Judge Jones is hypocritical about "judicial independence"

It may seem hard to believe, but five years after the Kitzmiller v. Dover ruling, Judge John E. "Adolf" Jones III is still on the lecture circuit. Here is a recent lecture by Jones hypocritically titled, "From Scopes to Kitzmiller and beyond: lessons in judicial independence." I know that this lecture is recent because Jones said that the Kitzmiller trial testimony had concluded five years previously (my, how time flies). I say that the lecture was hypocritical because his blatant chumminess with the Kitzmiller plaintiffs' representatives -- e.g., plaintiffs' expert witness Barbara Forrest and plaintiffs' attorney Richard Katzke -- is not consistent with the idea of "judicial independence."

Judge Jones has falsely characterized criticism of his decision as just an issue of "judicial independence" -- as I have previously pointed out, some of his biggest critics have been Darwinist, atheist, or neutral.

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Proposed principle of "judicial objectivism": Judges should try to avoid basing judicial opinions on personal opinions

JUDGE "JACKASS" JONES, POSTER CHILD OF JUDICIAL ACTIVISM

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My proposed principle of "judicial objectivism" is that judges should try to avoid basing decisions on their own biased personal opinions and should try to use reasoning that is so airtight that no reasonable person could find fault with it. I call it "judicial objectivism" to distinguish it from the general philosophy of "objectivism" and the "objectivism" of Ayn Rand in particular, though my "judicial objectivism" is related to those other philosophies' idea that there are truths or realities that are independent of individual perceptions. IMO the principle of "judicial independence" is actually harmful when it encourages -- as it did in the case of Judge "Jackass" Jones -- judges to base their decisions on their own biased personal opinions. Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. This proposed principle of "judicial objectivism" -- like my proposed principles of "non-justiciability" and the "compelling reason" test for non-literal interpretations of the Constitution -- is aimed at eliminating or reducing the courts' arbitrariness, capriciousness, "activism," and "legislating from the bench."
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"Opinion," like "theory," is a term that has a technical definition that differs from the everyday, colloquial definition. The technical definition of "opinion" in the law is, according to my Webster's New World Dictionary, Third Collegiate Edition, "the formal statement by a judge, court referee, etc. of the law bearing on a case." One of this dictionary's colloquial definitions is: "(1) a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one's own mind, judgment." In comparing "opinion" to several synonyms, the dictionary also says, "opinion applies to a conclusion or judgment which, while it remains open to dispute, seems true or probable to one's own mind . . ." My "judicial objectivism" idea is aimed at eliminating or reducing the openness to dispute. As for "theory," maybe the Darwinists should hire process servers to serve process on governments in lawsuits charging that the government officially uses the term "evolution theory" even though the technical meaning of "theory" is different from the colloquial or everyday meaning.

The statement "ID cannot uncouple itself from its creationist, and thus religious, antecedents," in the conclusion section of Judge Jones' Kitzmiller v. Dover opinion, is a good example of a statement that violates this principle of judicial objectivism, because reasonable people can easily find fault with that statement. For example, many reasonable people believe that ID "uncouples" itself from creationism by strictly using only scientific arguments and avoiding religious sources. For example, intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.

IMO a good example of a ruling that satisfies "judicial objectivism" is the ruling in Romer v. Evans that particular groups of people cannot be barred from seeking the aid of the government, which Colorado's Proposition 2 did in effect (Proposition 2 prohibited all laws and regulations aimed at protecting homosexuals from discrimination). The majority opinion said,

Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

There was a lot of moaning and groaning that the courts, by striking down a proposition approved by the voters, had overturned the "will of the people," but IMO there is no reasonable argument against the above reasoning. The only counterargument that dissenting justice Antonin Scalia could raise was the feeble argument that this reasoning appears (in his opinion) to be new:

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.

Well, Antonin, there is a first time for everything, and the next time the principle is raised you certainly won't be able to argue that "[t]he world has never heard of such a principle."

I find other arguments of the majority to be unpersuasive -- for example, the majority said that Proposition 2 shows animus against homosexuals. But a lot of legitimate government laws and regulations arguably show animus -- for example, laws against gay marriage arguably show animus against homosexuals.
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Judge Jones still on the lecture circuit

Judge John E. "Jackass" Jones III is still giving public speeches, at least occasionally -- I thought that by now he would have crawled back into his hole because of all the blistering criticism of his Kitzmiller v. Dover decision. I previously reported that Jones is scheduled to be a "keynote" (sounds off-key to me) speaker at a conference titled "Darwin's Reach: A Celebration of Darwin's Legacy Across Academic Disciplines," to be held at Hofstra University in March 2009. Now I have learned that Judge Jones is scheduled to speak on Sept. 25 at Case Western Reserve University as part of a lecture series titled, "2008-2009 Year of Darwin and Evolution." BTW, critics of evolution and critics of court decisions about evolution are conspicuously absent from these events.
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I presume that his speeches now are -- like his speech at a national meeting of the Anti-Defamation League and his speech at Bennington College -- harangues about the virtues of "judicial independence" instead of attempts to defend his Dover decision in particular, like his "true religion" commencement speech at Dickinson College. What Judge Jones does not realize is that the principle of "judicial independence" can go only so far in justifying an unpopular decision -- the public is supposed to be generally supportive of the constitutional principles and laws that court decisions are supposed to be based upon. Megalomaniacal Judge Jones fancies himself as a white knight in shining armor -- or a Horatius at the bridge -- heroically defending the Constitution and the ideals of the Founders against the tyranny of the great unwashed majority. Where a decision is unpopular, the court opinion should at least argue persuasively that the decision was reasonable and fair, but the Kitzmiller v. Dover opinion utterly failed to do this -- the majority of expert opinions in law journal articles and elsewhere were critical -- often harshly critical -- of the opinion.

A note about Judge Jones' nickname "Jackass": That is what Dover defendant Bill Buckingham called him in an interview on the PBS NOVA TV program about the trial, and I decided I liked the name -- it is brief, alliterative, and to the point.
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Overpaid judges

A USA Today article titled "Pay gap dismays federal judges" says,

Salaries of federal judges lag far behind those of private attorneys and law school deans, contributing to their departure from the bench in unprecedented numbers.

Since 2005, 22 of 875 federal judges serving lifetime appointments have resigned or retired — more than at any time in history, according to the Administrative Office of the United States Courts. Most earned higher salaries after leaving the bench. Of the 19 who have taken jobs, 14 went into private practice and five into education or government.

Something is very fishy about those numbers. If the number who have taken other jobs, 19, is subtracted from the number who have resigned or retired, 22, that leaves only three judges who have retired since 2005 out of a total of 875 judges. That number three is awfully low.

