Casual Friday revisits Lawmiss

Judicial recusal, Ohio-style: Remember lawmiss, aka Shirley Strickland Saffold, the Cleveland judge who (allegedly) took to the Cleveland Plain-Dealer website comments to anonymously rip litigators who appear before her?
Obviously, the attorney she ripped, Rufus Sims, sought her recusal, which she refused, claiming that he had no proof.

While Saffold clung tight to her alibi that her daughter wrote those comments, Ohio Chief Justice Paul Pfeifer gave her the hook [Cleveland.com]:

CLEVELAND, Ohio — Acting Ohio Chief Justice Paul E. Pfeifer removed Cuyahoga County Common Pleas Judge Shirley Strickland Saffold from hearing the case of accused serial killer Anthony Sowell Thursday.

Pfeifer made the ruling based on comments posted on cleveland.com about the Sowell case. The comments were posted through a username created with an AOL e-mail address used by Saffold. The judge has denied making the comments, and her 23-year-old daughter has said she posted them.

Pfeifer found no evidence to suggest that Saffold made the postings, but he found the comments have “created a situation that ‘poses an impediment to the judge’s ability to resolve any remaining legal and factual issues in a way that will appear to the parties and the public to be objective and fair.’ “

Finally: Apparently, there’s a Michael Jackson imitator from Allen Park who took his imitation goes too far [The News Herald]:

Picture 3

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Justice Stevens leaving SCOTUS at end of term

From the Associated Press:

WASHINGTON (AP) — Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.

Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed "well in advance of the commencement of the court’s next term."

Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.

Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases — those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.

Chief Justice John Roberts said in a written statement that Stevens "has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

Senate confirmations of Supreme Court justices have increasingly become political battles and this one will come amid the added heat of congressional election campaigns.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility. "I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse," Leahy said.

Looking toward those hearings, Senate Republican Leader Mitch McConnell of Kentucky said, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law."

Stevens informed Obama in a one-paragraph letter addressed to "My dear Mr. President." It was delivered to the White House by court messenger at 10:30 a.m. EDT, two minutes before the court’s public announcement. The news came on a day when the court wasn’t in session.

White House counsel Bob Bauer telephoned the news to Obama on Air Force One, as he returned from a trip to Prague.

The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago.

Stevens’ departure will not change the court’s conservative-liberal split because Obama is certain to name a liberal-leaning replacement, as he did with his first nominee, Justice Sonia Sotomayor. But the new justice is not likely to be able to match Stevens’ ability to marshal narrow majorities in big cases.

Stevens was able to draw the support of the court’s swing votes, now-retired Justice Sandra Day O’Connor and Justice Anthony Kennedy, to rein in or block some Bush administration policies, including the detention of suspected terrorists following the Sept. 11, 2001, attacks, its tilt toward protecting businesses from some lawsuits and its refusal to act against global warming.

But after the arrival of Roberts and Justice Samuel Alito, President George W. Bush’s appointees, Stevens more often was among the four liberal justices in dissent.

Stevens’ recent dissent in a major case involving campaign finance laws showed both the eloquence of his writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.

He is the court’s last World War II veteran and that experience sometimes finds its way into his writings, recently in a reference to Tokyo Rose, the English-speaking Japanese radio announcer who addressed U.S. soldiers in the Pacific.

Stevens had a reputation as a bright and independent federal appeals court judge when Ford, acting on a recommendation by Attorney General Edward Levi, nominated him to the Supreme Court.

His friendly manner of questioning lawyers who appeared before the court could not hide Stevens’ keen mind. His questions often zero in on the most telling weaknesses of a lawyer’s argument and the case’s practical effect on everyday people.

A pleasant, unassuming man, Stevens has been a prolific and lucid writer. For many years, he wrote more opinions each court term than any other justice.

Most justices let their law clerks write the first drafts of opinions, but Stevens has used his clerks as editors.

He’d write the first draft and submit it to the clerks for comment. "That’s when the real fun begins," Stevens once told a visitor. "The give and take can get pretty fierce."

As a result, his opinions have reflected his personal writing style — a conversational one that contrasted sharply with the dry, dull efforts of some other justices.

