Is US Court’s Gay Marriage Ruling a Threat to Democracy?

BarristerToday’s gay marriage decision from the United States Supreme Court has the potential to create an even greater divide between America’s already polarized electorate.

In a 5/4 decision, the Court invented a new civil right under the banner of equal protection and due process of the law pursuant to the Fourteenth Amendment, by ruling that individual States cannot ban same-sex marriage.

The decision is neither unexpected nor surprising, however the chasm between the slim majority and the minority opinions is startling.

Mr. Justice Scalia characterizes the decision as a threat to American democracy and decries a system of government that makes the people subordinate to a committee of nine unelected patrician lawyers, who are strikingly unrepresentative of the people they serve. He notes the Court’s judges all have law degrees from Yale or Harvard, four of the nine are from New York, eight grew up in either east or west coast states, with only one judge from the large expanse between the two coasts, and not a single south-westerner.

He continues his provocative opinion by musing that the majority’s discovery of a new fundamental right in the Fourteenth Amendment has curiously been overlooked by some of the brightest legal minds in America, referring to Oliver Wendell Holmes, Learned Hand, Louis Brandeis, Benjamin Cardozo, and other brilliant jurists of the past.

Chief Justice John Roberts, in a separate dissent, writes that the majority has not just ignored America’s entire history and traditions but actively repudiates it. He laments that the Court’s imposition of its “reasoned judgment”, devoid of legal principles, or as Justice Scalia observes “lacking even a thin veneer of law”, is actually a lost opportunity for the gay and lesbian community who can no longer obtain true acceptance from their neighbours, “just when the winds of change were freshening at their backs”. Here the Chief Justice is acknowledging that only thirteen states now ban same-sex marriage.

Chief Justice Roberts rejects the majority’s view that Americans who did nothing more than uphold their understanding of marriage as between a man and a woman should be criticized for their alleged disparagement and disrespect of gays and lesbians. He describes the Court’s denouncement of citizens who uphold a Biblical view of marriage as a gratuitous assault on their character:

“It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.”

Mr. Justice Alito pursues a similar theme writing that the new law will be used to vilify those unwilling to assent to the new orthodoxy, noting that the majority compares traditional marriage laws to laws that denied equal treatment to African-Americans and women, an analogy that he fears will be exploited by those who wish to stamp out any vestige of dissent.

Justice Alito predicts the majority’s imposition of its views on America facilitates the marginalization of traditional Americans who may fall victim to the harsh treatment once afforded gays and lesbians. He says:

“…some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

Mr. Justice Clarence Thomas sees the majority decision as a threat to religious liberty, as does the Chief Justice who remarks that the “good and decent people who oppose same-sex marriage as a tenet of faith and their freedom to exercise religion is, unlike the right imagined by the majority, actually spelled out in the Constitution.”

Justice Clarence states that the decision on same-sex marriage should have been left to the political process, as the Constitution requires, and had that happened the religious implications would have been considered. He identifies the potential of a ruinous assault on religious freedom.

The chasm between members of the Court is no more apparent than in Justice Scalia’s mockery of the majority’s finding that the marriage bond creates “other freedoms, such as expression, intimacy, and spirituality”, to which he replies “Really? Whoever thought that intimacy and spirituality (whatever that means) were freedoms?…The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

While there is much to celebrate in the gay and lesbian community, there is a silent majority who are disappointed, even angry, that their rights under the democratic process have been trampled by five elite lawyers.

Lawdiva aka Georgialee Lang

More Bad Judges

10950859361151CDPMichigan’s District Court Judge Ken Post is at it again. You may remember him as the judge who found junior lawyer, Scott Millard, in contempt for protecting his client’s right not to incriminate himself. Millard became a folk-hero of sorts for standing up to Judge Post, even as the judge directed the court sheriff to remove him from the court and escort him to the cells. Judge Post was later disciplined and suspended from the bench for thirty days.

Judge Post’s latest stunt occurred when Philip Mallery, age 23, failed to appear for his scheduled court hearing on drug and traffic charges, although his lawyer was in attendance.

Judge Post telephoned the young man and left the following message:

“We’re waiting for you because you’re supposed to be here today, you missed a drug test yesterday, and it would appear as though you’re not coming today, so a bench warrant is being issued for your arrest. My strong suggestion is that you, uhhh, when you get this message you keep going because if I find you, it will not be pleasant. Have a good day.”

Mallery’s lawyer, Joshua Blanchard, whose law partner, Scott Millard ended up in jail, has now applied to have Judge Post recuse himself from his client’s case and has reported him to the Judicial Tenure Commission. Blanchard described Judge Post’s telephone call as “threatening” and queried why the jurist would take the action he did without knowing the reason for Mallery’s absence, speculating that his client could have been ill, in a traffic accident, or his wife could have died.

I’m looking forward to hearing Judge Post explain why he thought it appropriate to call an accused, rather than relaying a message through his lawyer, which is the usual practice.

However, Judge Post’s behaviour is trifling compared to the charges against Kentucky Circuit Court Judge Steven Combs, who was suspended last week pending a decision from the Judicial Conduct Commission.