A sidebar of the article says,

Statistics collected by the Administrative Office of the U.S. Courts show:

• Salaries of deans at the top 25 law schools reach $430,000. Senior law professors earn about $330,000. The median salary of all law school deans in 2005 was $229,600.

• New law school graduates start at $160,000 in big-city firms.

The problem is not that federal judges are underpaid -- the problem is that other legal professionals are overpaid.

Also, a caption on a photo in the article says,

Ohio Supreme Court Chief Justice Thomas Moyer says Ohio judges haven't had an increase in pay for seven years.

However, the caption does not note that Ohio judges have been getting cost-of-living increases. Another article says,

In Ohio, judges receive regular cost-of-living increases.

This other article also said,

Pennsylvania judges went a decade without any raise in base pay, according to Stuart Ditzen, a spokesman for the Administrative Office of Pennsylvania Courts. In July 2005, the Legislature raised salaries for lawmakers, judges and other state officials — during a 2 a.m. vote that enraged voters and led to the defeat of at least six legislative leaders that November. Voters also ousted Pennsylvania Supreme Court Justice Russell Nigro — the first time in state history, Ditzen says, that a high-court justice was voted off the bench.

After the election, the Legislature repealed the pay raise for everyone. In September 2006, the Pennsylvania State Supreme Court upheld the pay raise for more than 1,000 state judges, Ditzen says. The court's decision further fueled a citizens' revolt. The activist group that helped defeat Nigro — called PA Clean Sweep — is now campaigning to persuade voters to defeat 66 of the 67 judges on the November ballot. One judge who returned her pay increase to the state treasury has been spared the organization's wrath, says the group's founder, Russ Diamond.

I am sure glad to see a public backlash against sleazebag judges. Let them quit -- we couldn't possibly have worse judges than we have now.
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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,
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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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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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Proposed court rules

I propose three court rules here. One of these rules is already in effect in California courts.

My first proposed rule is that both sides in a court case be given the option of writing comments of limited length (maybe 1000 words max) which would then be attached to the opinion and become part of it, except that these comments would not become citable precedents in other court cases. The comments could be written by the attorneys, the litigants, or both. This would be like the dissenting and concurring opinions that are written by Supreme Court justices and other judges . Adding litigants comments would have the following advantages:

1. Litigants' and/or their attorneys' responses to a judge's opinion would become part of the official record.

2. Where a judge states no opinion at all or only addresses the winning side's arguments, this would give the losing sides a chance be heard. Of course, courts of review are supposed to read the losing side's briefs, but the losing side's arguments are far more difficult to ignore when they are part of the opinion. The losers could also attack the judge's procedures, e.g., Judge Jones' essentially allowing the ACLU to ghost-write the ID-as-science section of the Kitzmiller v. Dover opinion.

3. It would give litigants an opportunity to respond to personal attacks from the judges. For example, Judge Jones' Kitzmiller decision personally attacked the defendants, saying,
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The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy . . . . this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Under this new rule, the opinion could include, for example, the following response from defendant William Buckingham:

If the judge called me a liar, then he's a liar. I'm still waiting for a judge or anyone else to show me anywhere in the Constitution where there's a separation of church and state. We didn't lose; we were robbed.
From page 336 of "Monkey Girl" by Edward Humes.

This rule would help eliminate judges' unscrupulous practices of (1) writing no opinion at all and (2) writing an opinion that addresses only one side's arguments.

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My second proposed rule is that instead of releasing final opinions immediately, the courts must first issue tentative opinions and then hold public comment periods before releasing the final versions of the opinions. This would be similar to the public comment periods that are used in the rulemaking procedures of administrative agencies. Having public comments would allow a broad range of opinions to be presented. Such public hearings would be especially beneficial at the Supreme Court level because a Supreme Court decision cannot be appealed. Petitions for rehearing are supposed to serve the function of this proposed comment period, but petitions for rehearing have the following disadvantages: (1) the public cannot participate, and (2) the Supreme Court virtually never grants rehearings; the last I heard, the SC had granted only one rehearing ever (of course, that is more the fault of the SC than of the current rehearing procedure, but public hearings might have the effect of increasing the number of rehearings by the SC).

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My third proposed rule is to allow one-time "peremptory challenges" of (1) randomly selected judges at the start of a case and (2) the original judges when decisions are remanded. As everyone who is familiar with jury selection knows, a "peremptory challenge" in jury selection is a dismissal of a juror by an attorney without any requirement that a reason be given for the dismissal. The federal court rules do not provide for such peremptory challenges of judges, and remanded decisions are returned to the judges who made them in the first place. This is bad, because the judge is likely to try to justify his/her old decision when making a new decision. The rules for California superior courts already allow such peremptory challenges both at the start of the case and for remands. I believe that in remands in the California courts, only the party that lost in the original decision is eligible to ask for a different judge. However, the original decision may be a split decision, i.e., with each side winning something, in which case there would be no "losing" party. So should both sides be eligible to request a new judge where there was a split decision? But what if, say, a party wins big except for losing on a small point; should that party then be eligible to request a new judge while a party that wins everything is not entitled to request a new judge? IMO the only fair thing to do is to allow any party to ask for a new judge.

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One likely argument against these proposals is, "but it has never been done that way." Well, in some of the federal circuits, the same argument could have been made against the recently adopted federal court rule, FRAP 32.1, which requires all federal circuits to allow citation of "federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like; and (ii) issued on or after January 1, 2007." FRAP 32.1 was the most controversial proposed federal court rule in American history but was nonetheless adopted. IMO my proposed court rules here are far less controversial than FRAP 32.1.

Another likely argument against these proposals is that they would slow down litigation, since extra time must be allowed for public hearings and litigants' preparation of comments. But litigation is often so slow anyway that adding a little extra delay is not going to make much difference; for example, in Selman v. Cobb County, the appeals court, merely on the grounds of missing evidence, vacated and remanded the district court decision a long sixteen months after that decision was issued.

I think that these three rules would go a long way towards helping to keep judges fair and honest.
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Ex-justice O'Connor shows contempt for public

A news article said,

TRAVERSE CITY — States must teach their students more about government or risk losing any future respect for laws and judicial rulings, former Supreme Court Justice Sandra Day O’Connor told a dwindling group of the nation’s governors in Traverse City on Monday.

On the last day of the four-day National Governors Association conference at the Grand Traverse Resort, O’Connor said an uneducated public is responsible for recent harsh criticism of the judiciary.

She cited ballot initiatives in South Dakota and Colorado as examples.

In South Dakota, voters defeated a measure to strip governmental immunity from judges, opening them up to civil lawsuits from people who appeared in their courts. In Colorado, voters defeated a measure to put term limits on state Appeals and Supreme Court judges.

She also mentioned efforts to impeach federal judges.

