Civility Absent At Wisconsin Supreme Court

Supreme Court Justice Ann Walsh Bradley late Saturday accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel. . . .

A source who spoke to several justices present during the incident told the Journal Sentinel that the confrontation occurred after 5:30 p.m. June 13, the day before the high court's release of a decision upholding a bill to curtail the collective bargaining rights of public employees.

Six of the court's seven justices - Justice N. Patrick Crooks was not present - had gathered in Bradley's chambers. Some were informally discussing the decision.

The conversation grew heated, and Bradley asked Prosser to leave. Bradley was bothered by disparaging remarks Prosser had made about Chief Justice Shirley Abrahamson, a source said.

Bradley felt Prosser "was attacking the chief justice," the source said.

Before leaving, Prosser "put his hands around her neck in what (Bradley) described as a chokehold," the source said.

"He did not exert any pressure, but his hands were around her neck," the source said.

The source said the act "was in no way playful." . . .

Infighting has plagued the court in recent years and often spilled into the public. The court's rancor became a campaign issue for Prosser this spring, but he insisted he was not the cause of the problem. He said during debates that he was confident the internal disputes on the court would fade quickly once he was re-elected.

Prosser acknowledged in March that he called Abrahamson a "bitch" and threatened to "destroy" her during a closed-door meeting.

At the time, Prosser told the Journal Sentinel that the outburst to Abrahamson came after the chief justice took steps to undermine him politically and to embarrass him and other court conservatives.

"In the context of this, I said, 'You are a total bitch,' " Prosser said. "I probably overreacted, but I think it was entirely . . . warranted. They (Abrahamson and Bradley) are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing."

In a March interview, Bradley said Prosser had flashes of extreme anger on and off over the years.

"It's been going on for years off and on," she said.

After Prosser's outburst, Bradley sent an email to him and other justices saying the behavior was unacceptable. She said this March that from the time of her email until then there had been no incidents of similar magnitude.

From here.

Prosser, and apparently another Justice who was present, claim it was an act of self-defense and not a choking. Prosser was recently re-elected in an election so close that it required a recount.

READ MORE - Civility Absent At Wisconsin Supreme Court

Columbus, Ohio Builds Perv Friendly Courthouse

Somebody forgot that in engineering, function should always trump form, particularly functional aspects that matter to your key constituents. The snafu in a $105 million court house in Columbus, Ohio was clear when it opened on Monday.

The central stairs of the new Franklin County Common Pleas Courthouse seem almost to float up from the ground floor, suspended in a foyer of light and glass.

However, the aesthetic appeal of the stairway has an unfortunate side-effect in a building where judges sentence sex offenders: People can see up a woman's skirt from the busy walkway under the stairs.

"If you wear dresses, you're on notice that you might want to take the elevator, as I will be doing," said Judge Julie M. Lynch, who wears dresses exclusively to work.

Although it's probably best not to advertise the issue for fear of abuse, people partial to skirts, dresses and kilts have a right to know about the risk, Lynch said.

From here (the Court of Common Pleas in Franklin County is the court of general jurisdiction handling felonies and large claim civil cases in Columbus, Ohio).

The problem is particularly unimpressive because the issue is a familiar one in new public building projects. I'd be willing to guess that there weren't any women or acrophobics on this engineering design team.

The county is aware of the issue and has discussed whether anything needs to be done, said Jim Goodenow, director of public facilities management.

For now, security guards have been told to keep an eye out for people craning their necks. If the design becomes a problem, the county can adjust the glass to make it less transparent, but officials are hoping not to disrupt the artistic integrity of the building. . . .

When glass stairs and walkways first came out, [one of the engineering executives who builds them for Apple computer properties] Zorn said, he remembers looking up at an elevated walkway at an airport and wondering how the designers had missed the fact that skirts were going to be a problem. Most engineers know enough to use some well-placed opaque glass and careful design to avoid the problem, he said.

A similar design for a recent renovation at nearby Ohio State University's main library was nixed at the design stage for this reason and because of "the fear some people have of standing on clear glass."

READ MORE - Columbus, Ohio Builds Perv Friendly Courthouse

Quote of the Day

While an appellate court may have the opportunity to reverse any individual trial judge every few years, I know that trial judges, in their numerous workday rulings, reverse appellate courts every day.

- Gregory Kellam Scott, “Judge-Made Law: Constitutional Duties and Obligations Under the Separations of Powers Doctrine,” 49 DEPAUL L. REV.517 (1999) (a former Colorado Supreme Court justice) via 39 Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” 1 J. EMP. LEGAL STUDIES (2004) 459, 519.

READ MORE - Quote of the Day

New Probate Judge Appointed In Denver

Per Law week June 1, 2011 via the Trust and Estate Section of the Colordo Bar Association:

DENVER — Wednesday, June 1, 2011 — Gov. John Hickenlooper announced today the appointment of Elizabeth Leith to serve as a probate judge in the 2nd Judicial District (Denver County). Leith will replace the Honorable C. Jean Stewart, who is stepping down June 30.

Leith, of Denver, is currently Magistrate Judge for the 2nd Judicial District, where she has served since 1999. Issues that come before her include civil discovery disputes, liquidation of damages, foreclosure issues, child support, post-decree related matters and other issues. Before becoming a magistrate, she was an Assistant City Attorney for Denver, Human Services Section (1991-1998); Deputy District Attorney for the 4th Judicial District, Child Enforcement Unit (1989-1991); private practice attorney (1989); and associate attorney for Sandra J. Plaff, Esq., (1988-1989).  Leith earned a bachelor’s degree from Metropolitan State College of Denver (1982) and a law degree from the University of Denver College of Law (1988).

Leith’s appointment is effective July 1.

The other two finalists for the position also had backgrounds as magistrates. One was the recently sitting Denver Probate Court magistrate (who was previously a magistrate in a court other than the probate court in Colorado who also lacked substantial probate experience), and another was a previous Denver Probate Court magistrate. The selection committee clearly felt that generalized judicial experience was more important than substantive law experience in the areas within the jurisdiction of the court.

