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Editor: Mitchell H. Rubinstein
New York Law School

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Friday, December 19, 2014

Judge Edwards on Law Reviews

The Virginia Law Review has published "Another Look at Professor Rodell's Goodbye to Law Reviews" by Judge Harry Edwards (D. C. Circuit) in its November 2014 issue.   Michael Dorf (Cornell) added his thoughts here.

Craig Estlinbaum

December 19, 2014 in Judges, Law Professors, Law Review Articles | Permalink | Comments (0)

Tuesday, April 29, 2014

Tennessee: Judge's Facebook Use Does Not Lead To Recusal

Tennessee v. Madden, No. M2012-02473-CCA-R3-CD (Tenn. Crim. App., March 11, 2014), involves a second degree murder prosecution in which the defendant was a Middle Tennessee State University ("MTSU") student and the victim was a member of the MTSU women's basketball team.  During the case, the defendant moved to recuse the judge presiding because that judge had a "substantial and material connection" to MTSU.  Defendant noted the judge had 205 Facebook connections to individuals at MTSU, including with the head women's basketball coach, a witness in the case.  Defense counsel said he was not able to affirm whether the judge visited any particular Facebook pages.  The judge unfriended "numerous" MTSU connections after counsel filed the recusal motion.  The judge stated during the hearing, "[t]o be quite honest I didn't think my Facebook page was public" and that he originally believed defense counsel "hacked into my account or got somebody to pretend to be my friend and went through all that stuff."

The appeals court affirmed the trial judge's denial of the motion to recuse, but not without important comment.  First, the appeals court described a heated exchange between the trial judge and the defense attorney that culminated with the judge, "chastis[ing] defense counsel for, among other things, "filing a motion that called into question the people's faith in the judicial system and 'dimishe[d] our entire court system."  The court affirmatively stated it did not condone all that transpired below when the record showed defense counsel was merely advocating zealously for his client.  The court, however, conclude the "defendant...failed to identify any concrete manner in which she was disadvantaged by any bias on the part of the trial court."

The appellate court added (internal citations omitted):

If the public is to maintain confidence in our system of justice, a litigant myst be afforded the "cold neutrality of an impartial court."  The overall tenor of some of the questions asked and statements made by the trial court to defense counsel during the hearing concerning the defendant's recusal motion reveal that the trial judge was upset, perhaps because he felt that defense counsel had violated his privacy by visiting his Facebook page (and the pages of individuals listed as his "friends" on that page).  However, the record reflects nothing other than zealous representation on the part of defense counsel.

...When engaging in physical and on-line contact with members of the community...judges must at all times remain conscious of the solemn duties they may later be called upon to perform.  Perhaps someday, our courts will follow the lead of Maryland, which has concluded that its judges must accept restrictions on online conduct that might be viewed as burdensome to ordinary citizens and prohibits the "friending" of attorneys and witnesses likely to appear before a judge.  In the meantime, judges will perhaps best be served by ignoring any false sense of security created by so-called "privacy settings" and understanding that, in today's world, posting information to Facebook is the very definition of making it public.

One judge concurring noted that a month earlier, the court held that a judge's Facebook friendship with a confidential informant did not require recusal where the record failed to show the length of the Facebook friendship or the extent or nature of their interaction.  The concurring judge also wrote, "In this case, although one Facebook 'friendship' was sufficient to scruitinize the judge's impartiality, the record does not demonstrate more than a "virtual" acquaintance between the trial judge and the prospective witness."  Judges should strongly consider whether or not such scrutiny is best left uninvited. 

See Also:

Craig Estlinbaum

April 29, 2014 in Ethics, Judges, Technology | Permalink | Comments (0)

Thursday, March 13, 2014

Judicial Campaigns, Facebook and the Appearance of Impropriety

A committee supporting a trial judge's re-election creates a Facebook page supporting the campaign.  That page allows the judge's supporters and others in the community to post comments on the page, including comments on pending cases.  Attorneys in one such case move to disqualify or recuse that judge because comments posted on the campaign's page by others -- not the judge and not the parties or their attorneys -- about the pending case "gives the appearance of impropriety and a lack of impartiality."  What is the result?

Earlier this month, a three-justice panel from the New Mexico Supreme Court denied a motion to disqualify a judge under such circumstances in a civil case.  A New Mexico company, Valley Meat Co., filed the motion to disqualify after the judge granted the Attorney General's application for temporary restraining order preventing Valley Meat from opening a horse slaughterhouse facility near Roswell.  According to the reports, the Attorney General sought to block the slaughterhouse from opening because of "food and water safety concerns and unfair business practices."  Valley Meat sought to disqualify the judge because of comments posted by horse slaughter opponents on a the judge's election campaign Facebook page.