By calling for more civic education, O'Connor is showing her contempt for the American public. It is very annoying for us to go to school for so many years and then be told that we're ignorant. About one-fourth of Americans are college graduates.

Judges misuse the judicial independence principle to try to discredit legitimate criticism of bad decisions.

My thanks to JAIL4Judges (now linked in my sidebar) for bringing this article to my attention.

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Insane federal court rulings on "standing"

Federal court rulings on standing to sue were perhaps best summarized by Justice Harlan's dissent in Flast v. Cohen:

A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

The courts frequently strain at a gnat and swallow a camel by strictly following trivial rules of standing while ignoring charges of major violations of the Constitution and the laws.

A webpage titled "Constitutional Limitations on the Judicial Power: Standing, Mootness, Ripeness, and Political Questions Doctrines", part of a series called "Exploring Constitutional Conflicts" published by the University of Missouri-Kansas City Law School, gives some interesting examples of the Supreme Court's rulings on standing to sue. Here is one example:

. . . in the 1982 case of Valley Forge Christian College v Americans United for Separation of Church and State, the Court concluded--in a case involving a donation of federal property to a religious college--that taxpayers lacked standing to challenge an Establishment Clause violation when Congress was exercising its power under the Property Clause rather than the Spending Clause.

It gets worse. Here is another example:
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In Warth v. Seldin (1975), the Court threw out a suit brought by persons challenging exclusionary zoning ordinances of a wealthy suburb of Rochester, New York. The Court said the plaintiffs failed to identify a specific project that would have been built but for the allegedly unconstitutional ordinances.

Well, maybe the reason why there were no such specific projects was that the ordinance discouraged the planning of such projects. Duh.

-- and another:

. . . in Allen v Wright (1984), the Court found that plaintiffs challenging tax exempt status for racially discriminatory private schools failed to show that the injuries they alleged were "fairly traceable" to the defendant's (the I.R.S's) illegal action (granting of tax-exempt status).

IMO the following two rulings jointly take the cake:

In City of Los Angeles v Lyons (1983), the Court dismisses a suit for injunctive relief brought by a Los Angeles motorist who had been rendered unconscious by what he alleged was the LAPD's unconstitutional employment of a chokehold as a method of subduing suspects. The Court said that while Lyons undoubtedly had standing to sue for damages, a suit for injunctive relief required him to show there was a real and immediate threat of him being subjected to another chokehold -- something the Court said he could not do.

. . . in U. S. v SCRAP, the Court found that five law students who formed a small environmental group had standing to challenge a decision of the Interstate Commerce Commission allowing a 2.5% increase in rail freight rates. The Court accepted SCRAP's argument that they were likely to be injured if the rate increase went into effect because the increase would disproportionately affect recycled goods -- and if fewer goods were recycled, the group would be more likely to encounter litter on its hikes around the Washington, D. C. area.

LOL. All this stuff reminds me of the comedienne Anna Russell, who amused audiences by telling true stories of Wagner's Ring Cycle operas and adding, ""I'm not making this up, you know!" It was such a trademark expression that she used it as the title of her autobiography.

Federal rules of standing are partly derived from the "cases and controversies" clause of the US Constitution, which says,

Article III, Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

For starters, the terms "case" and "controversy" are used interchangeably in the above clause. If a lawsuit is based on the Constitution, the laws of the US, treaties, etc., it is called a "case," but if the basis of the lawsuit is that the US is a party, there is a controversy between two or more states, a controversy between a state and citizens of another state, etc., then the lawsuit is called a "controversy." So the terms "cases" and "controversies" do not appear to have any particular meaning at all.

Supposedly the following requirements for standing are based on the cases and controversies clause: (1) the case or controversy must be about an actual situation and not just a hypothetical or moot one; (2) the court must be able to provide a remedy; and (3) the plaintiffs must be "injured in fact."

As for the first requirement, anything can be a "controversy," including strictly hypothetical situations. However, regardless of Article III's requirements, the courts have good reasons for declining to give advisory opinions on hypothetical situations. For one thing, an advisory opinion might discourage people from doing things that the courts might on closer examination find to be constitutional or legal. Also, the workloads of the federal courts might greatly increase if they were allowed to make "pre-emptive surgical strikes" against purely imaginary wrongdoings. Finally, people who have not actually committed the imaginary wrong would have to defend themselves at great trouble and expense. Nonetheless, some state courts issue advisory opinions.

Also, the requirement that the court be capable of providing a remedy is reasonable. Courts are not just debating societies. However, IMO a remedy should not be denied just on the grounds that it won't help the plaintiff, if the remedy can help others (this also concerns the "injured in fact" requirement).

One of the biggest reasons given for the "injured in fact" requirement is that plaintiffs who are "injured in fact" are supposedly likely to be more diligent in pursuing lawsuits than are uninjured plaintiffs. This is one of the biggest crocks of baloney to come down the pike in a long time. Look at the Cobb County school board, which took a dive by settling out of court in their evolution-disclaimer textbook case despite having the following things going for them:

(1) The Cobb County school district is not just rich but is filthy rich.

(2) In oral hearings, the appeals court judges strongly indicated that they were leaning towards reversal but then vacated and remanded the decision because of missing evidence.

(3) The evidence that was the basis of the original district-court decision was missing and was not likely to be found.

(4) Despite being richer than Croesus, the school district received free representation from its attorney in the appeals court.

(5) The board received other offers of free legal representation.

(6) The board ended up paying high legal fees anyway -- over $250,00, as I remember -- while losing the case.

(7) The board's appeal was not just in support of the contents of the sticker but was also in defense of the board's prerogative to adopt the sticker.

In contrast to the wimpiness of the Cobb County school board, no plaintiff has ever been more diligent than I was in my lawsuits against the grossly unconstitutional $300 California "smog impact fee," even though I never paid the fee (I avoided the fee because of a technicality). My "injury in fact" was my mental suffering resulting from my having to share this planet with this abominable fee. I filed about a half-dozen lawsuits in the 9th and D.C. federal circuits and made two appeals to the US Supreme Court. My position was that my challenge to the fee belonged in the federal courts despite general rules prohibiting state-tax suits in the federal courts. I was vindicated when a top former California auto-emisssions control official testified in state court that the fee required the approval of the US Environmental Protection Agency.

Also, the "injured-in-fact" requirement is not always enforced. For example, environmental laws have "citizen suit" provisions giving citizens standing to sue for enforcement of environmental laws without making any allegations of actual or potential harm to anyone or anything, let alone making allegations of actual or potential harm to themselves, the plaintiffs.

