohibiting the judge from asking for proposed findings of fact and conclusions of law from only one side, a judge could -- as Judge Jones did -- defeat the spirit of this rule by asking for proposals from both sides but completely ignoring the proposals of one side. A judge should show evidence that he considered both sides' proposals -- and the only way to do that is to address both sides' proposals in the opinion.

The Dover defense attorneys from the Thomas More Law Center probably immediately noticed the ghostwriting but said nothing. The website of the TMLC has said nothing about the case since the day after the decision was released.

If Judge Jones had expected his decision to be appealed (an appeal was very unlikely because the newly elected school board members had promised to repeal the ID policy), he probably would have addressed the defendants' arguments on the ID-as-science question.
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