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June 13, 2007 03:02 AM UTC
14 Comments
How about that –I guess I’ve happened upon a bit of contraband, then. Check this memo, a memorandum from a division clerk to his district court judge and regarding a pro se litigant’s efforts to unseal a domestic case that had been sealed by this same judge. The clerk wrote, “if you ignore problems long enough, they often go away,” and attached an order he had drafted for the judge to sign. (He scribbled on the memorandum, “I wrote an order -see if you like it.“)
These assholes take the cake!
He certainly is qualified for the bench, having acted as a judge, drafting orders and making cans of worms go away, when he wasn’t even a judge yet.
It’s a perfunctory part of the job descript. They draft orders. In fact, in appellate courts, they often draft the opinions, which are signed off on by the “authoring judge.” Check with Rio Grande –it came out of one of his ancient cases. He’ll know where this guy is.
A judge’s assistant actually assists the judge with writing orders and/or opinions!? Gosh, almighty! Stop the presses!
Well that depends. Here, you’re portraying ghostwriting practice as “assisting” the judge with writing orders and/or opinions. I think –and I guess I’m all alone on a limb here– that judges should be writing judicial opinions and orders, not recent law school grads. After all, if their all so overworked, as they frequently bitch and complain, then it’s reasonable to question (if not assume) that they have insufficient time to review and rewrite, if necessary, the proposed order/opinion. Hell, we know from the Harrington case that the Tenth Circuit judge, paid $175K a year, didn’t read any of the principal briefs (not even the defendants’). How do “we” know this? Well, that would be the subject of an entire separate diary entry. May I spare you?
When a case is assigned to a panel and the opinion issues the very same day, it is fair to say that the judges on the panel haven’t even read the opinion — to say nothing of editing it for content or reading the briefs to ensure that the clerk got it right.
If that is the quality of work you are prepared to accept in the resolution of our disputes, we may as well outsource our entire dispute-resolution system to India. I, for one, find that practice absolutely indefensible.
Chief Justice Marshall would probably have those judges shot for treason to the Constitution (he used those precise words), and he would be justified in so doing. At very least, Michael McConnell should be impeached and imprisoned.
The “problem” that went away was whether to unseal the papers that were sealed at Mr. Larson’s request. Later, Mr. Larson agreed that should be unsealed. Thus, the question of whether the papers should be sealed went away when the party who wanted them to be sealed agreed that the papers should be unsealed. Sounds perfectly reasonable to me. Is this supposed to be a smoking gun of some type?
The point was –and I can’t fault you, b/c you weren’t privy to all the details (at least, I don’t think you were. BTW, is your name Todd?)– that Smith had filed his motion long, long before and it was disregarded (in violation of that forgotten, little-known statute C.R.S. 13-5-125, I might add). In other words, at the clerk’s discretion, he sat on the motion for months, hoping that Smith would forget about it, give up on it or whatever.
Why not just deny the friggin’ Motion *if* there was a valid legal or discretionary basis to do so? Remember Colorado’s Equality of Justice guarantee? Truth is, that “guarantee” is discretionary, too (hearkens to the ol’ because-I-said-so doctrine (i.e.,“capricious and arbitrary”)).
Larson was refusing to comply with discovery, and Judge Christopher Munch (who later recused himself, after evidence was produced suggesting that he took a bribe) didn’t do what he was legally obliged to do (Larson claimed that I fabricated his income figures, which were taken directly from disclosures in his divorce). So, I filed a motion to unseal his divorce file, using the motion by one of our TV stations in the Benson case as a template (I think it was DG&S that sent me everything I needed). Larson filed for a delay; I objected, and the court sat on it for an inappropriate length of time before Larson — who knew that he would lose — finally relented.
It’s significant to Tilt’s case, insofar as it proves that the judges in the First District often compare notes and cut deals behind the scenes. It is also important to note that Carlos Samour, who sat on both my Inquiry AND Hearing Panels in open violation of Rule 201.8, was one of Munch’s law clerks.
What’s a little corruption between colleagues?