He said recently that one sign that it would be time to retire would be an inability to churn out those first drafts. But he insisted in recent days that he was still writing them.

Casual Friday Is Unbuttoned At The Collar

Short and sweet on this un-work* day.

* Un-work in that most people are off as evidenced by the lack of other people on the road this morning.

The kid’s a pro And here I thought it took years to develop political corruption skills. Or at least a family pedigree. Brandon Hall is wise beyond his years: [WZZM-13]

GRAND HAVEN, Mich. (WZZM/Grand Haven Tribune) – A Grand Haven school board member received his sentence this morning for stealing money from a school-sanctioned fundraiser.

Our news partner, The Grand Haven Tribune , is reporting 20-year-old Brandon Hall was sentenced today to 24 months probation, 60 hours of community service and a $665 fine.

A jury found Hall guilty of the larceny-by-conversion charge in February. He took the money from a fundraiser for the American Cancer Society last fall.

The first commenter is today’s winner at life:

begoodtome wrote:

Don’t trust anyone with the shirt buttoned to the top

That’s good advice, indeed!

In the same spirit of the “People You Never Meet In Solo Practice” post from a couple weeks ago, Crimlaw blog offers a similar list of “crummy,” “incompetent criminal defense attorneys who “walk [their clients] right off the plank and into the ocean.” Including:

Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench – now he’s getting a month. This guy doesn’t care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don’t understand how it hurt the client. He knows this will bring business and big fees.

This guy is not exclusive to criminal law.

Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can’t negotiate with the prosecutor and officers worth a darn. Her client "didn’t really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgment. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she’s out in the hall talking to Mom about her son’s jail sentence and she’s visibly more upset about it than Mom is; in fact, you’ll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.

and of course,

In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy’s reputation. When people can’t afford Big Guy’s fee or need someone NOW and Big Guy isn’t available, they end up with this guy. After all, he’s connected to Big Guy and therefore the defendant’s going to get Big Guy’s experience at this lawyer’s rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant’s happy because he’s represented by someone out of Big Guy Law Offices (even if it’s not Mr. Big himself).

Feel free to nominate one of your own in the comments.

Finally: Welcome to the 2000s, SCOTUS!!! After 13 years of the same antiquated website, SCOTUS has finally upgraded its website to something that doesn’t look like it was made by a web production undergrad in 1997. Check out Legal Blog Watch to see the difference.

SCOTUS backs state in Kent County jury case

From Lawyers USA:

In a ruling that could make it tougher for minority defendants to challenge convictions by all-white juries, the Supreme Court today in Berghuis v. Smith reversed a 6th Circuit ruling that a Michigan jury selection system — which the defendant claimed drained black jurors from the pool before criminal juries could be selected — did not violate the Sixth Amendment.

Delivering the unanimous opinion for the Court, Justice Ruth Bader Ginsburg wrote that the 6th Circuit should not have disturbed a Michigan Supreme Court ruling that the defendant failed to show a constitutional violation.

“Warranting heavy weight, the Michigan Supreme Court, in a cogent decision, had held that Smith’s evidence failed to prove ‘systematic exclusion’” of black jurors, Ginsburg said today from the bench in announcing the decision. “[A]s that determination was not at all unreasonable, the 6th Circuit had no warrant to disturb it.”

Is SCOTUS seat in Granholm’s future?

As discussed here a few weeks back, much speculation will occur over the remained of this year about the future of Gov. Jennifer Granholm. Since the implosion of the American economy and the election of Barack Obama, she’s been rumored to be a candidate for several positions within his organization or for the U.S. Surpeme Court.

Then Justice John Paul Stevens hinted in the New Yorker that he may retire after this term. If a spot opened up, would Granholm have a shot? Not really, says Lawyers USA:

Long shots

Gov. Jennifer Granholm

Obama has often stated that he’d like to look for Supreme Court candidates from places outside of the federal judiciary (all the current justices are former federal appellate judges).

The Michigan governor, who previously served as attorney general of the state would satisfy that criteria. And like Stevens, Granholm, 51, hails from the Midwest, which would help keep the Court’s geographic balance. But having never faced a Senate confirmation hearing, her odds aren’t as good as those of Kagan, Wood or Garland.