Leith comes to this specialized post with very little probate experience, and what little experience she has in the field is at a very junior level when she was fresh out of law school, and is more than twenty years old, but this isn't necessarily a fatal flaw, even on this subject matter specialized court, because very few of the contested cases at the Denver Probate case actually involve the probate of wills. The vast majority of the contested cases involve guardianships and conservatorship which calls for talents similar to that involved in domestic relations cases. The vast majority of decedent's estate cases are handled administratively by court staff without ever reaching the judge.

Leith's appointment is the only one of the three nominees that makes a clean break with Judge Stewart's tenure (judges appoint magistrates), which several Denver Post stories had seriously criticized, despite her retention by the voters in 2010 with an overwhelming majority of the vote.

I wish Judge Leith the best of luck in her new position.

READ MORE - New Probate Judge Appointed In Denver

Parental Rights For The Other Man

Men who father a child during an affair with a married woman have the right to seek a role in the child's life, the Kentucky Supreme Court has ruled [4-3]. In an emotionally charged decision that critics say will undermine marriage, the court reversed centuries of common law and its own 2008 ruling that held such children are presumed to be the offspring of the woman and her husband.

From here referring to this ruling.

The only think I find surprising about the result on the merits, once paternity has been established notwithstanding the non-conclusive presumption that children are the offspring of the woman and her husband, is that it was so controversial, and an examination of the opinion reveals that the issue framed by the newspaper in the quote above wasn't the real issue before the court anyway.

The common law presumption of paternity in a marriage couple is centuries old, but that presumption has rarely been interpreted as being a conclusive one and has very rarely been applied in cases where it is obvious at birth (e.g. because a child is of mixed race or the husband was away at sea or at war for the entire period when the child could have been conceived) that the child is not the genetic offspring of the mother's husband. Usually, people don't look beyond the presumption and there is no duty or expectation that married couples will affirmatively establish whether or not husbands are cuckolds, even were there are good reasons to be suspicious. In the absence of scientific testing in cases of same race fathers, where the wife continued to have sex with the husband during the affair, however, which made up most of the cases when the common law presumption was developed, there was no reliable evidentiary way to overcome the presumption, and a version of this common law approach that captured the effect of this rule but not the reasoning behind it was codified into the archaic laws of Kentucky.

So, the real controversy in the Kentucky case (notwithstanding the spin given to it by the newspaper quoted above) for five of the seven judgges was really over whether the presumption of paternity in the case of a married couple was conclusive or merely evidentiary, given the archaic language of Kentucky's family law statutes that replaced the common law in this area of law. Kentucky's past precedents which were less than clear on the issue because a 2008 decision on a similar issue produced a consensus on the outcome but not on the legal justification for that outcome. The statute gives courts jurisdiction over paternity matters in cases of children "born out of wedlock." One past interpretation of that statute reached this result by reasoning that an affair interrupted "the marital relationship" even in the absence of a divorce or physical separation, by breaking the vow of monogamy. The Kentucky Supreme Court this week took a more direct approach, holding that defines the term "born out of wedlock" in relation to a child to refer to "a child whose mother, married or not, is not married to the child's biological father" without regard to the condition of the mother's marriage.

The new rule will make it unnecessary to procure in future legal proceedings of this kind the kind of evidence considered by the trial judge in this case to the effect that:

Appellant married R.S. on October 9, 1999. They have lived together ever since. They slept in the same bed, regularly engaged in sexual intercourse, and prior to 2008 had one child, whose paternity is not at issue. From August 2007 through the spring of 2008, Appellant was involved in an intimate and secret affair with Real Party In Interest, C .H .E., who was also married but was in the process of divorce. Appellant and C.H .E. had sexual intercourse on numerous occasions between October 2007 and March 2008. Throughout the affair, however, Appellant and her husband continued having sexual intercourse on a regular basis.

According to Appellant, the affair began because her marital relationship was troubled. She professed her love to C.H .E. and told him that she wanted to leave her marriage to be with him. He professed his love for her. She lied to her husband about her whereabouts when she was with C .H .E ., and she lied about the reason his phone number often appeared on her phone bill.

In early 2008, Appellant discovered she was pregnant. By March of 2008, she decided to end the illicit affair, but admits that she did not clearly communicate that to C .H.E . Instead, she continued to have frequent, nonsexual contact with him. She met some of his family members and kept him informed about her prenatal medical care: Appellant's husband remained unaware of the affair. He testified that had they not been having regular sexual intercourse, her pregnancy would have been a "huge problem" that he would have addressed immediately.

On September 8, 2008, Appellant gave birth in Kentucky to a baby girl, N.R.S. Two weeks later, she and C .H .E. arranged for a DNA test to determine if he was the father of N.R.S. The DNA test revealed a 99.9429% probability that C.H .E . was the baby's father. When C.H.E. expressed a desire to acknowledge his daughter and to be a part of her life, Appellant informed her husband of the affair.

On October 14, 2008, C.H.E. filed a paternity action in the Kenton Family Court pursuant to KRS Chapter 406.

After this decision of the Kentucky Supreme Court, everything in the recitation of facts set forth above that is not in bold would have been excluded from testimony on the grounds that it was not legally relevant. Like "no fault" divorce, this innovation will save the husband, mother, genetic father, lawyers and judge hours of uncomfortable testimony about the sex lives and feelings of married couples and adulterers, will bring increased certainty to the law, will fit more squarely with modern views of what is just and fair, and will generally dispense will court hearings on that issue of paternity entirely - the real trial will take place in some genetic testing laboratory based entirely on scientific principles that are far more reliable than court testimony in this situation, rather than the ordinary court evidentiary process.

The notion that someone who is an established parent of a child is entitled to participate in the parenting of that child, absent of finding of unfitness, is a bedrock principle of family law in every U.S. state and probably has constitutional dimensions at this point. Also, given that it is common place in modern society for people who are not married to each other and may each be currently married to other people to co-parent a child, it is not as if this situation poses any special difficulties for family courts or societal institutions that deal with parents and children to handle.

What did the dissenting judges say?