Writing about the case in February, Scott Sandlin of the Albuquerque Journal News examined some implications associated with increased social media use by judges  and also provided greated back story to this case and Valley Meat's motion to disqualify.  The panel's order itself does not appear to be available online at this time.

Several states and the American Bar Association have pubished opinions relating to social networking by judges.  Little attention has been paid in these opinions to when, if at all, judicial campaign activity intersects with judical ethics restrictions on social media use.  As judicial elections utilize social media in greater numbers, expect to see more cases like this New Mexico case arise.

See Also:

Craig Estlinbaum

March 13, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Wednesday, March 12, 2014

Facebook Friendship Leads to Disqualification

A Fresno, California judge has disqualified himself from a civil case after the trial's conclusion but before signing the final judgment following his admission that he was Facebook friends with an attorney in the case.  The Fresno Bee reports:

The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.

Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.

The story suggests that prior to trial commencing, the judge revealed to all parties that he was friends with the plaintiff's attorney.  No party lodged an ojection to the judge presiding upon that revelation.  However, the judge failed to disclose his Facebook friendship until after he ruled for the plaintiff, who was represented by his Facebook friend, in a non-jury trial.  In the defense motion to disqualify, defense counsel claimed that the judge's relationship with plaintiff's counsel was "was closer than had been previously disclosed by Judge Hamilton," and that had the Facebook connection been disclosed, defendant would not have waived a jury trial.

Notably, California Judge's Association Judicial Ethics Opinion No. 66 (2010) relating to judicial use of social networking states:

When a judge learns that an attorney who is a member of that judge’s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be“unfriended”) and the fact this was done should be disclosed ... Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts.

See Also:

Craig Estlinbaum

 

March 12, 2014 in Ethics, Judges, Lawyers, Legal News | Permalink | Comments (1)

Wednesday, February 12, 2014

Georgia: Legal Ethics & Professionalism Symposium

The University of Georgia School of Law is hosting its 14th Annual Legal Ethics & Professionalism Symposium on February 21, 2014, at the law school campus.  The symposium is titled, "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench."  Here is the description from the symposium website:

This annual legal ethics symposium is titled "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench." Members of the judiciary are facing increasing ethical challenges and being subjected to enhanced scrutiny as a result of the changing dynamics of both their jobs and the legal profession more generally.  During this symposium, an impressive lineup of judges, attorneys and professors will examine three important areas in this regard: (1) judicial elections and their effect on the decision-making process; (2) collegiality, decorum, and civility between the bench and the bar; and (3) the process, results, and aftermath of investigations into alleged judicial misconduct.

Here is the link for registration and program information.

Craig Estlinbaum

February 12, 2014 in Conferences, Faculty, Ethics, Judges | Permalink | Comments (0)

Wednesday, February 5, 2014

Washington Senate Considers Shrinking State Supreme Court

From yesterday's Spokane Spokesman-Review:

A plan to shrink the state Supreme Court by two justices was praised Monday by some as a money-saver and criticized by others as payback for decisions some legislators don’t like.

The proposal, sponsored by state Sen. Mike Baumgartner, R-Spokane, would cut the nine-member court to seven. It moved out of the Senate Law and Justice Committee on Monday on a voice vote, giving it a chance for a vote by the full Senate in the coming weeks.

The article suggests this proposal has picked up steam in the legislature following a recent high court decision ordering the Legislature to spend more money on public schools.

The legislature notes that more populus states California and New York get by with seven high court justices.  On the other end of that spectrum, Texas leads the nation with 18 high court judges, with there being two high courts (one civil, one criminal) with nine judges each.

Craig Estlinbaum

February 5, 2014 in Judges, State Law | Permalink | Comments (0)

Tuesday, February 4, 2014

Judge Is Disqualified After Sending Litigant a Facebook Friend Request

A Florida appellate court recently held that a motion to disqualify a judge should be granted where the judge in a divorce proceeding, sent a Facebook friend request to a litigant in the proceeding and the litigant refused the request.  The case is Chace v. Loisel, No. 5D13-4449 (Fla. Dist. Ct. App., January 24, 2013).

In this case, the judge, during the divorce proceeding, "reached out" to the party by making a Facebook friend request.  The party declined the request.  That party later claimed the judge retaliated against her by awarding her most of the marital debt.  The party filed a motion to disqualify which the trial court denied.

The appellate court wrote:

It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook  “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Florida Judicial Ethics Advisory Committee Opinion 2009-20 provides that by designating an attorney as a Facebook friend, a judge, "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge."  Florida takes a restrictive approach to judicial use of social media so the outcome in this case is not surprising.