This blog started out to be mainly focused on the evolution and holocaust controversies, but it is turning out to be something of a general law blog as well (and not just about laws and court cases specifically pertaining to the evolution and holocaust controversies).
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Sandefur wrong about Judge Jones' "judicial activism"

I wish that I could post this comment on the Panda's Thumb blog, but I have been banned there. If I try posting comments there under a false name, then self-appointed blogosphere goons like Kevin Vicklund, seeing the obvious intelligence and knowledgeability of the comments, will shout "hey -- it's Larry again" and demand that the comments be censored immediately. And the PT bloggers often comply. Some of the PT bloggers -- Brayton, Myers, and Elsberry -- also censor comments on their personal blogs (to their credit, some PT bloggers have not censored my comments on their personal blogs). Bloggers who arbitrarily censor comments are afraid of open debate. I am not afraid of open debate -- that is why this blog has a no-censorship policy (no, Voice in the Wilderness, my no-censorship policy does not obligate me to allow gossip about my private affairs).

In a Panda's Thumb post responding to pages 14-17 (pages 8-11 of the pdf file) of the Montana Law Review's main Discovery Institute article about the Kitzmiller v. Dover, Timothy Sandefur says,
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. . .De Wolf, et al., contend that Judge Jones acted in an “activist” manner because he “tried to settle a controversial social issue by deciding matters far beyond the necessary legal questions he had to address.” (p. 17)[p. 11 of pdf file]. That is, by concluding that ID is not science, in addition to concluding that ID is religion, Judge Jones went farther than necessary. But that’s not activism—that’s orbiter dicta. Dicta is a legal term meaning “words in a judicial decision that aren’t necessary to the particular holding in a case” (or, literally, “words around (the subject)”). (emphasis added)

But as the Discovery Institute article noted, Judge Jones himself claimed that the ID-as-science section of the Kitzmiller opinion was necessary:

. . we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. (emphasis added)

Also, the ID-as-science section is seen by many as the centerpiece of the opinion because this section applies to Intelligent Design in general whereas the rest of the opinion just applies specifically to the Dover Area school district and its school board. So the ID-as-science section can hardly be considered to be just "words around the subject."

Two reasons why dicta are generally not considered to be binding precedent are: (1) the issues in dicta might not have been contested by the litigants and (2) dicta are often not carefully considered by the judges who write them. Neither of those two reasons apply to Kitzmiller v. Dover.

Also, the term dictum usually refers to a brief remark whereas the ID-as-science section is about 6,000 words long.

Also, Judge Jones has been inconsistent in his use of the term "activist judge." In the Kitzmiller opinion, he claimed that he is not an activist judge, then in out-of-court statements he defined "activist judge" as a judge "whose decision you disagree with." So he was essentially claiming that he is a judge whose decisions nobody disagrees with. Also, his speaking in the voice of the court -- "this is manifestly not an activist Court" -- sounds like he was speaking for his entire federal district court whereas he was just speaking for himself. IMO judges should sometimes just cut the high-falutin imperial "we" and "us" malarkey and just use a candid "I" or "me."

Actually, Judge Jones' definition of "activist judge" as a judge "whose decision you disagree with" is not a definition at all because in any specific instance the term would mean different things to different people, depending on whether or not one disagrees with the judge's decision.

I tend to agree, though, that the terms "activist judge" and "judicial activism" have become almost meaningless because so many ideological groups have tried to hijack these terms for their own exclusive use. I discuss these terms in this blog article.

Also, the Discovery Institute's article in the Montana Law Review said,

Proclaiming that one is not an activist judge does not make it so. And claiming that those who charge "judicial activism" simply disagree with the ruling and have nothing better to say does not mean that reasonable arguments cannot be raised that Judge Jones's ruling intruded into inappropriate territory or had factually incorrect findings. (page 16 of Montana Law Review, page 10 of pdf file)

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Judge is trying to take cleaners to the cleaners

An AOL news article says,

WASHINGTON (June 6) - A customer who believes he was mistreated by a dry cleaner has dropped the pants from his suit. Roy L. Pearson, who filed a $67 million lawsuit against the dry cleaning business that lost his pants, has lowered his demand. Now, he's asking for only $54 million, according to a May 30 court filing in D.C. Superior Court.

The District of Columbia administrative law judge first sued Custom Cleaners over a pair of pants that went missing two years ago. He was seeking about $65 million under the D.C. consumer protection act and almost $2 million in common law claims.

He is now focusing his claims on signs in the shop that have since been removed. The suit alleges that the three defendants, Jin Nam Chung, Soo Chung and their son, Ki Chung, committed fraud and misled consumers with signs that claimed "Satisfaction Guaranteed" and "Same Day Service" . . . .

. . .The Chungs, immigrants from South Korea, are now facing tens of thousands of dollars in legal fees and emotional distress, Manning says. A donation Web site the Chungs set up for help _ Custom Cleaners Defense Fund _ has barely collected enough to pay a tenth of their costs, Manning [the Chungs' attorney] says.

In the month since Pearson's lawsuit received wide publicity, national groups as well as blog comments have expressed shock at Pearson's demands and called for his ouster. Many blog comments say this kind of suit makes the American justice system look bad.

Compare that lawsuit with my own federal court lawsuits against the $300 California "smog impact fee" on out-of-state vehicles, which was declared to be unconstitutional by the California state courts. I argued that the federal courts were an appropriate forum because California had "left the sphere that is exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) by basing the fee entirely on the state's special status under federal emissions laws and regulations and because the US Environmental Protection Agency was a necessary defendant because the fee required an EPA waiver of federal pre-emption of federal auto-emissions regulations (and a former top California auto emissions-control administrator testified in state court that such a waiver was required for the fee). At one point, the government attorneys half-threatened to try to have me declared to be a "vexatious litigant."

My advice to the legal profession: physician, heal thyself.
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Stupid new federal court rule about unpublished opinions

A new national federal court rule, Federal Rules of Appellate Procedure Rule 32.1, prohibits federal courts from prohibiting or restricting citations of unpublished opinions. However, the new rule does not require any court to use unpublished opinions as binding precedent. The district courts have their own set of rules, the Federal Rules of Civil Procedure, but follow the FRAP rules when there is no applicable FRCP rule (as for amicus briefs).

Prior to the enactment of the new rule, an article noted, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it." If ten of the thirteen circuits independently had rules or policies against the citation of unpublished opinions, then there are probably some darn good reasons for such rules and policies.

An article said,
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"Because unpublished opinions tend to be thin on the facts, and written in loose, sloppy language -- and because there's about a zillion of them out there -- they will create a veritable amusement park for lawyers fond of playing games," says 9th Circuit Judge Alex Kozinski, the leading opponent of the rule, in a 22-page letter to the committee.

A 2003 article said,

In testimony before a House Judiciary Committee hearing last year, Kozinski described unpublished opinions as "simply a letter to the parties telling them who won and who lost, and why."

Indeed, many unpublished opinions have little or nothing about the facts of the case because the parties in the case are already well familiar with those facts.