The Chief Justice's dissent was lawyerly, and addressed the conclusiveness of the presumption, stating in the pertinent part:

The General Assembly could have adopted substantially the same
definition by incorporating into KRS 406 .011 the language proposed by the drafters of the Uniform Act on Paternity (1960) : "[a] child born out of wedlock includes a child born to a married woman by a man other than her husband." But it chose not to; instead, it explicitly "includes" in KRS 406.011 "a child born to a married woman" as a child born out of wedlock only "where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child ." See J.N.R., 264 S .W.3d at 590-91. And while use of the term includes might otherwise signal an illustrative rather than exhaustive term, I believe that the legislature's refusal to adopt the broad definition proposed by the Uniform Act on Paternity draft evinces a clear legislative intent contrary to the majority's interpretation. Given that KRS 406.180 states that KRS Chapter 406 only applies to births "out of wedlock" and that the legislature chose not to adopt the definition of born out of wedlock that the majority adopts today, I do not agree with the majority that the trial court had subject matter jurisdiction simply because a paternity action was purportedly filed under KRS 406.021.

Perhaps changing mores and the advent of DNA testing call for a
different approach than the one the legislature chose in decades past . If so, the legislature should undertake that broad policy debate. But I do not believe it is proper for this Court to amend the statutes by construing them in a manner contrary to the legislature's clear intent.

The Chief Justice does not engage, perhaps because it was not adequately briefed, or perhaps because the dissent was a lost cause anyway, the constitutional argument that his proposed reading of the statute denies the father of the child a constitutional right to be recognized as a parent and to be involved in the parenting of his child absent abuse or neglect.

The other two dissenting justices on the Kentucky Supreme Court wrote a short opinion that was weak on the law, weak on the facts and classic cases of pounding on the table with characteristic Appalacian bluster and evangelical moral outrage. They also raise another issue. In their view, the problem is not necessarily that the presumption that a man married to the mother is conclusive, but that a challenge to that presumption can be raised by someone other than the man married to the mother. Thus, they want to allow a cuckolded man to have the right to challenge paternity, but also the right not to have the paternity of children of his wife, whatever their genetic ancestry may actually be, contested by "the other man." They state in their short opinion:

We vigorously dissent under the same banner for which we wrote in J.N.R. v. O'Reilly, 264 S .W.3d 587 (Ky. 2008). In essence, we hold strongly that only partners to marriage have the standing to question the legitimacy of children born during their marriage. Interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle. The majority here deals with only one child. We speak for the thousands of children yet unborn . For centuries, the institution of marriage has "been the rock in the shadow of which children are born, shaded, protected, and nurtured." Id. at 599 (Cunningham, J., concurring in result only). Our extended comments in the J.N.R. case will be left to speak for our refusal to stand quietly by as the legal institution of marriage is surrendered to the funeral pyre of modern convenience and unanchored values. We refuse to bow down to the "Gods of the Market-Place ." RUDYARD KIPLING, THE GODS OF THE COPYBOOK HEADINGS (1919) . Who is right and who is wrong in our debate will be left to the long view of history.

It will be interesting to see how this decision plays out in the next election for Kentucky Supreme Court seats in this religiously conservative state: "The Court has seven justices, each of whom is elected for an eight-year term from one of seven geographic districts in non-partisan elections. The justices' terms are staggered; they do not all run for election in the same years. The justices choose one of their number to serve a four-year term as chief justice[.]"

The Chief Justice (from a district that includes Bowling Green, Kentucky) and the lead author for the other dissenting opinion face the voters in 2015. The concurring judge to the other dissenting opinion faces the voters in 2013 in the 7th Supreme Court District, which consists of 22 counties in Eastern Kentucky. Three justices in the majority face voters in 2016 and the other faces voters in 2015.

READ MORE - Parental Rights For The Other Man

What Drives Court Dockets In Colorado?

The 2010 Annual Report of Colorado's Judicial Branch, as usual, is one of the best empircal descriptions of what is going on in the state courts. This year is notable for including beter data about hearings, as well as "trials" than previous years.

Overview

Colorado's superior jurisdiction judicial branch courts are its District Courts, which are unified in most of the state, but in Denver are divided between the District Court, the Denver Probate Court and the Denver Juvenile Court. The Denver District Court also has a number of special responsibilities that do not involve a separate court as the venue for cases involving state government that are localized to the capital. Seven district courts have divisions that double as "water courts."

Colorado's primary inferior judicial branch courts are its County Courts. Outside Denver, these are identifical, but in Denver the County Court also doubles as a municipal court where ordinances are enforced. Small claims court is a division of the County Courts. All of these courts, except for the Denver County Court, are part of the state judicial system with judges appointed by the Governor. Denver County Court has a hybrid city and state status.

Crimes other than ordinance violations are prosecuted by District Attorneys, who are locally funded and elected from a judicial district but are formally considered to be state employees.

Ordinance violations at the county level are generally prosecuted in county court by country attorneys (a position distinct from the District Attorney that mostly is responsibile for representing county government as in house counsel in civil matters).

Ordinance vilations at the city level are generally prosecuted in municipal courts that municipalities may established by city attorneys. Municipal courts are regulated by state law, by have judges appointed by the city, are administered by the city and are not part of the comprehensive state record keeping system in place for state courts. In practice, it is common for the same person to be a municipal judge for multiple municipalities, and/or to be both a part-time county court judge in a rural county and a municipal judge at the same time. State law limits the magnitude of the criminal sanctions that can be imposed for ordinance violations (basically limiting the punishment to that available for less serious state misdemeanors) and provides for the appeal of municipal court judgments to the state courts, in a manner typical to that of other appeals for courts of record with lawyer judges, and with a trial de novo in the case of municipal courts not of record. There are 273 municipalities in the State, but not all of them have municipal courts and very few of them have a full time municipal judge. The lion's share of municipal court cases concern traffic violations prosecuted via municipal ordinances, although they also include a smattering of ordinance violation cases.

Non-lawyer judges are permitted in rural county courts and in municipal courts not of record, but in practice, there are no more than four non-lawyer judges in the state courts and very few who preside over municipal courts.

Trials, Hearings and ADR

There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.

There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).

There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn't necessary capture the full number of active litigations in these cases.

There were 183 mental health hearings in District Court: 49 for involuntary committment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.

There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.

In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.

In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.

These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren't the moral equivalent of a final bench trial in a case (e.g. schedulinng hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).

Compared To Case Loads

District Court Civil

There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.

Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee's office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.

Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don't produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.

These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court's work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.

There were 30,236 cases of other types on the District Court civil docket in the state.

About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial

About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many "paperwork intensive" cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.

Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.

This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases.

District Court Criminal

There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).

Probate Filings

There were 12,189 probate filings in Colorado in fiscal year 2010.

Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved "estates." All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.

Denver's Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver's Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor's claims, and hearings related to accountings in probate and guardianship and conservatorship estates.

Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court's office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.

In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.

County Court Civil

County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.

This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).

Court Sponsored Mediation

The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.

For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.

Analysis

On the civil side, courts are primarily institutions in which people invoke their rights and provides a formal forum for official notice and communication between parties involved in a claim; court imposed dispute resolution in civil cases is by comparison almost a side proposition, particularly in cases where the gravamen of the action is to secure compulory means by which to collect a contractual or quasi-contractual or government agency imposed debt.

Cases involving bona fide disputes over liability in civil cases, the analysis of which makes up the bulk of the training of new lawyers, makes up a very modest share of the litigation docket. Moreover, a very large share of all of those litigated cases with disputed liability involve extremely ordinary contract terms and claims and defenses, or tort suits for simple negligence in utterly pedestrian fact scenarios (e.g. car accidents and slip and falls).

Lenders, landlords and government agencies make up the vast majority of plaintiffs, and a very large share of the rest of the cases are domestic or quasi-domestic in nature.

Where there are bona fide disputes, they frequently involve cases where the existence of an event giving rise to liability is not seriously contested, but there is legitimate dispute over the appropriate remedy, mostly because the facts are muddy and the law (e.g. in domestic relations cases or in non-economic damages cases) does not provide a definitive answer even in cases where the facts are known with absolute certainty.

Courts, of course, have authority to adjudicate a far, far wider range of disputes, but the exceptions make up a surprisingly small share of the docket relative to the bread and butter component of the docket.

READ MORE - What Drives Court Dockets In Colorado?

Service Announcement

The merit selection panel for the Second Judicial District selected three of the nine nominees from which Governor Hickenlooper will select the next Denver Probate Judge on Tuesday.

One was a former Denver Probate Court magistrate who served for much of outgoing Judge Stewart's tenure. One is the current Denver Probate Court magistrate. One is a long time magistrate in Denver in its non-probate divisions. I am not that Denver lawyer and instead, will be continuing to have a private practice law. It is now up to Governor Hickenlooper to make a choice from these three candidates in the next two weeks, and as I probate lawyer who practices regularly in that court, I sincerely hope that he makes a wise choice between the three very different candidates. I appreciate all the support I received in the process, which was conducted in a fair and orderly manner. Colorado's method of selecting judges is a far superior way to obtain qualified judges than either ordinary judicial elections (we do have retention elections, but those are quite different), or the kind of exclusively political appointment process we have for the federal judiciary and some state courts.

For those of you who read this blog, that means that a brief hiatus from making posts that would be inappropriate for someone subject to the Canon of Judicial Ethics, most notably, partisan politics and certain kinds of posts on religious topics. In the next few day, I will be rebuilding the sidebar links (not necessarily exactly as I left them), and restoring archive functionality.

I anticipate having considerably less time available to blog for the indefinite near future, due to a major new source of legal work (hurray!), and also simply want to keep this space from getting stale. Towards that I end, I plan on rethinking and refocusing what I write about and how I do it.

I'm not sure exactly what I will come up with, but don't be surprised to see some changes. This post is two short of being post number 5400, and this July will be the sixth anniversary of this blog. I plan to make the change over on this anniversary, although there will be some beta testing of some of the concepts in the next nine weeks.

I definitely won't be converting to a group blog or taking guest posts - I don't have time for that kind of brain damage and coordination in a catch as I can personal hobby.

But, I'm looking at ways to give a bit more structure and direction to my posting and I am considering imitating Maju and splitting my currently eclectic blog into two or three more focused ones, although, unlike him, I will definitely make sure that "Wash Park Prophet" continues to exist as one of those blogs, mostly (with all due respect) because "Wash Park Prophet" is a bit catchier a name than the name of Maju's old omnibus blog, "Leherensuge."

The new Wash Park Prophet will include, at least, all matters related to Colorado in particular, from local politics, to infill and Denver neighborhoods, to praises of and rants about local businesses. One or more other blogs with still undetermined names will cover a significant chunk of the other stuff that I blog about here.

I am still playing with precisely which other topics to separate out, what banner(s) they will fly under, and what format changes, if any, I want to make at the same time. This blog covers an immense range of territory and it is perhaps a foreseeable curse that the son of a man whose academic career was profoundly interdisciplinary finds it tricky to fit his own musings into neat disciplinary boxes. The main criteria will be practical. Which topics overlap the least and what descriptions produce the clearest clusters (acknowledging that on rare occassions, a cross-post may be in order)? I am also considering a retooled set of post categories.

"Wash Park Prophet" will stay at this web address and continue to use the blogger system, because I want the address and format to have continuity, although it will have a visual face lift. The new blogs will not necessarily be blogger blogs and suggestions for the best alternative platforms are welcome.

READ MORE - Service Announcement

Does Law Have Insufficient Visual Drama?

Once upon a time, where you wanted to sell real estate, you handed some soil or twig for the property to the buyer in what was called livery of seizen. Couples kiss, wear traditional costumes, and exchange rings when they marry in front of a crowd. One of the traditional ways to revoke a will (recently litigated in Colorado) is to destroy or deface the physical document (which leads to a number of peculiarities of probate law). Traditionally, wills were read aloud after a death, although that rarely happens these days. Even though it no longer legally matters, it is traditional to seal a contract with a handshake. When sports teams finish a game, win or lose, the players each slap hands saying "good game", emotionally putting an end to disputes over the details that led to the final result. Churches acknowledge affiliations to their faith with dramatic baptisms in the Christian church and a vividly memorable circumcision ceremony for infant Jewish and (at least in traditional societies) adolescent Muslim boys. Basic trainees in the military, men entering monastic orders, and prison inmates have their hair shorn, and are stripped of almost all of their personal possessions.

