Archive for the ‘On Judges’ Category

In some parts of the world, the first day of May is May Day or International Workers Day. But thanks to a proclamation during President Eisenhower’s administration, May 1st in the U.S. is Law Day. It’s meant as the day each year to celebrate the rule of law in society. So quite appropriately comes a timely news story to momentarily ease the otherwise burdened cynical heart.

The salutary tonic is administered through the story of Judge Lou Olivera, a North Carolina District Court jurist, whose extraordinary compassion provides the welcome antidote. This past April 13th, Judge Olivera sentenced former Green Beret Joseph Serna to spend 24 hours in jail for a probation violation. Serna is a retired Army veteran who served almost 20 years. Deployed four times to Afghanistan, he earned three Purple Hearts and was almost killed three times. But since leaving the service, Serna has struggled with post traumatic stress disorder (PTSD).

To cope, Serna has self-medicated with alcohol. As a consequence, he has run afoul of the law. Having violated his probation with a DUI, he appeared in Judge Olivera’s courtroom last month. Judge Olivera, himself a Gulf War veteran, runs the county’s Veterans Treatment Court.

“I gave Joe a night in jail because he had to be held accountable,” the judge later explained. But concerned that sentencing Serna in isolation for a night would trigger his PTSD, Judge Olivera did something truly remarkable. He decided to spend the night with Serna in the one-man cell. They spent the time talking about their military experiences. Serna said it felt like “a father-son conversation.”

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https://upload.wikimedia.org/wikipedia/commons/thumb/c/cf/A_Wilde_time_3.jpg/320px-A_Wilde_time_3.jpgOscar Wilde said he loved “talking about nothing. It is the only thing I know anything about.”

This week I shook my head reading that the Hon. Jonathan Lippman, former chief judge of New York’s highest court and who spent 43 years as a state court employee but never a year in private practice as a lawyer had taken a job with worldwide law firm behemoth Latham & Watkins LLP — in their New York office, of course. Judge Lippman is best remembered for his 2012 mandate that lawyers work 50 hours for free before being licensed to practice in New York.

http://images.nypl.org/index.php?id=834254&t=w New York became the first to compel pro bono work from lawyers. And it still fries my Arizona bacon. Last time I checked physicians, dentists, architects, pharmacists, engineers, accountants and other professionals have yet to acquire the special snowflake status of lawyers requiring them to provide free services as a precondition to practice their chosen professions. When altruism is coerced — not only is it no longer selfless — it is a tax.

Naturally, for proponents it’s nothing of the sort. It’s not compulsory charity but professional responsibility. Moreover, court cases dating back decades seem to back them up. Those decisions have held that lawyers as officers of the court aren’t protected by the 5th Amendment’s Takings Clause and are instead duty-bound to render service when ordered by court appointment.

https://upload.wikimedia.org/wikipedia/commons/thumb/a/a1/Guercino_God_the_Father.jpg/275px-Guercino_God_the_Father.jpgIn the Empire State, then, as the former chief judge proclaimed at the time from his seat on high, “If you want the privilege and honor of practicing law in New York, you’re going to have to demonstrate that you’re committed to our values.” 

One more burden on the uninitiated.

There are no limits apparently to the belief that ‘To whom much was given, much will be required’ even when the much that’s been given includes staggering law school debt. And never mind that law school graduates in New York and elsewhere at a time of dismal job prospects for lawyers still can’t find good paying jobs as lawyers much less pay down hellacious debts.


While New York’s 2012 pro bono requirement has been roundly criticized by some, other jurisdictions enviously yearn to copy it, including most recently, California.

Mississippi looked at it several years ago as reported by the Wall Street Journal‘s Law Blog at “Forced Pro Bono: But is it Legal?” And take particular note of the trenchant opinions of commentator “Paco”: Law professors and judges who have guaranteed salaries, employer sponsored health insurance, and government retirement benefits are the perennial promoters of mandatory pro bono. Insulated from the economic vagaries of private practice, they nevertheless feel entitled to make pronouncements regarding the “moral” and related financial obligations the rest of us should bear. From my perspective as a private practitioner, the only moral imperative regarding this issue is for legal academicians and jurists to shut up.”