“Kagen” is former Harvard Law dean and current Solicitor General Elena Kagan; “Wood” is U.S. 7th Cir. Court of Appeals judge Diane Wood. Garland; and “Garland” is D.C. Circuit judge Merrick Garland.

According to Lawyers USA, Kagan would likely have the advantage because of her age (49), history (nothing objectionable) and she has already been confirmed for her current position by the Senate.

The article said her lack of federal judiciary experience would be a plus for Granholm, but she’d be less attractive of a candidate because she’s never been through the confirmation process.

Perhaps there was an ulterior motive for the recent written smackdown letter she sent to Michigan attorney general Mike Cox in support of the new health care law. Did she attach her resume?

SCOTUS says Bankruptcy Court can discharge student loan debt without undue hardship claim

The U.S. Supreme Court held that the Bankruptcy Court has the power to discharge student loan debt without an undue hardship claim. Justice Clarence Thomas wrote the opinion for the unanimous decision. [SCOTUSblog]

The facts:

The debtor in this case filed a plan with the Bankruptcy Court that proposed to discharge a portion of his student loan debt, but he failed to initiate the adversary proceeding as required for such discharge. The creditor received notice of, but did not object to, the plan, and failed to file an appeal after the Bankruptcy Court  subsequently confirmed the plan. Years later, the creditor filed a motion under Federal Rule of Civil Procedure 60(b)(4) asking the Bankruptcy Court to rule that its order confirming the plan was void because the order was issued in violation of the Code and Rules.

This was in 1993. The lender did not challenge the discharge until 2000.

The holding:

Rule 60(b)(4) strikes a balance between the need for finality of judgments and the importance of ensuring that litigants have a full and fair opportunity to litigate a dispute. Where, as here, a party is notified of a plan’s contents and fails to object to confirmation of the plan before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief. We thus agree with the Court of Appeals that the Bankruptcy Court’s confirmation order is not void.

We are mindful that conserving assets is an important concern in a bankruptcy proceeding. We thus assume that, in some cases, a debtor and creditor may agree that payment of a student loan debt will cause the debtor an undue hardship sufficient to justify discharge. In such a case, there is no reason that compliance with the undue hardship requirement should impose significant costs on the parties or materially delay confirmation of the plan.Neither the Code nor the Rules prevent the parties from stipulating to the underlying facts of undue hardship, and neither prevents the creditor from waiving service of a summons and complaint. See Fed. Rule Bkrtcy. Proc.7004; Fed. Rule Civ. Proc. 4(k). But, to comply with §523(a)(8)’s directive, the bankruptcy court must make an independent determination of undue hardship before a plan is confirmed, even if the creditor fails to object or appear in the adversary proceeding.

SCOTUS denies Cox attempt to stop Asian carp

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court on Tuesday refused to order immediate closure of shipping locks near Chicago to prevent Asian carp from infesting the Great Lakes.

The court rejected a request by Michigan for a preliminary injunction to close the locks temporarily while a long-term solution is sought to the threatened invasion by the ravenous fish. The one-sentence ruling didn’t explain the court’s reasoning.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton, the foundation of the Great Lakes food web.

Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Officials poisoned a section of the canal in December after discovering genetic material that suggested at least some carp might have eluded an electric barrier on the Chicago Sanitary and Ship Canal and could be within six miles of Lake Michigan. If so, the only other obstacles between them and the lake are shipping locks and gates.

Last week, the U.S. Army Corps of Engineers said additional carp DNA — but no live fish — had been found in three different spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Ohio and Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi River basin.

"While this action means that the court will not order an immediate closure of the locks … it does not mean that no action will be taken in the case," said Josh Mogerman, spokesman for the National Resources Defense Council. "There is still a significant possibility that the court will issue a decision regarding Michigan’s broader requests for action on this issue."

The state of Illinois, backed by the Obama administration, fought the proposal. They said the DNA samples weren’t sufficient evidence that the carp were on the verge of slipping into Lake Michigan, and said closing the locks would damage shipping and passenger traffic on the busy waterway.

A message seeking comment was left Tuesday with Illinois Attorney General Lisa Madigan’s office.