. . . was created by an attorney from Michigan at my invitation. I certainly didn’t direct (or even suggest) the attorney what topic to post but, invited the attorney to contribute, because of the attorney’s extensive Colorado litigation experiences.1
Nevertheless, it occured to me that the post is particularly relevant to one ongoing case and presents a unique opportunity, as I will explain in a moment. Before I get to that, I need to mention on of Rio’s recent cases, which resulted in the “opportunity”: Smith v. Tenth Circuit Court of Appeals This particular Smith case was a challenge to the practice of issuing unpublished opinions as a way to suppress justiciable controversies (as we saw in the recent Harrington v. Wilson case) or to do a half-ass job on moving appeals through an assembly line without care and without accountability (no meaningful reasoning, no one can cite the case, etc.). The trial court addressed this challenge by finding that, among other things, the unpublished opinions that Smith was complaining of were from cases that are now closed and that his claims of injury were speculative and, therefore, there is no controversy and he, therefore, has no locus standii (legal standing –the same as was used to preclude the attorney/doctor/non-custodial father, Michael Newdow, in Elk Grove Unified School Distr. v. Newdow, 542 U.S. 1 (2004) from pressing his pledge case before the U.S. Supreme Court).
However, if I read the Smith decision correctly, the court did something very interesting: In its effort to limit Smith’s standing, the panel not only issued the opinion as a published opinion (so that he couldn’t complain of injury by an unpublished opinion and had no standing to sue on that issue) but it chided him for failing to raise this new issue in a Petition for Rehearing en banc in one of his earlier (now closed) cases.2 In other words, the Tenth Circuit appears to have provided a prescription for litigants, who want to challenge unpublished opinion practice, and that prescription is:
Well, as it so happens, the plaintiff in Harrington v. Wilson is not only in a position to raise this argument in a Petition for Rehearing en banc but, he also has standing, under the Tenth Circuit’s new deisgner law, to file a new suit, because the unpublished decision in that case issued forth on June 7th and the Petition for Rehearing is due fourteen days later.
Although Oh-Wilike seemed to think Smith’s challenge was without merit, it certainly isn’t novel. A whole crapload of professors have written for and against the practice of issuing unpublished opinions. See here (collecting law review articles).
In summary, this situation seems to have created an opportunity for enterprising attorneys and/or law professors to use the Harrington case and press the issue of unpublished opinions in the Tenth Circuit and elsewhere. Attorneys or law professors interested in tackling the issue should drop a line to: “tipLine” at KnowYourCOURTS.com.
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1 I’m being intentioanal vague here, because it’s up to the poster to further establish identity.
2 For those unfamiliar with appellate principles, this is especially novel, becuase an appellant ordinarily cannot raise any issue that wasn’t argued before the trial court (if he does, it is subject to the virtually impossible “plain error” doctrine).
In federal court even the “nonprecedential” opinions are published, and private parties aren’t prohibited from disclosing unpublished opinions in state court. Also, “nonpredecential” opinions may be cited in federal court, even if they aren’t binding. And, a bad appellate opinion is subject to further appeal in most cases.
Prosecutor’s decisions are far more secretive and involved far less disclosure than those of judges, who must justify their decision in some sort of written order. Decisions to prosecute or not to prosecute are also almost never subject to appeal, although prosecuted cases must obviously be proved if there isn’t a plea bargain.
Parole board decisions also tend to be far less well documented and justified, moreover the supposedly public hearings are not always made open to the public. These decisions are also rarely subject to review.
Congress often writes laws behind closed doors without even an acknowledgement of who drafted the legislation, let alone the reasons behind it. Colorado’s General Assembly is better, but still includes plenty of back door deal making and thin legislative histories. These laws can be struck down for unconstitutionality, but not for being factually or legally misguided.
. . . I’m just not sure what it is. If this issue was a non-issue, there wouldn’t be fifty articles on it by reputable law professors.
Sure federal circuit opinions aren’t “secret.” I never said they were. In fact, you can go right to the Tenth Circuit’s site and read them all day. And, sure you can cite to them –just not rely on them as authoritative for anything.
My point is that non-precedential unpublished opinions are used as a way of either (a) doing a half-ass job on an appellant’s case; or (b) deviating from the established law in that person’s case only (the because-I-said-so doctrine), without changing the law.
If you’re actually looking for it, it is really quite easy to find judicial corruption and sloth — it is indeed pandemic. But most of the people with the requisite skill (such as you) are highly motivated not to find it, because they benefit from the continued corruption. (Lawyers are conclusive disproof of evolution, as they demonstrate that it is nearly possible to be sentient without benefit of a spine.) As reporters rarely have the requisite technical skill to ferret these crimes out, they continue unabated and go unpunished. The blood is on your hands, Andy.
Thomas Jefferson pointed this out two centuries ago: Most of what judges do to subvert the Constitution happens below the radar:
–Thomas Jefferson to A. Coray, 1823. ME 15:486, reprinted at http://etext.virgini…
Corrupt judicial decisions are particularly pernicious, as judges tend to protect the institution and are thus loath to correct them. Jefferson wrote:
–Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283