Bad days to be a judge in PA.

It has been a bad couple of days for the judiciary in Pennsylvania. As the Associated Press reports, on Friday, Luzerne County Judge Mark Ciavarella was convicted of racketeering for taking over $900,000 in kickbacks from the builder of a for-profit juvenile detention center. He also failed to report these payments on his state-mandated financial disclosure forms. Moreover, he was tripped up by the same problem that caused Al Capone’s imprisonment. Judge Ciavarella did not pay taxes on the income the money he received.

Judge Ciavarella was convicted on 12 counts of racketeering, money laundering, and conspiracy. He was also acquitted of 27 other counts. Although he could get 157 years in prison on the convictions, prosecutors apparently intend to seek a sentence of around 12 years on the convictions. Judge Ciavarella, who was apparently (in)famous for ordering his juvenile defendants to be immediately shackled, handcuffed, and taken away without saying goodbye to their families, was released after the verdicts. He will remain free pending sentencing. Poetic justice is apparently not available in the United States District Court for the Middle District of Pennsylvania.

The judge’s actions caused the Pennsylvania Supreme Court to dismiss 4,000 juvenile convictions the Judge issued because he sentenced juveniles without regard for their constitutional rights, including the right to counsel.

So faced with 12 years in prison, an order to pay back the 900 grand, and 4000 convictions set aside, what did the judge do? He declared victory, of course. Al Flora, the judge’s attorney stated that he was “amazed” and that the “jury rejected 95% of the government’s case.” I wonder if it will still feel like a victory during the 12 years in prison.

An odd part of the case is that the person who led them to the judges is the reputed boss of a northeastern Pennsylvania Mafia family. William D'Elia. Mr. D’Elia became a government informant after his 2006 arrest on charges of witness tampering and conspiracy to launder drug money.

In other judges behaving badly news, there will a rather interesting hearing tomorrow in the district court of Adams County, Pennsylvania. As the York Daily Record notes, Janan Tallo, a public defender in York County, Pennsylvania, is seeking permanent order protecting her from abuse. Who is her alleged abuser? He is York County Judge Thomas Kelley. Ms. Tallo alleges that Judge Kelley, her “current or former sexual or intimate partner,” picked her up and slammed her to the floor of his home. She alleges that by slamming her to the floor, Judge Kelley broke her elbow. Ms. Tallo requested, and was granted, a temporary protection-from-abuse order and is now seeking a permanent order. The hearing is scheduled for 11:00 a.m., on February, 23.

The alleged abuse occurred around 11:30 p.m. on February 8 when Judge Kelley and Ms. Tallo had an argument over the phone. Ms. Tallo decided to drive to Judge Kelley’s home. He apparently invited her in, grabbed her, and slammed her to the floor. Ms. Tallo then left to go to the emergency room.

Judge Kelley, you may or may not be surprised to learn, denies that any abuse took place. In a statement released by his lawyer, Christopher Ferro, Judge Kelley “categorically” denied the “unfounded and false allegations that are contained in the recently filed, one-sided” request for protection. Because “Judge Kelley has too much respect for the judicial process,” he prefers “to address the matters in the proper forum and in an appropriate manner.” I wonder if the broke elbow part is false. Because it seems like it would be pretty easy to prove one had a broken elbow.

This case raises a number of questions. First, how can a judge have “too much respect for the judicial process?” Second, by calling Ms. Tallo’s petition “unfounded and false,” “one-sided,” and “baseless” in a statement to the media, didn't the judge address the allegations to the media? Third, is the broken elbow part false? Because it seems like it would be easy to prove one has a broken elbow. Fourth, what does Pennsylvania’s Code Judicial Conduct say about these sorts of relationships?

To answer the last question, Pennsylvania’s Code of Judicial Conduct doesn’t talk much about judges dating defense attorneys, or anyone else for that matter. Cannon 2 of the code states that “Judges should avoid impropriety and the appearance of impropriety in all their activities.” The official note to the cannon doesn’t talk about dating but does say that judges “must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Perhaps dating public defenders falls into this category.

Cannon 3 of the code gets a little more specific. It states that “judges should perform the duties of their office impartially and diligently.” Subsection C of Cannon 3 says that Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned. This includes cases in which their spouse, “or a person within the third degree of relationship” acts as a lawyer in the proceeding. Ms. Tallo is not the judge’s spouse. As the note to Cannon 3 makes clear, a third degree relationship includes the “parents, grandparents, aunts or uncles, siblings, nieces or nephews or their spouses” of the judge or the judge’s spouse. According to the note, cousins are not covered by the rule. The cannon doesn’t talk about people whom the judge might date or have a “sexual or intimate” relationship. Prior the abuse allegation, the judge was hearing cases where Ms. Tallo was representing defendants.