So far as I can see, about the only thing that has been said in favor of the new rule is that modern technology has made it easy to search and retrieve unpublished opinions. That is like saying that we should all blow our brains out because guns have made suicide easier. In contrast, the new rule has the following disadvantages: the facts of the case that are given by the unpublished opinions are sketchy or even non-existent; the judges' reasonings are too sketchy; some court cases are not suitable to be precedents; often the opinions' authors themselves do not want the opinions to be cited; many unpublished opinions are written only to satisfy the litigants that there was some reasoning behind the decision; as a result of this rule, judges will often spend more time writing unpublished opinions, increasing court backlogs and taking judges' time away from writing published opinions; judges will stop issuing unpublished opinions in many cases in order to avoid being cited; many unpublished opinions are written by court clerks; there is too big an expansion of citable precedents; it increases the likelihood of conflicts between precedents; this new rule increases the disadvantages faced by (1) pro se litigants who do not have access to the best online legal search engines such as Westlaw and (2) attorneys who are not familiar with a particular specialty. And as the King of Siam would say, etcetera, etcetera, etcetera.

Former 8th circuit appeals judge Richard Arnold supported the new rule. An article said,

Arnold, who assumed senior status in 2001, also said the new rule would lead almost inevitably to giving unpublished opinions substantial weight as precedents. "It would be hard for a court to say, 'You can remind us what we did before, but we don't care. We're going to ignore it.'"

Asked if he was affirming the fears of opponents such as Kozinski that the rule change would create a slippery slope toward the widespread use of unpublished opinions, Arnold said, "Yes, and I hope the slope is very steep and very slippery." He added, "I don't know what judges are afraid of."

Judge Arnold, you yourself just described one of the things that "judges are afraid of" : "It would be hard for a court to say, 'You can remind us what we did before, but we don't care. We're going to ignore it.'" Judges will feel under pressure to follow the reasoning of other judges' decisions which for various reasons should not even be cited, let alone be used as deciding precedent.

Incredibly, the advisory committee that recommended the rule, which by coincidence had two members -- John Roberts and Samuel Alito -- who have since become Supreme Court justices, proposed that the rule be retroactive, but the final version of the rule is prospective only:

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1 [2007]. The high court adopted that amendment in the rule change . . .

Making the new rule retroactive would have meant authorizing the citation of unpublished opinions whose authors did not anticipate that this new rule would greatly increase the likelihood that their opinions would be cited.

The new rule is also discussed here.

In my federal lawsuit against the California smog impact fee, California's attorney could not even wait for this new national FRAP rule but attached an entire unpublished district court opinion to his answer to my complaint, in violation of the old 9th circuit local rule prohibiting citation of unpublished opinions.

Also, there has been a lot of controversy on this blog over my unproved assertion that the 9th Circuit once had a local rule prohibiting the citation of district court opinions, published or not. I find it easier to believe that such a rule existed than to believe that anyone would be dumb enough to enact this new rule on unpublished opinions, FRAP Rule 32.1.
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JAIL4Judges founder debates former Justice O'Connor on TV

Ron Branson, founder and head of JAIL4Judges, reported in a broadcast email,

As a result of bringing Judicial Accountability to the ballot last year, 2006, in the State of South Dakota, former Justice Sandra Day O'Connor has traveled the country taking every opportunity she can to condemn and castigate JAIL4Judges as a great concern to her. Her theme is, and has been, that J.A.I.L. (Judicial Accountability Initiative Law) undermines the independence of the judiciary. As a result, her ravings have appeared in various news publications around the country, including the Wall Street Journal, as well as on CNN TV, who contacted this author and asked if I would be available to appear at their television studios to provide the opposing view to Justice O'Connor. I accepted their offer and went on national TV opposite her.

A campus news article reported,
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Former Supreme Court Justice Sandra Day O'Connor said the best way to teach young people about the civics and the importance of the judiciary is through modern media, such as interactive Web sites and computers. The comments came during a brief speech at an SMU conference about judicial independence and accountability . . . .

. . . .O'Connor said she is in the middle of creating a Web site that will teach children of all grades about the judiciary and its importance to American life. The site could be used in classrooms across the nation, she said . . .

. . . The former justice also said she is hearing more criticisms about the judiciary than any other time in her lifetime.

She mentioned recent elections in South Dakota and Colorado that challenged the independence of judges in the state.

No, Sandra, the only way to improve the public's views of our corrupt court system is to reform it, not whitewash it.

The above campus news article is open to comments.

Good for Ron Branson! Ron is really working hard to make things better for the little guy in our court system. In contrast, some lousy finks who post comments on my blog here -- e.g., Kevin Vicklund, Bill Carter, Bob Serranos, Voice in the Wilderness, and Anonymous -- are opposed to making things better for the little guy in our court system. They were very approving, for example, of Judge TJ "Mad" Hatter's dismissal of my suit against the grossly unconstitutional California smog impact fee without stating an opinion (and there was no oral hearing), though I made a very strong argument which defendant California did not even attempt to answer. To a sensible judge, the failure of a defendant to submit a rebuttal brief would have been a red flag. The courts have said that the general right to judicial review of a government action is a strong one and whenever that right is challenged in court, any benefit of a doubt (there was not even a doubt in my case) must be granted to the plaintiff.

Because of the efforts of people like Branson, the main Los Angeles County Courthouse now has a special office to assist pro se (self-represented) litigants. There was no such office when I sued in this courthouse. I made a very costly mistake when no staffer in the superior court informed me that because my suit was for less than $25,000 (it was actually $0), I should sue in the municipal court instead of the superior court (the staffers knew that I was suing for $0 because I told them that I was having difficulty in filling out a superior court form which required a dollar damages claim). Telling me this fact would not have been giving me legal advice, which court staffers are not allowed to do -- it would have just been telling me a fact. The municipal court clerk's office had a posted sign stating this fact but the superior court clerk's office did not! Even a highly experienced out-of-town or out-of-state attorney unfamiliar with the local rules could have made the same mistake. Not only were the court fees in the municipal court much cheaper, but my mistake affected my appeals rights, too -- a municipal court case can be appealed to the superior court, which is far cheaper and easier than appealing to a state appeals court as required for superior court cases.

How many times have you wanted to file a lawsuit -- particularly against the government -- but were discouraged from doing so because of sky-high attorney fees and a court system that is extremely hostile to pro se litigants? Professional jealousy often prevents judges from ruling in favor of pro se litigants even when the pro se litigants present winning arguments, as I did in my lawsuit against the California smog impact fee.

I met Ron Branson about 10 years ago at a protest demonstration outside a branch office of the 9th Circuit federal court of appeals in Pasadena, Calif.. Thanks for hanging in there, Ron.

