Wednesday, August 02, 2006

Lawyers and Lyrics 

I have much to say about this article in the Minnesota State Bar Association magazine, Bench and Bar. Let's start with some quotes from the article by Attorney Karna Peters.

We've all been hearing increasingly hostile political rhetoric about the judiciary. "Activist judges" is a phrase commonly heard. Another expression, less loaded but still suggesting general distrust of the judiciary, is "let's keep this out of the hands of the judges." Even the words "judicial independence," which most lawyers recognize as shorthand for an essential pillar of our system of constitutional checks and balances, are now heard by many people to mean "judicial arrogance" the idea that judges are somehow making decisions without regard to the law, with no ccountability. (footnote omitted)

How do we respond? My guess is that so far, most lawyers have simply let it blow by. Many of us are naturally reticent about wading into political waters. We know that such rhetoric has been used by partisans in our State Legislature and the United States Congress, and by President George W. Bush.

* * *

Our Rules of Professional Responsibility suggest that we do need to respond to the hostile rhetoric, in order to defend the judiciary against unjust criticism.

Rule 8.2(a) of the Minnesota Rules of Professional Conduct prohibits a lawyer from making a statement "that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or of a candidate for election or appointment to judicial or legal office." This language suggests that lawyers should not be casting aspersions on judicial integrity by saying we cannot trust judges.

* * *

What are the consequences if we don't speak out? The first and obvious consequence is that Minnesota's judiciary will be at risk of being taken over by partisan judicial politics. In other states, this has led to corruption. (footnote omitted) We can explain the risks to people this way: do you want judges to make decisions based on the facts and law of your case, or do you want judges to make decisions based on whether you are on the list of their campaign contributors?

We also need to consider a less obvious potential consequence of our failure to counter hostile rhetoric. By failing to respond we may tacitly encourage physical threats and violence to judges, as well as those around them.

* * *

So what do these already angry people think when they hear a phrase like "activist judges?" It could legitimize their anger, and trigger an offshoot of anger --vengeance. People are more likely to act out of vengeance if they believe that ordinary rules have broken down or are not being followed. Think of "vigilante justice." (footnote omitted) If people already angry at judges hear rhetoric suggesting that judges are arrogant and not following the rules -- in essence, that the rule of law has broken down -- they may be more likely to act out against judges (or possibly others), and to take the law into their own hands.

And then what if these same angry people hear the phrase "activist judges" from their church pulpit or from TV evangelists? Will this give them the idea that the vengeance response is not only legitimate, but sanctioned by a church or religion?

* * *

Look at the plot discovered this April in Rice County, Minnesota. Two brothers were threatening a Rice County district judge, an assistant county attorney, and a sheriff's deputy, all of whom participated in a 2004 drug case involving one of the brothers. The brothers plotted to blow up the Rice County Courthouse and law enforcement center, and they had the means to carry out their plan: two propane tanks filled with explosives and fertilizer.

* * *

The explosives in the Rice County plot were similar to those used to blow up the Alfred P. Murrah Federal Building in Oklahoma City 11 years ago. One hundred sixty-eight people died in the Oklahoma City bombing, including federal employees and 19 children in a day care center located there

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The title of one of Flannery O'Connor's short stories, which often deal with violence, ought to give us impetus: "The life you save may be your own."

Wow. Where do I begin?

1. I wonder what Ms. Peters thinks about the criticism of the ruling in RPM v. White. Could that criticism (by her political allies) lead to violence?

2. Would she agree that Ozzie Osbourne is responsible for teen suicide, or that Marilyn Manson was responsible for Columbine?

3. Timothy McVeigh was mad about, among other things, Ruby Ridge and Waco. He was mad at government generally, not judges. In fact, a judge ignoring the law would probably be a hero to those militia types. Should we have criticized the government's handling of those two incidents? Did that criticism cause McVeigh to do what he did?

4. Judicial activism is a real concept. Some lawyers and judges embrace the label as a way to effect positive social change. Here is an e-mail I wrote to Vance Opperman a few years ago.

On the most recent (Face to Face) program, Mr. Opperman criticized the U.S. Supreme Court's decision in Bush vs. Gore as "activist." Many people this term incorrectly to describe every court decision they disagree with. The real meaning of judicial activism is essentially that a court has usurped the role of the political branches of government. Defenders of judicial activism will argue that un-elected judges are in the best position to defend the rights of minorities. They contend that this is crucial to our system of checks and balances. The main issue in Bush vs. Gore was whether the judicial branch or the political branch had the authority to oversee Florida elections. One can disagree with the U.S. Supreme Court's decision, but it was not activist.
Peter A. Swanson
Plymouth, MN

His response (which is no longer on my hard drive) was something about the U.S. Supreme Court overruling a state court on a matter of state law. But the point is that even a true blue liberal can criticize judicial activism.

5. Under the various rulings in RPM v. White, judicial candidates still do not know the identity of their contributors. The issue in the most recent case was whether candidates could sign their own letter to potential donors, rather than having a surrogate do it.

6. Peters is quite willing to accuse judges of corruption, as long as they reside in another state. Saying that "you can't trust" judges is not to accuse them of corruption. It is saying that one cannot predict how a judge will rule. The same wisdom goes for juries. The local Minnesota ACLU took on a case in the 1990s about a lawyer who, after losing a case, wrote to his client something along the lines that "some judges are just pro-defense." I verified the basic facts of this case with a lawyer involved and an ACLU employee at the time. The lawyer was facing sanctions for being disrespectful to the "pro-defense" judge. Set aside the fact that there may have been sour grapes involved. The idea that a lawyer may not share candid opinions about the leanings of a specific judge is frightening. But that is where the Bench and Bar article seems to suggest we are headed. How did anyone find out about the "pro-defense" comment? The lawyer and client were involved in a fee dispute where the correspondence was disclosed. Not very wise to put that in writing, but that is another post for another day.