But Judge Kelley isn’t hearing these cases anymore. In fact, now that these charges have come out he isn’t hearing any criminal cases where the defendant is represented by a public defender. York County President Judge (what an awesome title) Steven P. Linebaugh has removed Judge Kelley from all criminal cases. As one of only four judges on the York County criminal docket, I imagine this is a lot of cases. Implicitly noting the judicial cannons’ lack of guidance about romantic/sexual relationships, Judge Linebaugh said "If he is found to have done the things that are alleged, I expect the judicial disciplinary board would then have to determine if there has been any violation of the canons of judicial ethics" (emphasis mine).

So what do we take away from these incidents? I guess the lessons are that Judges ought to declare the kickbacks they receive and also not literally beat-up defense attorneys.

Update on the Broccoli Objection

The other day I did a little post on the "Broccoli objection" to the individual mandate aspect of Obamacare.  I mistakenly -- or perhaps presciently -- wrote that the author of the Broccoli objection (Judge Vinson, during oral argument in the attorneys general case against the law in Florida) had already struck down the mandate as unconstitutional.  In fact he had not -- until today.

The solution to the problem of too many lawyers: more lawyers!

I recently read a curious essay called "The Secret is Out About Law Schools," by George Leef.  The primary thrust of the article is to comment on the recent focus on whether going to law school is a good idea.   Much of the article expands on the anecdotes in this widely read New York Times article by David Segal (titled "Is Law School a Losing Game?").  But he concludes with a pointed criticism of that article:

Where the article disappoints is its failure to thoroughly diagnose our glut of lawyers problem.

On its face, this seems like an unfair criticism.  Segal's article could be neatly summarized, in fact, as a thorough diagnosis of the problem with our glut of lawyers -- lots of them sitting around earning nothing while their student debts come due.

But I think the confusion may be in Leef's tortured syntax.  I think when he says Segal failed to "diagnose our glut of lawyers problem," he is not saying that it is a problem that there is a glut of lawyers; he is saying this glut of lawyers has a problem--and that problem was only that they had to go to law school to become a lawyer.

The reason I think this is what Leef means is that his solution for the problem, as he diagnoses it, is not to discourage people from becoming lawyers.  No, his solution is to make it easier for people to become lawyers:

the right move is to open this market up to competition. States should allow individuals to attempt the bar (passing which, incidentally, is itself neither necessary nor sufficient for competence as a lawyer) no matter where or how they have studied law.

So his counter-intuitive recommendation for a market already saturated with unemployed lawyers is more competition from even less qualified new lawyers.

How does this make sense?  It makes sense, to Leef at least, because letting people become lawyers without going to law school would mean that people could become lawyers without racking up all that crushing debt.  In other words, it would be much less risky to try to become a lawyer.

One problem with this solution is that it doesn't actually do anything to help the many unemployed lawyers that are already out there -- the ones that had to go to law school and accumulate all that debt.  In fact, if Leef had his way the situation would become even worse for that cohort -- because a fresh wave of debt-free new lawyers could flood the market and afford to work for less money.  So maybe Leef has diagnosed the problem, but his medicine seems to make the disease even worse.

Thoughts on "The Broccoli Objection"

Over at Balkinization, Andrew Koppelman discusses what he calls "the Broccoli Objection" to the constitutionality of the individual mandate aspect of Obamacare.  The Broccoli Objections was first made by U.S. District Court Judge Roger Vinson, during the oral argument preceding his decision to strike down the individual mandate:

In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect. If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?

Koppelman thinks this objection "rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one."  He quotes Frederick Schauer for the proposition that "any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case," and dismisses the Broccoli Objection because "Congress is never going to force you to eat your broccoli."  Q.E.D.

I think Koppelman misunderstands the logical structure of the Broccoli Objection.  It really is not a slippery slope argument -- it is a reductio ad absurdum.  Here is the structure of the objection, as I see it:


Premises
1)  The constitution imposes significant limits on the power of Congress;
2)  If the individual mandate is within Congress's power under the Commerce Clause, then, by the same principle, so would be the Broccoli mandate;   
3)  If the Broccoli mandate is constitutional, then there are no significant limits on Congress's power.


If all three premises are true, absurdity results because it would be both true and false that there are limits on Congress's power.  So not all three premises can be true.


So is the Broccoli Objection effective?  Not in my opinion.  I think premise 2, and probably premise 3, are actually false.  For example, you can craft a principle by which the individual mandate is within Congress's power (as necessary and proper to an otherwise clearly constitutional attempt to regulate the market for health insurance) and the Broccoli Mandate is not (because it is not necessary and proper to any otherwise constitutional exercise of Congressional power).   

But the objection is best defeated on its own terms -- not by transforming it into a more-easily dismissed slippery slope argument.

"I honest-to-gosh don't understand why this is such a hoop-de-do"...