To suscribe to JAIL4judges, just click on the word "subscribe" under the heading on the website. Alternatively, place the word Subscribe
in the subject line of an email addressed to VictoryUSA@jail4judges.org.
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ABA panel urges weakening code of judicial conduct

A New York Times article reports,

A commission of the American Bar Association has recommended that the group weaken its code of judicial conduct by changing, from a mandatory rule to nonbinding advice, an instruction to judges to “avoid impropriety and the appearance of impropriety.”

Supporters of the change say disciplining judges for violating a concept as vague as “the appearance of impropriety” is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, and one critic — Robert H. Tembeckjian, the administrator of the New York State Commission on Judicial Conduct — has resigned in protest as an adviser to the A.B.A. commission.

“At a time when the A.B.A. is defending judicial independence from relentless attack,” Mr. Tembeckjian wrote in a resignation letter on Saturday, “I cannot imagine that either the judiciary or the public will applaud the A.B.A. for relegating the ‘impropriety and appearance of impropriety’ standard to a virtually meaningless phrase.”

. . . Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. “If they basically gut the ‘appearance of impropriety’ standard,” Ms. Henley said, “it’s unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state.”

It is not clear from the article whether the recommendation of a change from a "mandatory rule to nonbinding advice" applies just to an "appearance of impropriety" or also to "impropriety" itself, but applying the change just to the former would be bad enough. As an experienced pro se litigant, I know that often there is no solid evidence of impropriety but only an appearance of impropriety. For example, once when I sued the county of Los Angeles, the county's sole defense was that I had not given advance notice of intent to sue, but I pointed out that the statute requiring such notice applied only to monetary suits, which my suit was not. The county even repeated this defense after I pointed out the inapplicability. The judge later ruled against me on the basis of a statute of limitations. So there was apparent collusion here between the county and the judge: the county would raise a frivolous defense and the judge would then rule against me on a completely different basis. If the county had not been confident that the judge would rule against me on the basis of the statute of limitations, the county would not have risked just making a frivolous defense. Of course I could not prove that there was actual collusion, but there was definitely an "appearance of impropriety." I could give other examples. Anyone who says that there are not a lot of judges who are crooks is either blind or a liar. Judicial accountability should accompany judicial independence.

My thanks to www.jail4judges.org for bringing this to my attention.

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Judge Jones still talking through his hat

Happy new year, everyone.

Judge Jones is still using red-herring issues like judicial independence and the "Rule of Law" in a desperate attempt to dodge and discredit legitimate criticisms of his Kitzmiller v. Dover rulings. Jones said in a recent November 26 speech at Bennington College,

What all of them had in common -- all of these criticisms -- was that they omitted to note the role of precedent, how judges work, the Rule of Law. Trial judges carefully find the facts in a case and apply existing precedent as handed down by higher courts -- most notably, in this case, the Supreme Court of the United States. There was simply no attempt [in these media criticisms] to illuminate those issues or educate the public.

Providing "illumination" or "public education" about those issues -- i.e., "the role of precedent, how judges work, and the Rule of Law" -- are generally not purposes of criticisms of judicial decisions, so why should the criticisms of the Kitzmiller rulings discuss those issues? Also, Jones' suggestion that his critics and the general public need a "civics lesson" in how the courts are supposed to operate is very insulting.

Also, the main reasons why a lot of the criticisms of the Kitzmiller rulings are not accompanied by citations of laws and precedents are that (1) many of those rulings were discretionary and (2) there were no laws or precedents to apply. And there are certainly many laws and precedents that can be cited in support of criticisms of the Kitzmiller rulings -- examples are contained here, here, here, and here.

Jones continued,

In this case [Kitzmiller v. Dover Area School District], without getting excessively legal, there were two tests I had to apply. They are the Lemon Test and Endorsement Test, and what they are, in essence, are carefully crafted tests handed down by the Supreme Court that you overlay against the facts of the case to decide whether or not a particular policy violates the Establishment Clause within the First Amendment of the Constitution.

It is necessary to get "excessively legal" because there is much, much more to the rulings in the Kitzmiller case than just the decision to use the Lemon and Endorsement tests. BTW, "carefully crafted" or not, the infamous Lemon Test has fallen into extreme disfavor.

Jones continued,

To hear these critics tell it, we live in a world where judges make essentially ad hoc determinations. This is really a false world that they tend to propagate, where judges rule according to personal bias, particular whims or political philosophies, or in order to please political benefactors--or, worse perhaps, respond to the perceived public will at any given time.... And that gets into a still larger issue that I think is of somewhat crisis proportions, which I call a crisis in judicial independence. Many judges across the country feel exceedingly threatened by a public, a punditry, and a political establishment that tends to launch ad hominem attacks against individual judges when they disagree with them....

Almost none of Jones' critics expressly said that he should have ruled according to the wishes of his "political benefactors." Even Phyllis Schlafly's remark that he "stuck the knife in the backs of those who brought him to the dance" could be interpreted as meaning that she expected him to be fair and not that she expected him to rule in a certain way.

The current big controversy over the issue of judicial independence could not have come at a better time for Jones.

Also, "protesting too much" on the question of whether Jones was biased against the Dover defendants, the article about Jones' Bennington College speech pointed out again that he is a "Bush-appointed Republican Lutheran." His infamous plagiarized remarks about the Founders' "true religion" say a lot more about whether he was biased.

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Official summary of "Jail-4-judges" proposition was incredibly biased

This is a follow-up to my article titled "Fraudulent election results for "Jail 4 judges" proposition?".

Ballot propositions often have official summaries that appear on the ballot or in official ballot guides published by the government. It goes without saying that these official summaries must be neutral -- a single biased word could swing the whole vote. The official South Dakota summary -- called the "Attorney General Explanation" -- of the Amendment E ("Jail-4-judges") proposition was so badly biased against the proposition that there was a lawsuit to have the explanation changed, but the court required that only one word be changed ( an obvious case of the fox guarding the chicken coop ).

I will now examine some individual parts of the Attorney General Explanation for Amendment E. First, consider the following statement:

The proposed amendment is retroactive. The special grand jurors may penalize any decision-maker still alive for decisions made many years ago.

No provision in Amendment E says that, and any such interpretation of Amendment E would be unenforceable because ex post facto laws are prohibited by Art. 1, Sec. 9 of the US Constitution.

The explanation says,

If approved, the proposed amendment will likely be challenged in court and may be declared to be in violation of the US Constitution. If so, the State may be required to pay attorneys fees and costs.

Official summaries of propositions should never speculate about the likelihood or possibility of lawsuits. For one thing, such speculation raises fears of big legal expenses, but even a lawsuit with multi-million dollar legal expenses would have a negligible fiscal impact on a state, even a low-population state like South Dakota.