As for New York’s requirement, no one has deconstructed and decried it better than law school professor Paul Campos who entitled his contemporaneous acerbic takedown, “Clueless baby boomer judge orders poor lawyers to subsidize rich ones.” Or in other words, there’s nothing like vicarious noblesse oblige. Campos listed four objections, foremost being that in the hierarchy of indigent needs, legal services do not make the list of necessities.

Of Judge Lippman, Campos opined, “He has spent his entire professional career as a functionary within New York’s court system. I’m betting a Megamillions ticket that he doesn’t have the faintest idea how preposterous it is, under current circumstances, to expect aspiring lawyers to work for free as a precondition for bar admittance in New York of all places.”

broken and untied moccasins | by TracyKoPhoto“Walk a mile in my moccasins to learn where they pinch” is an old proverb. But even its variant, “Until you walk a mile in another man’s moccasins — you can’t imagine the smell,” is disregarded. Whether pinching or malodorous or pristine, legal elites would rather go moccasin-less preferring instead to impose destinations on others without having traipsed there themselves.

Prospecting for clients? Paying business expenses like rent, payroll, utilities, marketing, legal research and insurance? Worrying about paying back six-figure law school tuition debts? Such concerns will never trouble the moccasin discalced. Paraphrasing Oscar Wilde, those who talk about nothing they know anything about — always know everything.


Credits: Oscar Wilde, by Napoleon Sarony at Wikimedia commons, public domain;God the Father, by Guercino, Wikimedia Commons, public domain; Judiciary Scene : Judge Listening To Witness. Retrieved from http://digitalcollections.nypl.org/items/510d47e1-0ca4-a3d9-e040-e00a18064a99; A school class with a sleeping schoolmaster, oil on panel painting by Jan Steen, 1672, at Wikimedia Commons, public domain; broken and untied moccasins, by Tracy Ko at Flickr Creative Commons Attribution.

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Home Improvement 26Hat’s off — I think — to State Bar of Arizona President Geoff Trachtenberg for exercising his free speech rights and speaking his own mind. Last month, Trachtenberg emailed the General Counsel to Arizona Governor Doug Ducey to express his “candid thoughts” about why Clint Bolick, one of the nominees to the state’s highest court, was “clearly not the best candidate for the job.” And because Trachtenberg wasn’t expressly wearing his state bar presidential mantle when doing so, I guess folks can’t say he was speaking for the state’s compulsory membership bar.

But the point is hardly incidental. It goes to the heart of First Amendment compelled-speech jurisprudence under Keller v. State Bar of California.  A mandatory bar requires lawyers to join and pay dues as a condition of practicing law in the state. So when a mandatory bar spends member dues on speech that the member opposes such as lobbying against a judicial candidate, the state action that compels payment of dues infringes on that member’s First Amendment rights.

Keller came about when at its 1982 convention, State Bar of California President Anthony Murray derided U.S. Senate Candidate Pete Wilson for urging the recall of Chief Justice Rose Bird if the California Supreme Court overturned the “Victims’ Bill of Rights.” Murray’s speech and resulting bar resolution prompted 21 California lawyers to sue their state bar. Unfortunately for Murray and the state bar, Wilson went on to become a U.S. Senator and eventually Governor of California.

Incongruously, parsing a distinction between private speech and organizational speech doesn’t necessarily provide a safe harbor. See what happened last year to Nevada State Bar President Alan J. Lefebvre who thought he was expressing only his opinion not the Nevada Bar’s when he editorialized on same-sex marriage in the bar’s magazine.

Trachtenberg’s communication was one of a number of letters, emails, and phone calls from Arizonans and from out-of-staters weighing in on Bolick’s candidacy and that of other nominees. As reported by The Yellow Sheet Report (paywall) over 600 critics’ and supporters’ letters and emails sent to the governor and the Commission on Appellate Court Appointments about the state supreme court nominees were just released by the governor’s staff. Having seen Trachtenberg’s email, give the man props for candor — if not for circumspection inasmuch as Bolick was widely regarded as the front-runner.