The current story arc in the webcomic Red String's (set in Japan but written by Gina Biggs of Georgia) features Hanae Niijima, a lesbian whose mother will not accept the fact that she has come out or acknowledge Hanae's true love Fuuko Akimoto. The set up to the scene is in this dialog:

Hanae: Why can't you be happy for me? This is who I am. This is ME.

Mother: It's NOT you. You were my sweet little girl who liked flowers and unicorns; who loved to be dressed up in frilly clothes and have me curl your hair. You were never a tomboy!

Hanae: That's STILL me. You think you have to be boyish to like a girl? That's . . .you can't believe that.

Hanae decides the overcome the conceptual block that seems to be getting in the way of her mother by making a visual statement:

Hanae: Fine. [Grabbing scissors with one hand and her long flowing curly hair with the other.]

Mother: What are you doing?!

Hanae: If its frills and curls keeping you from accepting this then I'll get rid of them. Will that work?

Hanae then hands a long pony tail of crudely cut off hair into the hands of her shocked mother who sits, holding it, staring off into space.

Obviously, I'm not recommending that this become a ritualized part of the process of coming out that is mandated in any way. But, powerful visual dramas can often convey meanings about abstract concepts, particularly emotionally charged ones, that some people have a hard time grasping from mere words.  Hanae's mother might be able to understand from the hair in her lap what she couldn't when her daughter merely spoke to her.

For example, one of the classic problems that one sees in modern family law litigation is that one or both of the people who once were married, or at least a loving couple, can't let go of that relationship. The service of the divorce petition, the signing of the papers, the dryly worded court order ending a marriage and providing for the sharing of the children and property of the marriage, and often a restraining order as well, don't communicate to the former member of that relationship with adequate emotional force that the relationship is really, once and for all, over.  Some people are simply beyond reaching by any means of communications, but a large number of people who go through family law proceedings simply don't really understand at an emotional and subconscious level what has happened until much later, even if they can parrot the court's ruling.

Perhaps if that message could be conveyed with more visual drama in some universally accepted new ritual, more people who move on, and there would be, as a result, less senseless fighting driven by old emotions instead of new practicalities. The demise of fault based divorce has made the process much more antiseptic for all involved in the process, but have we overdone it to the point of failing to really acknowledge in an emotionally valid way that not just the legal construct of the marriage, but also the emotional reality of the relationship that it approximates, has ended. Shouldn't the symbolism and ritual that ends of marriage need to be even more powerful and less subtle than the symbolism and ritual that starts one?

Adoptions tend to be even more understated, for fear of spooking the relinquishing parents, and not surprisingly, the main complaint that gets litigated in adoptions is that of relinquishing parents who claim they were properly appraised of the gravity of their actions.

A classic problem in consumer litigation of all kinds is the not infrequent failure of a debtor or consumer, already overwhelmed by paper and having trouble determining what is most important, to realize that a summons and complaint in a lawsuit is a once and for all speak now or forever hold your peace notice that has profound legal consequences if ignored.  This lack of understanding is one of the driver's of the almost ubiquitous paranoia about ulterior motives and about being cheated by one's betters found among unsophisticated people who have frequently been on the receiving side of litigation.

Perhaps we would do well to imitate the litigation practices of the protocol agents of the advanced civilization in the science fiction book "Jaran" by Kate Elliott, where legal disputes are announced by delivery of a physical baton in person by a courier, and one responds to the allegations at a mandatory in person appearance at the designated place and time, as inefficient as that may be, rather than simply enforcing the duty to appear by entering a default judgment against a party who does not appear (one that is often forgotten until property is seized pursuant to the judgment).

I have no empirically evidence to support the theory that more dramatic visual drama in the legal system would make any difference at all. The modern trend has been to strip away formalities, arcane language, pompous court room surroundings, wax seals, fancy ribbons and the like from legal matters. Instead, modern legal proceedings and legal facilities, favor plain English, the bare minimum of in person appearances, contemporary but understated and inoffensive surroundings suited for efficient, processing of business matters, dispenses with wigs and obtuse morning suits, and use very simple seals and acknowledgements - relying on the ability to confirm orders with third party repositories rather than lack of counterfeitability for reliability. Many documents that used to have to be notarized are now simply signed under penalty of perjury with no third party verification of identity or intent.

For lots of purposes this trend may be a good one. It demystifies the legal system and makes it more accessible to pro se parties. Much of what courts do is as much administrative business as it is emotionally meaningful decision making. For the most part, people prefer an inexpensive, quick, form driven informal probate process to the traditional succession proceedings of courts of equity will all their pomp and circumstance. And, some parts of the court process, like the delivery of jury verdicts finding someone guilty or not guilty, have managed to hold onto some of the drama that gives them emotional power. But, maybe some of the time, particularly in civil matters that don't involve business people and may have consequences for people who do not have the same cultural heritage as the lawyers and judges who are running the system, a higher touch, lower tech approach is in order and would make courts more effective. It is certainly a hunch that would be worth exploring with more systematic research.

READ MORE - Does Law Have Insufficient Visual Drama?

Federal Criminal Prosecutions Waste Money

How are we using federal criminal justice resources?

Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813.... Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209....

Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.

Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.

Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.

Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.

Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.

Prosecuting and incarcerating someone whose only crime is being a repeat illegal immigrant at $30,000 per person per year, rather than simply deporting them at a cost of a few hundred bucks, or less, makes no sense. Neither does devoting federal criminal justice resources to marijuana possession cases. Drug possession generally is an issue that state courts are well equipped to handle. Nor does devoting substantial federal resources to very long prison terms for dirty old men with no prior criminal records who download child porn for free off the Internet (as the U.S. government does, despite its lack of mention in the statistics above), but have never actually harmed a child.

Notably, when gun toting, drug using judges are convicted of federal crimes, leniency is the rule.

READ MORE - Federal Criminal Prosecutions Waste Money

Obama Concedes DOMA is Unconstitutional

Learning a lesson from the decision of California's leaders in the Prop 8 litigation, where the state refused to appeal a trial court finding that Prop 8 was unconstitutional (the standing of the ballot measure proponents to appeal in that case has been certified to the California Supreme Court), President Obama has directed the Department of Justice to stop defending the constitutionality of Section 3 of the Defense of Marriage Act. The Justice Department has said:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman: . . . The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. . . . [T]he Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. . . .

Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Colorado's Attorney General, John Suthers, has filed an amicus brief arguing that the Courts should uphold the constitutionality of Section 3 of the Defense of Marriage Act, despite the fact that it does not directly impact state law, over the outraged protests of supporters of gay rights in Colorado.

Section 3 of the Defense of Marriage Act states that the federal government, when applying federal law, shall disregard legal state law marriages that are not between one man and one woman.

The key parts of the Defense of Marriage Act state that:

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of "marriage" and "spouse":

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

The decision does not by itself affect Section 2 of the Defense of Marriage Act which provides that the full faith and credit clause of the United States Constitution does not extend to same sex marriages. Thus, state, local, territorial and Indian tribe governments are not federally required to honor same sex marriages that are valid in other states.

Will President Obama's Position Be Sustained In the Courts?

President Obama's decision is likely to stick. Generally, the only parties with standing to participate in a case where a same sex couple alleges that their rights have been violated by Section 3 of DOMA are the federal government and the couple(s) bringing the lawsuit. The U.S. Supreme Court, particularly in recent years, has construed taxpayer standing (alleging the federal funds are used for an unconstitutional purpose) and citizen standing (alleging that the federal government is acting unconstitutionally) very narrowly.

I'll have to look later at the standing of members of Congress to speak for the federal government in litigation or intervene in lawsuits attacking the constitutionality of a statute. The general rule is that the Justice Department is the sole representative of the U.S. position. But, federal courts have the authority, although not necessarily the obligation, to appoint a lawyer to argue for a position like that constitutionality of a law or the rights of pro se parties, that is not represented by a party in court.

To speak for Congress, per se, or even one house of Congress, would ordinarily require the passage of a resolution by Congress or at least a house of Congress. But, members of Congress who sponsored or voted for legislation might be viewed by a court as suitable intervenors to argue to a court for a position that no party to the suit is willing to advance.

An IRS ruling last year holding that domestic partners in California were entiteld to split income for federal income tax purposes due to community property principles foreshadowed the changing position of the Obama administration on this issue.

Consequences

From a practical perspective, some of the main consequences of the decision are that gay married couples can file tax returns with married filing jointly status (and receive all of the benefits of married couples for estate taxation purposes), that same sex married couples qualify for federal immigration law treatment of spouses, and that same sex married couples can receive Social Security survivors benefits and spousal Veteran's benefits. The Veteran's benefits issue looms large now that Congress has repealed the "Don't Ask, Don't Tell" law.

Also, while not quite spelled out by this ruling, the implication seems to be that a same sex couple that is legally married in any state will thereafter be treated as married by the federal government, even if the state in which they live does not recognize same sex marriage. Since some states do recognize same sex marriage (and allow non-residents to be married in their state), that means that same sex couples that go to those states to be married and then return to their home states can receive all of the federal government benefits of marriage.

In addition to undermining the efforts of state governments to deny federal benefits of marriage to same sex couples in their own states, the determination also increases the stakes in the civil union v. gay marriage debate in the states. Until now, this has been a strictly symbolic debate. A civil union bill (SB 11-172) that creates as the legal rights and responsibilities of marriage under state law, but doesn't call it marriage (such as one pending in the Colorado General Assembly right now) would not constitute marriage under federal law, while one that calls the relationship marriage would have that effect.

Thus, states are left with multiple options including: (1) disallow both civil unions and same sex marriages, but acknowledge that couples with legal sex sex marriages from other states may receive federal treatment as married, (2) allow civil unions but not same sex marriage, which gives copules state law marriage rights but denies couples federal treatment as married until they get legally married in another state, or (3) allow same sex marriage.

Also, while Section 2 of DOMA does not require states to recognize same sex marriages from other states, it also does not prohibit them from doing so out of comity. In many states, the issue of when comity should recognize other state's legal acts when the full faith and credit clause of the United States Constitution does not require it has been left to the courts rather than being made a subject of legislation. Thus, judges could choose, influenced but not bound by the Section 3 of DOMA interpretation, to honor out of state same sex marriage even though the constitution and federal law do not require them to do so.

Civil unions have been a sensible legislative objective for same sex couples in many states, like Colorado, where the state constitution has been amended to prohibit same sex marriage, but not more broadly to prohibit civil unions or domestic partnerships of same sex couples as well. But, there will be increasing pressure to actually call this marriage legislatively, and as courts evaluate the issue.

READ MORE - Obama Concedes DOMA is Unconstitutional

Ivory Coast Type Election Issues In Cincinnati

Hamilton County, Ohio, whose principal city is Cincinnati, is faced with an election law issue pertaining to an open, elected partisan juvenile court judgeship election dispute upon which the Ohio Supreme Court and Ohio Secretary of State have ruled one way (don't count the ballots), but a federal district court judge, Chief Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio has reached a contrary result.

What is the Board of Elections member (the Board itself is split two to two and does not agree) to do? The officials in question now face a contempt of court hearing today, which puts the officials at risk of personally going to jail or being fined, for failing to honor a federal court order that is contrary to a state court order.

Generally, elections are matters of state law. But, if a federal constitutional right or federal statute is implicated, federal law supersedes state law. And, while the 11th Amendment prevents state governments from having to deal with cases in federal trial courts, state and local government officials in suits not seeking money damages and arising under federal law, and suits against governmental entities distinct from state governments are not subject to that limitations. Doctrines that one learns when studying the federal courts generally provide that a final ruling of either a federal court or state court is binding on the parties who may not then forum shop for another judge with a more favorable outlook on the case. In particular, a federal trial court may not generally sit as an appellate body with regard to a state court ruling in a civil matter. But, since the law in this federal v. state jurisdiction area is so complex, even in cases arising out of purely state office elections (which are far simpler than cases arising out of federal elections, like Bush v. Gore, where a host of special constitutional rules apply), judicial rulings are sometimes hard to predict in this cases and judges come to different conclusions in the face of hot partisan conflict that often sees judges and elections officials lining up along the lines that their political histories would suggest, despite their duties to enforce the laws impartially.

Republican John Williams leads Democrat Tracie Hunter by 23 votes in the official count, but the parties disagree on how to handle 849 provisional ballots that were not counted.