The Attorney General Explanation for a gay-marriage amendment, Amendment C, that was on the same ballot did not mention that that amendment also carried a big risk of lawsuits. Amendment C says, "Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota." The Attorney General Explanation for an abortion referendum on the same ballot also warned about lawsuits and that too was wrong.

California's famous Proposition 13 resulted in at least three lawsuits but I doubt that the official summary for that proposition warned of the likelihood or possibility of lawsuits. One of the lawsuits against Prop 13 was heard by the US Supreme Court: Nordlinger v. Hahn, 505 U.S. 1 (1992). There was also a lawsuit against Colorado's anti-gay Amendment 2 proposition, which was struck down by the US Supreme Court in Romer v. Evans, 517 U.S. 620 (1996).

The Attorney General Explanation says,

Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions.. Their decisions may be reversed on appeal, or they may be removed from office for misconduct or by election. However, they cannot be made to pay money damages for making such decisions. This allows them to do their job without fear of threat or reprisal from either side.
The proposed amendment to the State Constitution would allow thirteen special grand jurors to expose these decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits, for making decisions which break rules defined by the special grand jurors. Special grand jurors are drawn from those who submit their names and registered voters.

Just for the hell of it, why not just add the governor and the state legislature to that list of individuals and groups who "are all required to make judicial decisions"? With the term "judicial decisions" so broadly defined, is there any rational basis for excluding the governor and the state legislature from the list?

BTW, the legislature's resolution against Amendment E, passed way back in February, also claimed that Amendment E applies to all of these individuals and groups:

WHEREAS, if approved by the voters, Amendment E would actually allow lawsuits against all South Dakota citizen boards, including county commissioners, school board members, city council members, planning and zoning board members, township board members, public utilities commissioners, professional licensing board members, jurors, judges, prosecutors, and all other citizen boards; . . .

Here is what Amendment E actually said:

1. Definitions. Where appropriate, the singular shall include the plural; and for purposes of this Amendment, the following terms shall mean:

- - - - - - - - - -

b. Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

So if you are not a justice, judge, magistrate judge, or judge pro tem and you don't want Amendment E to apply to you, then the solution is simple -- just don't claim to be shielded by judicial immunity.

Also, as I have already pointed out, the state legislature should not have voted on Amendment E because the proposition was created by a "direct" initiative, which means that the proposition is supposed to go directly onto the ballot rather than going to the legislature first.

According to the Jail-4-Judges website, California Attorney General Bill Lockyer's summary of the proposition was as follows, but I don't know if he actually approved this summary because the proposition never qualified for the California ballot:

"JUDGES. RESTRICTIONS ON JUDICIAL IMMUNITY. INITIATIVE CONSTITUTIONAL AMENDMENT. Supersedes existing judicial immunity and creates three 25-member 'Special Grand Juries' empowered to: determine if a judge may invoke judicial immunity in a civil suit; indict and, through a special trial jury, convict and sentence a judge for criminal conduct; and permanently remove a judge who receives three adverse immunity decisions or three criminal convictions. Disallows immunity for deliberate violations of law, fraud, conspiracy, intentional due process violations, deliberate disregard of material facts, judicial acts outside the court's jurisdiction, unreasonable delay of a case, or any deliberate constitutional violation."

A webpage on the Jail-4-Judges website also has a long condemnation of the SD attorney general's "explanation."

The official California voter pamphlet has neutral summaries of the propositions along with debates between the supporters and opponents of the propositions. That is the proper way to do it.

The question here is not whether Amendment E is good or bad but whether the government followed fair and legal procedures in handling the proposition. The answer to the latter question is a resounding no.

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Ex-Justice O'Connor moans about threats to judicial autonomy

An AOL news article about retired Supreme Court Justice O`Connor said,

"I'm increasingly concerned about the current climate of challenge to judicial independence," O'Connor told a gathering of state judges from around the country Friday. "Unhappiness with judges today is at a very intense level."

The judiciary is the weakest of the three branches of government, she said, and therefore the one with "the greatest need to be defended."

The judiciary is certainly not the weakest of the three branches of government. On constitutional questions, court decisions can be overturned only by constitutional amendment, and amending the constitution at the federal level is a very cumbersome process -- there has not been a significant new federal constitutional amendment since the 18-year-old vote was ratified in 1971 (the only amendment since then was a trivial one on Congressional pay). If the issue is not constitutional, a court decision is virtually impossible to overturn. Federal judges have tenure and protection from pay cuts. I would say that the executive branch is the weakest branch -- it can be easily thwarted by either of the other two branches.

The article continues,

The executive and legislative branches have become the attackers, so "the principal defenders are going to have to be the people of this country," with lawyers taking the lead, she said.

O'Connor, who retired in January after 24 years on the nation's highest court, spoke just days before South Dakota voters consider the "Jail 4 Judges" initiative. It would create a citizens' grand jury that could authorize lawsuits or criminal prosecutions against judges based on their rulings.

Actually, in South Dakota it is just the opposite -- the people are the attackers and the legislators are trying to defend the judges. Both houses of the legislature voted unanimously in favor of a resolution opposing the "Jail 4 Judges" ballot proposition, also known as Amendment E. However, a recent Zogby poll showed 67% support for Amendment E -- hopefully it will pass.

A related article on this blog is Backlash against judges.

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Backlash against judges

It looks like arrogant judges who think that they can get away with anything may soon get their comeuppances. A recent article in the Los Angeles Times reported:

DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as "runaway courts."

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench . . . . .

South Dakota's Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals — including, in a rare show of unanimity, every member of the state Legislature.

Under the amendment judges in the state could lose their jobs or assets if citizens disliked how they sentenced a criminal, resolved a business dispute or settled a divorce. "We want to give power back to the people," said Jake Hanes, a spokesman for the measure.

A special grand jury would evaluate citizen complaints against judges — and judges would not be presumed innocent. Amendment E explicitly instructs jurors to "liberally" tilt in favor of any citizen with a grievance, and "not to be swayed by artful presentation by the judge."

Amendment E is titled "Judicial Accountability Initiative Law" (J.A.I.L.). The campaign website is here and the state legislature's resolution opposing the amendment is here. It is noteworthy that the resolution contains statements having nothing to do with the merits of the proposed amendment, e.g.,

WHEREAS, Amendment E was drafted by a resident of California and the petitions were circulated by paid out-of-state persons; and

WHEREAS, the Amendment E petition failed to get more than a few thousand signatures in California, and thus was never submitted to California voters; and . . . . .

South Dakota, like California, has a "direct" initiative (proposition placed directly on ballot) but no "indirect" initiative (proposition submitted to the legislature first). It seems that by voting on a resolution on Amendment E, the S.D. legislature was treating this proposition as though it had been created by an indirect initiative. I have lived in California for many years and seen dozens of propositions and to my knowledge the state legislature has never voted on a resolution regarding any one of them. I think that it was grossly improper of the S.D. legislature to vote on Amendment E.