Speaking for himself and not from the State Bar of Arizona Presidential dais, Trachtenberg opined that state supreme court candidate Bolick was “interested in bringing his brand of justice to the Court — not merely “applying the law.””

Trachtenberg also went on to add that Bolick appears to be more interested in shaping law rather than applying it and “would be better suited to being in the legislature.”

He wrote, “While I’ve not reviewed the applications of existing and former Supreme Court justices, one has to wonder if there has ever been a nominee for Arizona’s highest court who similarly lacks meaningful judicial or practical experience, let alone an actual justice.”

Oops! On January 6th, Governor Ducey announced his appointment of Clint Bolick to the Arizona Supreme Court. In making his first gubernatorial state supreme court appointment, Governor Ducey explained in a press release that “Clint is nationally renowned and respected as a constitutional law scholar and as a champion of liberty.

“He brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I’m confident Clint will serve impartially and honorably in this important role.”

Prior to his elevation as Arizona’s newest high court justice, Phoenix lawyer Bolick worked as Vice President of Litigation for the Goldwater Institute.

Home Improvement 88Based on past practice, the high court’s newest justice gets assigned as the supreme court’s liaison to the Arizona Bar’s Board of Governors.

Wondering aloud — that first board meeting presided by bar president Trachtenberg with the new justice in attendance might be awkward. But no doubt there’s fence-mending in the offing.



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By a 4-0 vote the members of Arizona’s Commission on Salaries for Elective State Officers recommended that Arizona’s state supreme court justices, intermediate appellate court and county superior court judges get a $15,000 raise. I read the news item while knocking back my third cup of coffee at half past 5 Tuesday morning. Parenthetically, no surprise, the Commission included two former state bar presidents.

According to Arizona Republic Reporter Mary Jo Pitzl’s report, the proposal will cost state and Maricopa County taxpayers an estimated $1.4M. Insofar as a raise is ‘the gift that keeps on giving,’ I’m not sure what’s rolled up in that number. It strikes me on the low side. But whatever the final number, it should still be a lot less than the cost-of-living raises the state supreme court ordered restored to retired judges and elected officials last year.

As for the aforementioned commission’s pay hike recommendation and whether the jurists get it will be up to Arizona’s Governor and its Legislature.


To be clear, let me not be the one to begrudge anyone making a few more ducats for their work. In the words of lawyer and philosopher Marcus Tullius Cicero, Justice is the set and constant purpose which gives every man his due.” And demonstrating he really did think like a lawyer, Cicero also unabashedly declared, No one can give you better advice than yourself.”

Face value acceptance.

I do, however, take issue with the all too common sloppy reporting from the local press. “The commissioners decided that after years of stagnant pay, an increase would make the judiciary an attractive option for attorneys who otherwise could make far more in private practice.”  [Emphasis added] This oft-invoked bromide has seen more use than understanding and more acceptance than analysis. Do local journalists ever push back when they hear this stuff? Or do they just take what they’re told at face value?

When compared to its neighbors, the salary commission also claimed Arizona lagged behind in pay with superior court judges coming in“29th in the nation.” I don’t know where the commission got its data or why comparisons to neighboring states are even relevant. Colorado’s judicial salaries virtually match Arizona’s. And the neighboring states of Utah and New Mexico pay their judges less than Arizona. Meantime, Nevada and California pay their judges considerably more. So what?

According to the National Center for State Courts and its most recent Survey of Judicial Salaries, Arizona’s superior court jurists rank 27th. And when adjusted for the state’s lower cost-of-living, the adjusted rank is 22nd. I don’t know where Arizona ought to rank but it should at least be noted that the state is currently right at the national median judicial salary average.

“Far more in private practice.”

Per the State Bar of Arizona’s last lawyer economics survey, the median salary for all attorneys in the state is $100,000. The median for solo attorneys was $75,000. Along with small firm attorneys, solo practitioners are the greatest percentage of all Arizona attorneys. This is true across the country where by some estimates, nearly 2 out of 5 practicing lawyers are solos.