The ballots were set aside on Election Day because poll workers believed they were cast at the wrong precinct.

Dlott, however, has said 149 of those ballots were cast at the wrong precinct because of poll worker error and should be counted. Many may have been cast at the wrong table even though voters cast their ballot in the right building.

The [federal] judge said failing to count ballots that were disregarded through no fault of the voter would violate the 14th Amendment’s requirement that all citizens receive equal protection under the law.

Partisan, Personal and Federalism Issues Involved

There is a partisan dimension to this struggle as there is in most election law cases.

The Board of Elections is split two posts for Republicans, two for Democrats, split evenly by design.

The Ohio Secretary of State is an elected Republican and favors the Ohio Supreme Court position that lets the Republican judge win. Six of the seven officially non-partisan elected justices on the Ohio Supreme Court were nominated by the Republican party and known to have Republican affinities.

The Democrats on the Board, however, would like a recount, as the federal judge, who was appointed by President Clinton, a Democrat, in 1995 when Democrat John Glenn and Republican Mike DeWine were U.S. Senators from Ohio, has ordered. Dayton native Dlott is married to Stanley M. Chesley (a trial lawyer more familiar to me than almost any lawyer in Denver by name, despite the fact that I haven't lived in the area for a copule of decades), lives in the most expensive single-family home ever listed in Greater Cincinnati, shows dogs, and has won praise for her racial sensitivity and even handed management and resolution of complex cases.

The Secretary of State is (by design) normally a partisan tie breaker for county boards of election, in this case on the issue of whether the federal court ruling should be appealed to the 6th Circuit Court of Appeals. If the 6th Circuit overules the trial judge, the conflict between the courts no longer exists, but, should the United States Court of Appeal for the 6th Circuit (which is neither particular conservative nor particularly liberal as federal appellate courts go in the United States at the moment) affirm the trial court's ruling (in which she is entitled to considerable deferrence in a number of respects), its authority vis-a-vis the Ohio Supreme Court's ruling is just as ambiguous as the trial court's ruling. Only the U.S. Supreme Court has clear jurisdiction over both the state and the federal judges in this case.

The case also pits concerns about federal involvement in state and local government operations against concerns about fairness in elections in a system controlled by political allies of the aggrieved candidate. Stereotypically (for modern times), it is the Republicans who are pressing a state's rights argument in this case, and the Democrats who are pressing for federal involvement in the interest of civil rights.

There is also a perceived racial element to the contest. Hamilton County is 70% white and 25% African-American, with the African-American population predominantly in Cincinnati, the central city, ahd the white population disproportionately in suburban Hamilton County. Democrat Tracie Hunter, a former public defender and guardian ad litem, who is also a pastor and radio personality is an African-American woman, while Republican John Williams, a former prosecutor campaigning with a tough on crime agenda in a court where most of the defendants are African-American juveniles and African-American parents, is a white man whose website prominently displays white Hamilton county suburbanites in the background, in a county just on the border between Northern leaning Ohio and Southern leaning border state Kentucky.

To be perfectly honest, if I had been forced to vote in that election, I wouldn't have been terribly happy with either of my choices. Both candidates are partisans seeking a post that demands neutrality and evenhandedness.

Voters were very evenly split in the race, and usually, in this kind of situation, where a significant number of provisional ballots are at issue, a recount will favor a Democrat. It wouldn't be surprising for an apparently heavy handed or partial ruling to lead to a riot in Cincinnati.

The Stakes

This all sounds like a very technical issue of civil procedure and election law, with valid legal considerations on both sides of the case.

The outcome of this case won't directly affect anyone who doesn't do have a connection to Hamilton County Juvenile Court, a county where 99.7% of the population of the United States doesn't live, and with which 95%+ of the population of Hamilton County will never have any business. It has one other judge in addition to the position at stake in this election, and the Juvenile Court's rulings are very important to those who are before the court, and who in making child custody decisions and juvenile delinquency sentencing decisions has immense discretion.

Life will go on with either resolution of the matter, so long as it is resolved, and there is really no room for compromise. Neither candidate has shown any basis for a do over of the election, only one can be elected for a long term to the only judgeship on the court, and the judicial ideologies and the personal experiences that the candidates bring to the court are very different. Either way, unhappen litigants can try to appeal rulings without a proper legal basis.

Cote D'Ivoire Compared

But, while this particular case in Ohio won't change the world, an extremely similar legal issue in Cote D'Ivoire's 2010 Presidential election, in West Africa, in a country only a little larger in size and area than Ohio (it has 20.6 million people up by a third in the last decade alone, while Ohio has about 11.5 million although probably a similar number of adults of voting age; it has 124,502 square miles, while Ohio has 44,825 square miles; both have strong regional and ethnic partisan divides), in which a Board of Elections and independent election observers came to one conclusion on the outcome of a contested election dispute arising out of vote counting concerns (in favor of the contesting candidate Alassane Ouattara), while the Constitutional Court of the country came to a contrary determination (in favor of the incumbent President Laurent Gbagbo).

The election dispute in Cote D'Ivoire has brought that country to the brink of civil war, despite the absence of a complicated mix of federal courts. Scores or hundreds of people have died already in the several week old dispute. The international community has sided with the challenger (in part on the merits, and in part because the incumbent has manipulated the electoral process in undemocratic ways that were to be put behind the country in free and fair elections in 2010), while the incumbent appears to have practical control of most instruments of state power in the country.

UPDATE: The 6th Circuit has entered a stay in the case. All the original source documents you could ever want can be found here.

READ MORE - Ivory Coast Type Election Issues In Cincinnati

Short Takes

* I went to the Burger King restaurant in Cherry Creek earlier this week to get a cheap breakfast sandwich while I waited for the bank to open. The location was previously famous for being the parking nazi of Cherry Creek North, aggressively booting people in its lot. This time, I had to wait several minutes for anyone who worked there to appear, even after calling out an "anybody home?" Their bathroom is also the skankiest in all of Cherry Creek.

* Radio stations in Denver are in a slump. I have twelve FM and six AM pre-sets on my car radio, which I regularly revise with the best available options on the airwaves. Yet, several times in the last week, the elevator music in retail stores around town has been fresher and more interesting than what I can hear on any of those eighteen stations.