Also, I think that the S.D. legislature is rather hypocritical about claiming to have a high respect for judicial decisions, because a recently enacted hard-line S.D. anti-abortion law was intended to be a direct challenge of Roe v. Wade.

The initials of Amendment E's title, J.A.I.L., are also the initials of the organization pushing the amendment. Maybe about 10 years ago, when I was fighting California's abominable motor-vehicle "smog impact fee," I participated in a J.A.I.L. demonstration at a courthouse -- there was just a handful of demonstrators. I never expected the organization to get as far as it has today.

I fired off the following letter to the L.A. Times in response to the article --

I wonder how much of public resentment of judges is the result of bad personal experiences with judges. I am not just talking about disagreement with the judges' decisions -- I am talking about gross malpractice on the part of judges, e.g., issuing decisions without opinions, arbitrary and capricious decisions, and apparent collusion with attorneys, particularly government attorneys. I have experienced all of these things as a pro se (self-represented) litigant. Complaints about bad personal experiences with judges should not just be dismissed as "sore loser" reactions -- attorneys have told me that judges are prejudiced against pro se litigants. Also, judges often make time for high-profile cases by giving short shrift to low-profile cases.

This resentment of judges might be a threat to judicial independence, but I think that this resentment also has a silver lining. For example, the Los Angeles Superior/Municipal Court's new special office for assisting pro se litigants could be an indication that the judges are starting to feel the heat.

The author of the article sent the following reply --

thanks for your interest in the article --

i think you're absolutely right. my sense is that the leaders of the movement to rein in judges have broad ideological objections to the way the courts are run. but they get support from the masses because people like yourself have had bad experiences in court, either in trials or in settling divorces or even something as simple as trying to pay a traffic ticket or reschedule jury duty

in any case, i appreciate your taking the time to write ---.

There are several articles in this blog on the subject of "judicial independence." The blog search window appears to be working again, so it is only necessary to enter those words in the window. The blog search window is in the top border of the blog and is not visible unless you are scrolled to the very top.

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More on judicial independence

Some of us are old enough to remember the billboards that said, "Impeach Earl Warren." Now there is a sudden new widespread interest in the issue of judicial independence, as evidenced by articles here, here, and here. This sudden new interest in this issue could not have come along at a better time for Judge John E. "I am not a lousy judge" Jones III, the judge who wrote the infamous Kitzmiller v. Dover decision. It now appears that the "judicial independence" argument is his sole defense of the decision. A few days ago he gave a speech about judicial independence at Kansas University, and according to Thoughts from Kansas he agreed to come to KU only on condition that he would not discuss the contents of his ruling or the process of the trial. At least once before he made an attempt to address an issue directly concerning the case, when he made the following asinine statement in a commencement speech at his alma mater, Dickinson College:

.....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. (emphasis added)

And while speaking those words, Judge Jones was standing behind a lectern that had the college seal in front. The college seal -- designed by the founding fathers who started the college -- has a picture of an open bible and the Latin college motto which means, "Religion and learning, the bulwark of liberty."

I guess that Judge Jones decided that his above statement went over like a lead balloon.

Judge Jones' paranoid claims that he is a victim of threats to judicial independence trivialize the real threats to judicial independence. One of these real threats is so-called "jurisdiction stripping" -- legislative acts which attempt to remove the powers of the courts to hear certain kinds of cases. I consider federal court jurisdiction over all constitutional cases to be one of the foundations of our systems of checks and balances. The counterbalances of this judicial power are the power of Congress and the states to amend the Constitution and -- in extreme cases -- the power of Congress to impeach judges and remove them from office. Though the Constitution expressly gives Congress the power to limit the appellate jurisdiction of the Supreme Court, IMO there is nothing in the Constitution that explicitly or implicitly gives Congress the power to limit the jurisdiction of the lower federal courts, though it is widely believed that Congress has such power. A lot of judges and other public officials just make up rules that have no basis in the letter or the spirit of the Constitution.

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Judge Jones hides behind "judicial independence" issue

I have confirmed that there will be a "dialogue" session for Judge John E. "I am not a lousy judge" Jones III at Kansas University on Sept. 27, following his speech on Sept. 26. This speech and dialogue are part of a series called "Knowledge, Faith and Reason."

The title of his Sept.26 speech is, “Judicial Independence and Kitzmiller v. Dover et al.” I suspect that this speech will just be a rehash of his speech on the same subject at a national executive committee meeting of the Anti-Defamation League. In the whole speech to the ADL, he cited only one criticism that could be considered to be an attack on judicial independence:

Ms. Schlafly authored a January 2006 column and within her column she noted that, and I'm quoting here, that I "owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002" and that I, I'm still quoting here, "stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District."

In the context of her January 2006 column, Schlafly's above statements could be interpreted as meaning that she only expected Judge Jones to be fair rather than expecting him to be biased in favor of her opinions. However, I cannot defend her judicial philosophy in general, because she supported House bills withdrawing federal court jurisdiction over the Pledge of Allegiance and the definition of marriage (she was right about one thing -- Article III of the Constitution does give Congress the right to restrict appellate jurisdiction of the Supreme Court over certain kinds of cases).

Anyway, Judge Jones is obviously trying to discredit legitimate criticism of his Kitzmiller decision by falsely characterizing all criticism of the decision as being against judicial independence.

A related article on this blog is "False stereotyping of criticism of Judge Jones".

My very first article on this blog contains 20 criticisms of Judge Jones' rulings in the Kitzmiller v. Dover case. A total of about a dozen articles on this blog -- about 10% of the total -- are devoted to criticizing him and his decisions. BTW, most of my criticisms of Judge Jones do not concern his rulings regarding the scientific merits of ID and irreducible complexity but concern his procedural rulings in Kitzmiller and his judicial philosophy. Anyway, the KU dialogue session is scheduled to last only 1½ hours and I think that he will probably steer it in the direction of the scientific merits of ID and irreducible complexity -- even though that is not the subject of the preceding day's speech -- because that is the area where he is least vulnerable because of the great complexity of the issues involved.

Why I changed Judge Jones' sobriquet from "I am not an activist judge" to "I am not a lousy judge":

In the conclusion section of the Kitzmiller opinion, Jones said,

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court.

Then later, he said on a radio talk show, "People term 'activist judges' judges they don't agree with." So why would he assert in the Kitzmiller opinion that he is not an "activist judge" if he thinks that the term only means that some people disagree with him? He might as well have asserted in the Kitzmiller opinion that he is not a "lousy judge." So my sobriquet for him from now on will be "I am not a lousy judge."

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