But an even more reliable data source comes courtesy of the IRS. Since the 1960s, the IRS has collected and published income levels for all American lawyers filing as solo practitioners. According to a CNN story, “In 1988, solo practitioners earned an inflation-adjusted $70,747. By 2012, earnings had fallen to $49,130, a 30% decrease in real income. And note, $49,130 is not the starting salary for these lawyers. It is the average earnings of all 354,000 lawyers who filed as solo practitioners that year.”

According to Professor Benjamin Bratton’s Glass Half Full: The Decline and Rebirth of the Legal Profession, “The hits keep coming for the American legal profession. Law schools are churning out too many graduates, depressing wages, and constricting the hiring market.” Writing at “The collapsing economics of solo legal practice,” law professor Paul Campos suggests even worse data numbers, “The median solo practitioner is making less than $35,000 per year.”  

So notwithstanding what one solo lawyer told me awhile ago about not having any interest in applying for a county judicial vacancy because “it would be a cut in pay,” there are a lot more lawyers, especially these days, who would consider the current judicial pay scale coupled with better-than-average pension benefits and good medical, dental and vision coverage an excellent gig. Not to mention the extraordinary job security. In more than 50 years of merit selection and judicial retention elections, only 3 judges have ever failed to receive the simple majority needed to keep their seats. It’s tantamount to lifetime tenure. And with a possible $15,000 raise in the offing — even better. Any wonder, then, that there’s never a lack of applicants — including by the way that one lawyer who said it’d be “a cut in pay.”


Credits: Photos except the Cicero Cartoon are via Morguefile.com, no attribution required.Cicero denouncing Cataline (from The Comic History of Rome, c. 1850), Wikimedia Commons, by John Leech, public domain.

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https://upload.wikimedia.org/wikipedia/commons/thumb/4/4c/The_hand_of_god.JPG/320px-The_hand_of_god.JPG“The bench was at an elevation that permitted me to look down on everyone in that impressive room. One has to experience such wondrous looking-down to appreciate it — to have the glorious feeling of being closer to the Divine than anyone else in the room. Having everyone stand up when I stalked onto the bench from my special door, with my black robes flowing, enhanced the exalted feelings.


“I’ve known very few judges who, after sitting on the bench for ten years, didn’t think they were sitting at the right hand of the Divine One.” — the late Hon. John Fitzgerald Molloy, on his installation as a Pima County, AZ Superior Court Judge1

Janie Hutchens Awesome Hairdo | by SportSuburbanAnd all this time I labored under another misapprehension — that ‘the bigger the hair’ brought you ‘closer to God.’

Divinely divined discretion.

Big hair or black robe, if you think you’re at the right hand of the Divine One, then someplace between judicial discretion and mandatory sentencing, there’s room for divinely inspired dispensation of justice.

Take, for instance, what was happening in small town Georgia a few months ago where indigent traffic violators unable to immediately pay fines were threatened with incarceration.

Law 16Called “debtor’s prison” cases, the practice is supposedly common throughout Georgia according to a lawyer from the Southern Center for Human Rights. What is uncommon, though, is getting it on tape since videotaping of court proceedings is routinely and expressly banned as is cellphone use.

But for the embarrassing cell phone video and accompanying national news outing, “A Surreptitious Courtroom Video Prompts Changes in a Georgia Town,” it might still be going on. There is, however, a state supreme court rule pending that would prophylactically put the kibosh on anyone recording court proceedings without obtaining 24 hours permission.

Payment in blood.

Cat nurse and blood donationThen there was the New York Times story about Marion, Ala. Circuit Court Judge Marvin Wiggins with his own version of a so-called “payment-due hearing.” According to a recording of a court hearing, Judge Wiggins told defendants, “For your consideration, there’s a blood drive outside. If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.

“The sheriff has enough handcuffs,” Judge Wiggins also purportedly told the defendants unable to part with either pesos or plasma. Defendants, observers and commentators expressed dismay over what the Southern Poverty Law Center subsequently complained was “a violation of bodily integrity” by Judge Wiggins.

My take-away from the foregoing is that if you’re poor and haled into municipal court in Georgia and Alabama (and I have little doubt in other burghs, e.g. Ferguson, Mo, where budgets depend too heavily on court fines and fees) — best bring your toothbrush, say your prayers, and get ready for a divinely inspired night in jail — when you can’t pay — or in one courtroom, give blood.