Craig Estlinbaum

February 4, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Sunday, November 17, 2013

Facebook and Judges

In a recent Texas Court of Appeals decision, the court found that a mere Facebook friendship does not amount to a lack of impartiality by judge. The case is Youkers v. State, 2013 WL 2077196 (Tex. App.—Dallas May 15, 2013). In that case, the assault victim’s father was Facebook friends with the judge presiding over the trial.

Certainly, a Facebook friendship with a judge raises an eyebrown of suspension and it would seem that the better practice would be for judges to recuse themselves from such cases.

Mitchell H. Rubinstein

Update:

Craig Estlinbaum also ran an excellent story about this case, here. 

 

November 17, 2013 in Judges | Permalink | Comments (0)

Thursday, July 25, 2013

Blogging Judges

Robert J. Ambrogi at Law Technology News has posted "Blogging From The Bench" on blogging judges and justices.  Ambrogi himself blogs here and here.

Craig Estlinbaum

July 25, 2013 in Articles, Blogs, Legal, Judges | Permalink | Comments (0)

Thursday, June 13, 2013

Judge removed from his position for cause notwithstanding his earlier resignation from the position

A former Judge [Judge] appealed a determination of the State Commission on Judicial Conduct in which the Commission had sustained a single charge of judicial misconduct against him and determined that he should be removed from office (see NYS Constitution, Article VI, §22; Judiciary Law §44[1]).
The Judge had earlier resigned from his position after admitting to certain conduct that he characterized as “indefensible” that occurred 40 years earlier.
Notwithstanding the Judge’s resignation, the Commission continued the proceeding and ultimately sustained the charge*and ordered Judge’s removal, finding that his admission, standing alone provided a sufficient basis for the determination.**
Citing Matter of Going, 97 NY2d 121 and Matter of Aldrich, 58 NY2d 279, the Court of Appeals affirmed the Commission’s action, explaining that it measures “the necessity for removal ‘with due regard to the fact that judges must be held to a higher standard of conduct than the public at large’ as even ‘relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke, it is essential that we consider’ the effect of the Judge's conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament."

The Court said that it agreed with the Commission that Hedges' admissions, by themselves, were sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore, said the court, rendered Hedges unfit for judicial office.
Noting that “[I]t is troubling that the petition is based solely on conduct that occurred 40 years ago —- 13 years before [Hedges] was elevated to the bench,” the Court of Appeals said that the misconduct alleged is grave by any standard.
Accordingly, said the court, the determined sanction of removal should be accepted and Judge removed from the office of Judge.
* Two Commission members dissented in part on the ground that Judge had removed himself from his judgeship by resigning and that his post-resignation removal proceedings "served no purpose" in this case.
** Similarly, 4 NYCRR 5.3(b) of the State Civil Service Commission’s Rules, which applies to employees of the State as the employer, provides, in pertinent part, “…when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation.” Many local civil service commissions have adopted a similar provision.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

June 13, 2013 in Employment Law, Judges | Permalink | Comments (0)

Thursday, May 23, 2013

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

May 23, 2013 in Ethics, Interesting Cases, Judges, Recent Developments, Texas Law, Web/Tech | Permalink | Comments (0)

Saturday, April 20, 2013

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

  1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
  2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
  3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

April 20, 2013 in Criminal Law, First Amendment, Interesting Cases, Judges | Permalink | Comments (0)

Monday, March 18, 2013

SMU Law: Federal Circuit and Patent Law Symposium

The SMU Dedmon School of Law will host its 10th Annual Symposium on Emerging Intellectual Property Issues on March 22, 2013, with a presentation titled "The Federal Circuit and Patent Law."  The one day symposium includes four panel discussions - The Federal Circuit's Stewardship of Patent Law: A View from the Bench; Institutional Roles: The Federal Circuit and the Supreme Court; Allies or Competitors: The Federal Circuit and the U.S. Patent and Trademark Office; and Innovation, Disruptive Technologies and the Federal Circuit.  Bernard J. Knight, Jr., General Counsel, U.S. Patent and Trademark Office is scheduled to deliver the luncheon and keynote address.  A complete brochure for the symposium is here.

Craig Estlinbaum

March 18, 2013 in College Professors, Conferences, CLE, Conferences, Faculty, Federal Law, Judges, Law Professors | Permalink | Comments (0)

Friday, September 21, 2012

Florida: Facebook Friendship Leads to Judicial Disqualification

Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.

In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends.  The trial judge denied to motion as legally insufficient.

The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend.  The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge."  The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.

The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.

To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media.  The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.

Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances.  The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.