...says Wisconsin Supreme Court justice Patience Roggensack, regarding her (withdrawn) request for $600 to cover mileage to study racial disparities in sentencing.  This quote is from a Wisconsin State Journal article about the latest manifestation of the Wisconsin Supreme Court's internal acrimony.  For a previous discussion of this topic, see this post.

PS:  Is it "hoop-de-do" or "whoop-dee-doo"?

A very strange way to die UPDATED

Sneaking into an airport and hitching a ride in the wheel well of a commercial jet, only to fall your death when the landing gear is lowered for descent.

UPDATE:

The family of the decedent (a 16-year-old boy, it turns out) is planning to sue the airline and the airport for allowing this to happen.

Phony lawyer

WGN reports that Tahir Malik, a Skokie, IL man -- and convicted burglar -- has been arrested for falsely posing as a lawyer for some five years.  "No one suspected anything for years because he did everything right -- except obtain a law degree," said Thomas Dart, the Cook County Sheriff.  Indeed, according to the Evanston Patch, many of his clients were happy with his work, which mostly consisted of representing people in traffic court.  More here.

Some thoughts:

1)  The most famous Illinois lawyer -- arguably the most famous lawyer, period -- also did not have a law degree.  Talking about Abraham Lincoln, of course.  Of course he did study the law on his own and was admitted to the Illinois bar. 

2)  Are any of Malik's communications with his former clients protected by the attorney-client privilege?

ADDED:

3)  There's been a lot of talk about the horrible job market for new law graduates -- with the insinuation that law school borders on a scam.  But this convicted felon has apparently been making a go of it as a lawyer without any legal education at all.  I guess his big advantage over the new law graduates is the lack of crushing debt.

"Chet Haze, baby, yeah, make it hot"

Apparently Tom Hanks's son Chet -- aka Chet Haze -- goes to Northwestern here in Evanston.  He has tons of school pride.  So much that he has a rap song singing the school's praises.  Take a listen.


[VIDEO REMOVED]

UPDATE:

Sadly, the video has been removed.  On the bright side, the Internet has already had a field day making fun of Mr. Chet Haze.

Jurisdictional jurisdiction

Have you ever wanted to shout at someone, "You're out of your jurisdiction!!"?  I have.  In fact, I've done it a couple of times.  In both cases, I was standing outside a bar speaking to a bouncer. 

Oddly, I was reminded of these moments today when I read the case of Warrior Sports Inc. v. Dickinson Wright, PLLC, which the Federal Circuit court of appeals decided yesterday.  It's a legal malpractice case stemming from a patent litigation that settled because the patent attorneys had failed to pay maintenance fees and therefore allowed the patent to lapse.  The main issue for the Federal Circuit was whether there was federal subject matter jurisdiction under 28 U.S.C. § 1338 (which gives federal courts the exclusive jurisdiction over cases "relating to patents")  even lthough this is fundamentally a state-law legal malpractice case.  The court's answer, ultimately, is yes:  there is federal jurisdiction because deciding the malpractice claim necessarily requires resolution of a substantial question of patent law. 

But before it gives this answer, the court entertains a kind of meta-jurisdictional question:  does it have jurisdiction to consider the jurisdictional question?  This is kind of wonky, but the Federal Circuit is a special, national appellate court with limited jurisdiction to hear only certain kinds of appeals--including appeals of cases arising under § 1338.  The appellee here argued that the Federal Circuit lacked appellate jurisdiction to decide the subject matter jurisdiction question because the district court had already decided that the case did not arise under § 1338.  Thus, according to the appellee, the case should have been appealed to the regional circuit court of appeals, not the Federal Circuit.

The Federal Circuit disagreed, noting that it would be an "absurd result" if the Federal Circuit lacked appellate jurisdiction to determine whether a district court correctly interpreted the statute governing patent jurisdiction, even though the Federal Circuit has exclusive jurisdiction over appeals involving substantive patent law.

So we can sleep well tonight knowing that the Federal Circuit does indeed have jurisdiction to adjudicate jurisdictional judgments concerning patents.

Scalia stands up for the little guy

Today the Supreme Court decided a statutory interpretation case involving bankruptcy law that turns more or less on the meaning of the word "applicable."  Sexy, sexy stuff.  At the risk of boring our reader(s), let me briefly explain the issue: whether an individual in bankruptcy can deduct from his disposable income—that is, the amount he's presumed to have available to pay creditors -- an amount for the ownership costs of his car, even if he owns his car outright and has no car payments.

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."  Just another example of a judge using the canons of statutory interpretation to get his preferred result.

Of course I'm being facetious.  I don't think this is evidence that Scalia cares about the little guy, particularly, or that either he or Kagen were perverting the canons to get their "preferred result. " But just remember this case the next time you read a story about how the Supreme Court always decides "business cases" in favor of businesses.  I posit that most of them are just like this one—statutory interpretation cases that come down to judicial idiosyncrasy—not judicial ideology.