Also see “Citation Nation: Towns taxing through tickets” and “New report details the disastrous municipal court system in St. Louis County.”


[1] John Fitzgerald Molloy, The Fraternity (St. Paul, Minnesota: Paragon House, 2004), 63.

Photos: “I think I need no words,” by Molinovski at Wikimedia Commons, public domain by the author; Smeden og bageren by Th. Kittelsen at Wikimedia Commons, public domain; Janie Hutchens Awesome Hairdo, by Ethan at Flickr Creative Commons Attribution.

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“You can’t fire me — because I quit!” was the old joke until it wasn’t. Now it’s “you can’t fire me — because you’re not the boss of me!”

The Honorable Luis Quintana of the Municipal Court of the Village of Corrales, New Mexico was disbarred a few months ago for not turning over a $4,500 workers compensation settlement check to his client. But because he says the professional conduct violation took place before he was elected judge, he maintains it has nothing to do with his ability to carry out his term. Thus, he says he’s not quitting his berobbed day job.

And besides, New Mexico municipal court judges don’t have to be lawyers so Judge Quintana contends he’s not disqualified — even if the state supreme court pulled his license. Law license? Not required to wear the muni. court robe — so he’s not going.

Non-lawyers can sit on the municipal court bench in New Mexico. The only qualifications are voter registration; being over 21 years of age, and current and continual city residence throughout the judicial term.

They have limited jurisdiction to dispense justice over petty criminal and traffic violations of the municipal code punishable by not more than 90 days in jail and/or a $500 fine and which occur within the municipality’s boundaries. They can also issue subpoenas and warrants to carry out court duties and exact punishment for contempt of court.

The bar complaint against lawyer Luis Quintana was filed in 2013 but in New Mexico, it appears disciplinary justice turns on wheels in a ditch full of prickly pear molasses. He was finally disbarred in July.

All the same, you’d think the New Mexico Supreme Court and its Judicial Standards Commission would have something more to say about it — even if the misconduct admittedly occurred before he became a judge. I’m unaware of a similar case in Arizona.

Justices of the peace here are elected. They don’t have to be lawyers. But I’ve not heard of an Arizona lawyer elected justice of the peace who subsequently gets disbarred for a lawyerly ethical violation but who nevertheless keeps his job on the bench. Then again most elected Justices of the Peace around here are non-lawyers and that might explain why it hasn’t come up. Moreover, they get removed when they run afoul of the code of conduct while in office.

hiding from the paparazzi | by The Shifted Librarian

   Talk to the hand.

Otherwise, my only recollection of an Arizona municipal court judge in hot water was a jurist in Tucson. But in that case, the Honorable Theodore Abrams who was also a lawyer didn’t tell the court or the state bar to ‘talk to the hand.’  Plus the ethical violations occurred while he was a judge not a prior act as a lawyer.

Judge Abrams resigned from the bench and stipulated to violating the Code of Judicial Conduct based on allegations of having repeatedly sexually harassed an assistant public defender for more than a year.

But because Judge Abrams resigned, the Arizona Supreme Court could only censure him and prohibit him from ever seeking or holding judicial office.

And Arizona’s lords of discipline drop kicked him like a football through Bobby Bare’s goalpost of life.

https://upload.wikimedia.org/wikipedia/commons/thumb/7/75/Standing_dropkick.jpg/375px-Standing_dropkick.jpgMeantime, back in the Village of Corrales, New Mexico, Judge Quintana remains nonplussed despite the now national notoriety. And because he’s an elected official and because he’s committed no malfeasance as a judge, the village council has no authority to remove him.

https://lawmrh.files.wordpress.com/2011/05/office-stress-62.jpg?w=157&h=178And while some residents and officials are increasingly restive, at least the mayor appears supportive. Judge Quintana told Mayor Scott Kominiak his disbarment was a private matter concerning his private law practice. So as far as Judge Quintana was concerned, it’s business as usual on the municipal bench. And Mayor Kominiak, whose post is not full-time, told the Albuquerque Journal, “The analogy is that if I were to lose my job, would I be required to resign as mayor?”