Craig Estlinbaum

September 21, 2012 in Ethics, Interesting Cases, Judges | Permalink | Comments (1)

Thursday, August 2, 2012

Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office

 

Matter of Young, 2012 NY Slip Op 05089, Court of Appeals
The State Commission on Judicial Conduct sustained six charges of misconduct alleged against Lafayette D. Young, Jr., a Justice of the Macomb Town Court, St. Lawrence County, finding that he had engaged in serious misconduct when he presided over matters involving persons with whom he and his paramour had close relationships. The Commission determined that Judge Young should be removed from his office.*  
The Commission found that “In all cases, but one, [Judge Young] neither disqualified himself nor disclosed [his] relationship to the defendant or complaining witness. Additionally, in many of the cases at issue, Judge Young’s conduct gave the appearance of favoritism towards the Petrie family defendant or complaining witness.”
Moreover, the Court of Appeals said that  "ex partecommunications with[certain] parties further exacerbated Judge Young's improper conduct as they highlight his close relationships to the Petrie family and his partiality towards them."

Holding that "Such conduct demonstrates a misuse of his judicial office and damages public confidence in his integrity and impartiality," the Court of Appeals sustained the sanction imposed by the Commission: that Judge Young, removal from his position, as the appropriate penalty under the circumstances.
* See New York Constitution, Article VI, § 22; Judicial Law §44
The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05089.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

August 2, 2012 in Judges | Permalink | Comments (0)

Sunday, February 12, 2012

Special Education IHO Falls Asleep During Hearing

Sleeping Special Education Judge Resigns under Fire: MyFoxHOUSTON.com

 

 Sometimes you just cannot make these facts up. A Houston Special Education Impartial Hearing Officer feel asleep during the middle of a hearing. What is more amazing is that it was caught on tape. He has since resigned. Details here

Mitchell H. Rubinstein

February 12, 2012 in Education Law, Judges | Permalink | Comments (1)

Saturday, August 21, 2010

10 Unforgettable Judges

Court Reporter School, a commercial site, posted a list of 10 unforgettable Judges. There are some surprises on list list including Rehnquist and Burger-but the list includes some pictures and is an interesting read.

Mitchell H. Rubinstein

Hat Tip: Ava Moore

August 21, 2010 in Judges | Permalink | Comments (1)

Wednesday, June 9, 2010

Judges and Mandatory Retirement

Nine States Report Considering Changes to Mandatory Judicial Retirement Policies is an interesting April 15, 2010 New York Law Journal article (registration). Justice Stevens' retirement from the Supreme Court at age 90 just highlights how outdated state mandatory retirement laws are for judges.

Some of you might be thinking that the ADEA outlawed mandatory retirement. So how can judges be forced to retire at a certain age? The answer is quite simple. There is an exception in the ADEA for judges. For readers who may not be familiar, federal judges are appointed for life, but state judges are not. The article describes judge mandatory retirement rules in part as follows:

Twenty states now require retirement at age 70; four at 72; two at 74, and six at 75. Vermont is the only state with a mandatory retirement age of 90 for a state Supreme Court justice.

If applied to the U.S. Supreme Court, those states' retirement rules would force from the bench not only Justice Stevens, but also Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer.

In 2009, the center reported, Kansas increased the age at which their justices must retire to 75 from 70, and South Dakota's House of Representatives also approved an increase to 75 from 70.

Nine other states have recently considered or are considering legislation to increase or eliminate mandatory retirement, although none is apparently close to passage.

Mitchell H. Rubinstein


June 9, 2010 in Judges | Permalink | Comments (0)

Thursday, April 29, 2010

Obama Nominates Openly Gay Male To Circuit Court

The ABA Journal News Now recently reported that President Obama nominated the first openly gay male to a federal circuit court. As the posting states:

The nominee, Edward DuMont, is the first openly gay person to be nominated to a federal appeals court, according to Metro Weekly and the Keen News Service. DuMont indicated his involvement in gay and lesbian groups in his Senate Judiciary Committee questionnaire.

Mitchell H. Rubinstein

April 29, 2010 in Judges | Permalink | Comments (0)

Monday, April 5, 2010

Judges and Google

Our sister blog, Legal Writing Prof Blog, has an interesting story about a case involving a judge who googled a search term about a defendant during a criminal trial. In a nutshell, the Second Circuit held that the judge did not act improperly. As the blog posting states:

On appeal, the Second Circuit vindicated the trial judge's impromptu factual investigation by concluding that:

[The Judge's] use of the Web was merely the electronic equivalent of what a judge in an earlier era would have done: gone to a local department store to confirm in person the "common-sense" belief that a variety of yellow rain hats, like that worn by a bank robber, can be purchased.

As 'broadband speeds increase and Internet search engines improve,' judicial use of computers is only likely to increase, the court said.

'As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that,' the court held. 'More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed.'

Mitchell H. Rubinstein

April 5, 2010 in Judges, Technology | Permalink | Comments (0)