* Science Fair is over for another year. Next up, History Day.

* What is with all of the little banks on and around 1st Avenue in Cherry Creek? There must be twenty of them in the neighborhood, most with just one or two locations. You'd think it was Bern, Switzerland, or Luxembourg, or the Cayman Islands. I almost never see anyone actually doing business there, but presumably they have enough customers to stay afloat. I presume that they are catering mostly to a high end, local market clientele making loans to businesses, real estate developers, wealthy individuals and medium sized businesses, but I'm really not entirely clear what the business model is, although it seems to be a very similar business model for all of the banks that are not retail customer oriented.

* Even though Denver was almost 20% below average in precipitation in 2010, the snow pack in all of the state's major river basins was well above average, and since that is what really matters most for both Front Range water users and for the Colorado tourism industry, it's all good.

* Justice Kagan wrote her first U.S. Supreme Court opinion on the subject of the proper way to calculate the car expense in Chapter 13 plan calculations. The ruling was 8-1 with only Scalia dissenting. I agree that her reading was the better interpretation of the statute (it disallowed the expense when there was no actual loan or lease on a vehicle that had to be paid). The court took the case because there was a circuit split on the issue.

* The Article I immigration court based in Denver has a new judge who is married to one of the ICE prosecutors in the Denver office who presses these cases. The new administrative law judge must "must recuse herself from any case directed by her husband" but I have real doubts about whether that is sufficient to remove the appearance of impropriety in this situation.

In an ordinary court, only part of the docket involves cases brought by the government. But, all of the cases before this administrative law judge will be brought by the office of which her husband is a part. The pervasive association the new immigration judge has with one side of every single case before her creates a clear appearance of impropriety. I can't imagine how I could possibly be impartial in her shoes. Immigration judges have immense discretion. Statistically, the judge a person with a case in immigration court is assigned to is the single most important factor in determining the outcome of the case. Inappropriate use of that discretion by immigration judges, mostly to the detriment of immigrants, has flooded the federal appellate courts in recent years, and has cast grave disrepute on the credibility of the immigration courts as institutions where any meaningful kind of due process exists. This development certainly doesn't help the situation. If the recusal were from all cases with ICE involvement, that would probably resolve the problem, but that isn't a viable option for an immigration court judge.

I feel for the couple, who are no doubt both very smart, competent immigration lawyers, each of whom has a good federal government jobs. Neither has personally done anything wrong. But, maintaining this kind of status quo, even with recusals from cases where the other is personally involved really doesn't cut it. In government contexts the concern is not primarily ex parte communications about particular cases or personal gain (the government lawyers don't win or lose anything as a result of the outcome of particular cases), but about bias towards one side or the other on the part of the office, which is just as strong even without personal involvement in the same cases. We are not such a parochial backwater in Denver that we have no choice but to have a conflicted immigration court system because no one else is up to the job.

* Once again, Denver cops are being sued in a police brutality case and fraudulent police report case arising from a January 2009 traffic stop. Westword has more details.

* Marginal Revolution is a superior blog that I will add to my sidebar in due course.

* The percentage of women in Colorado's General Assembly (41 out of 99) is the highest of any state in the United States. The national average is 23.4%.

* Republicans are constantly accusing liberals of inventing constitutional rights that aren't supported by the language of the constitution. But, these days, the shoe is on the other foot. John Tomasic at the Colorado Independent nails it with this headline:

King to Polis: Healthcare law infringes on right to have babies in garbage cans

He goes on to explain:

Iowa Rep. Steve King today on Capitol Hill at a Rules Committee hearing on the GOP plan to repeal the healthcare reform law. He ended up telling Colorado Rep. Jared Polis that the law is unconstitutional because, for instance, it forces uninsured women who deliver babies in garbage cans to buy health insurance. Polis, aghast, searched for words.

Isn't funny how the rights Republicans want to invent always seem to be ones you have no desire to actually exercise?

READ MORE - Short Takes

9th Circuit Punts On Prop 8 Standing

The U.S. Court of Appeals for the Ninth Circuit has been charged with deciding if proponents of the anti-gay marriage Proposition 8 in California have standing to appeal a U.S. District Court ruling that Proposition 8 is unconstitutional. Officials from the State of California, who agree with the trial court, have refused to do so.

The 9th Circuit has dealt with this issue by asking the California Supreme Court in what is called a "certified question" if proponents of a ballot initiative have standing to defend it under state law, which would confer the right to bring an appeal even in the absence of a federal law basis for doing so.

In practice, it is extremely likely given the prior litigation history of the case and recent relevant California Supreme Court rulings, that the California Supreme Court will find that the proponents have standing to appeal under state law. Thus, the trial court ruling holding that Proposition 8 is unconstitutional will remain in force and gay marriage will very likely resume in California.

In theory, the federal standing issue could be appealed to the U.S. Supreme Court, which could grant certiorari to review it (or possibly consider it as a request for a writ of mandamus, another form of appeal in a situation where the name of the kind of appeal taken doesn't matter much). But, because the key issue pertains to the rights conveyed by state law under a state initiative process, and the prior federal precedents on that issue are fairly clear, the U.S. Supreme Court is unlikely to do so, and would be bound by any California Supreme Court determination of state law issues in any case.

If the California Supreme Court rules that the ballot issue supporters lack standing, as I predict that it will, there will be a ruling in force that effectively legalizes gay marriage in California via federal court order, but because no decision on the merits has been made at the 9th Circuit or U.S. Supreme Court level, the precedent will have no effect outside the State of California.

READ MORE - 9th Circuit Punts On Prop 8 Standing

Colorado Gets A New Federal Judge

President Obama's nomination of William Martinez to the U.S. District Court for the District of Colorado was confirmed by a 58-37 vote in the U.S. Senate (including two Republicans) on Tuesday. The seat had been vacant for two years. It is a lifetime appointment.

There is one vacancy left in Colorado's federal trial court: "R. Brooke Jackson, the chief judge of the 1st Judicial District in Jefferson County, has been nominated for the other spot." But, the nomination has not yet been considered by the Senate Judiciary Committee.

READ MORE - Colorado Gets A New Federal Judge