Ironically, when Judge Quintana ran for judicial office in 2008 in response to a question, he discussed access to the court. At that time, he cracked he would “always look for ways to make any improvements needed and create new programs to allow greater access (except when the villagers come after me with their torches).”  Barring any torch-carrying villagers, his four-year term expires next year.


Photos: “Shawn Spears executes a standing dropkick on Pepper Parks, GCW, 16th September 2011” by Tabercil at Wikipedia Commons via Flickr Creative Commons Attribution-Share Alike license; hiding from the paparazzi by The Shifted Librarian at Flickr Creative Commons non-commercial share-alike license, kid photos via Morguefile.com, no attribution license.

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Big Finish! | by massless

A while back, someone recommended John Molloy’s 2004 book, The Fraternity: Judges and Lawyers in Collusion. Molloy? I wondered. Wasn’t that the guy who wrote the now dog-tired advice book on sartorial corporate success?

Wrong guy I discovered. The Fraternity was written by the late John F. Molloy — not John T. Molloy. That’s a world of difference. The former was a lawyer-turned-judge-turned-lawyer and the other was a researcher and consultant who first made his bones advising New York City law firms on how clothes could enhance the credibility and authority of young lawyers before judges and juries.

Nevertheless, I finally read The Fraternity. But as it turns out, the old Dress for Success guru’s book, which I read two lifetimes ago was eminently more useful by comparison.

Instead, I was disappointed by the self-proclaimed “confessional diatribe” by the late Tucson, Arizona jurist John Fitzgerald Molloy. Long on confession and short on redemption, it was also empty of promise. With so much discussion about the Fraternity’s self-serving, profit-seeking grip on the legal system, where were the practical prescriptions?

Clarks Pie | by Capt' Gorgeous

Among Judge Molloy’s pie-in-the-sky suggestions: Eliminate the exclusionary rule. Reduce peremptory challenges. Keep lawyers out of juvenile courts in favor of trained social workers. Take away the plaintiff’s first and last argument in a civil trial. Stop random selection of juries in favor of jurors selected by public officials. Limit the bench to only those with trial experience. Ban judges from working as lawyers after serving on the bench.

In whose lifetime will those sky pies be eaten?

To be fair, there’s enough in Judge Molloy’s wisp of a 244-page memoir sans index to justify the book’s subtitle, “Lawyers and Judges in Collusion.” But the problem is that it mostly reeks of cognitive dissonance, i.e., the conflict that results from simultaneously holding inconsistent beliefs and attitudes. It’s like the chow hound who complains about his meal while asking for a third helping.

Out of both sides.

On the one hand, Judge Molloy regales his readers with how much money he made as a trial lawyer after leaving the bench, even admitting “We were infatuated with the flow of delightful cash.” And to make certain you’re suitably impressed, he goes as far as helpfully calculating the present value of his old law firm earnings.

But then on the other hand and only at the end of his career, does the 74-year old former trial and appellate judge belatedly call for incremental reform of a legal system that’s been “massaged” by “a Fraternity composed of lawyers and judges . . . into something quite different from what was intended — one that derives powers from claiming to have come from our Forefathers, but which in fact is a system that has been restructured, almost beyond recognition, by the Fraternity, for the benefit of the Fraternity.”

NYC: New York Supreme Court, Appellate Division | by wallyg

Indeed, concluding his recollections of his service on Arizona’s appellate bench, he writes, “In reviewing this chapter, I realize that I may have given the impression that as an appellate judge I was a brave dissenter, always leaning against the tornadic winds of the Fraternity’s movement toward more litigation and more lawyer-profit. The written record gives lie to such a claim.”

Sort of undercuts the argument for reform, that it’s made — only after you’ve gotten yours. Better I think what Edna St. Vincent Millay said long ago about penance, “But if I can’t be sorry, why I might as well be glad.”

Photo Credits: “Big Finish” by Chris Wetherell at Flickr Creative Commons Attribution; other photos via Morguefile.com;”Clark’s Pie,” by Ben Salter at Flickr Creative Commons Attribution; “NYC: New York Supreme Court, Appellate Division,” by Wally Gobetz at Flickr Creative Commons Attribution.

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