The allegations include:

1. Presiding over a gas and oil case despite his personal financial interest in the company and using information elicited in the case to make personal demands to the company;

2. Making numerous aggressive calls to the local police insisting they lay criminal trespass charges against members of the public who parked in his church’s parking lot;

3. During one of the phone calls to police, he allegedly said the next police officer who pulled him over would get a “bullet to the head.” When confronted with the statement, he allegedly said, “I’m elected by the people and not pieces of trash like you.” He also called the police department “a bunch of thieves”;

4. Calling local officials names such as “coke head, Dumbo Donovan, Fishface Jimmy, and Retarded Reed the little police chief”;

5. Using court letterhead to send personal letters to county officials;

6. Calling a lawyer who appeared before him “a prick and a coward”;and

7. Soliciting donations from lawyers who appeared in his courtroom for a local high school golf team.

My research indicates that American judges fall afoul of judicial ethics rules much more frequently than Canadian judges, a phenomenon probably related to the absence of elected judges in Canada.

In many American states, like Michigan and Kentucky, judges are democratically elected and accountable to voters, however, the election of judges is also subject to the “tyranny of the majority” and is open to corruption and the purchase of votes.

Lawdiva aka Georgialee Lang

No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.

THESE FACTS ACCORD WITH MY EXPERIENCE THAT MANY FATHERS ARE MARGINALIZED AFTER MARRIAGE BREAKDOWN AND ALLEGATIONS OF DOMESTIC VIOLENCE ARE USED AGAINST GOOD FATHERS TO THWART A CHILD/PARENT RELATIONSHIP.

2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”

THE REALITY IS THAT IF FATHERS BRING MOST OF THE APPLICATIONS FOR RESIDENCE OR ACCESS AND A RESOLUTION IS TWO YEARS AWAY, THE STATUS QUO CARRIES ON TO THE DETRIMENT OF THESE FATHERS AND THEIR CHILDREN.

3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.

THE NAIVETY EXPRESSED IN THE AUTHOR’S FINDINGS ABOUT CONSENT ORDERS IS DISAPPOINTING. THE TRUTH IS THAT FATHERS ARE COMPELLED TO GO TO COURT TO OBTAIN RESIDENCE OR CONTACT ORDERS, AND MANY FATHERS SETTLE FOR WHAT THEY CAN GET AFTER YEARS OF FAILED NEGOTIATIONS WITH ADVICE FROM THEIR LAWYERS THAT FAMILY COURT JUDGES WORSHIP AT THE ALTER OF THE STATUS QUO.

Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang


Canadian Judge Faces Scrutiny by Federal Judicial Council

BarristerIt’s been a busy few years for Canada’s Judicial Council, the body that reviews complaints against federally appointed judges in Canada.

While all eyes and ears were focused on the lengthy and salacious Justice Lori Douglas Inquiry, which finally ended with the announcement of her voluntary retirement in November 2014, and the welcomed termination of the “dog and pony show” that the Inquiry became, other members of the Judicial Council have been anything but idle.

In 2012 Quebec’s Chief Justice brought forward a complaint to the Judicial Council with respect to Superior Court Justice Michel Girouard, a 2010 appointment to the Quebec bench. A separate Inquiry of another Quebec judge was commenced in 2014.

With far less media scrutiny than Lori Douglas endured, the allegations against Justice Girouard centre on informants who say the judge was a regular customer of a certain drug dealer in Val d’Or while he was a lawyer.

More startling yet are the allegations that he had gangsters install a marijuana grow operation in his basement and offered legal advice in exchange for cocaine, even when he became a judge!

Wiretap evidence played at the Inquiry revealed conversations between the judge and his alleged drug dealer where the pair discussed when he could pick up certain “videos” and whether there were any good “videos” available that week. Inquiry counsel, Marie Cossette, argued that “videos” was subterfuge for “cocaine”.

Perhaps even more damning is the existence of a surveillance video of the learned jurist recorded two weeks before his appointment to the bench, where he is seen purchasing cocaine at the back of a local video store, from the same drug dealer heard in the wiretaps.

The video, which has not yet been viewed by the Inquiry panel, is said to show a transaction between the judge and Yvon Lamontagne, the store owner, who sold drugs at the back of his store and is said to be a major player in the drug scene in Northern Quebec. The wiretaps and video were collected during a successful drug sting called “Crayfish”.

Judge Girouard denied all the allegations, explaining that Mr. Lamontagne was a client to whom he was giving advice on a tax matter. He said he often visited clients’ businesses to conduct meetings.

The issue before the Inquiry panel last week was the admissibility into evidence of the video. Lawyers for Judge Girouard argued the publication of photos of their client with drug dealers or pedophiles in the course of his law practice would be damaging to his reputation and hurtful to his family. They also suggested the surveillance was unlawful and a violation of his fundamental rights.

Ms. Cossette responded saying that Judge Girouard should have no expectation of privacy when he conducts a meeting in a store with the office door open and a clerk and customers just a few steps away.

While Judge Girouard’s lawyers complained that Ms. Cossette was reaching far beyond her role as independent counsel, a strategy reminiscent of the perpetual criticism of independent counsel(s) in the Lori Douglas Inquiry, Chief Justice of Manitoba, Richard Chartier, who is chairing the Inquiry panel, confirmed his view that Ms. Cossette’s conduct was “very honourable”.

It remains to be seen whether Judge Girouard’s alleged conduct will be similarly ascribed.

Lawdiva aka Georgialee Lang

Judicial Shaming of Convicted Judge Nixed by Court of Appeal

GEO#1As Elton John wrote: “Sorry seems to be the hardest word”, an adage that is certainly true for convicted Pennsylvania Supreme Court Justice Joan Orie Melvin, who was ordered to deliver a written apology to every judge in the State as part of her sentence for using state facilities and staff to run her judicial election campaign. The problem Ms. Melvin had with the order was that she was to write the apology on a photograph of herself in bracelets, also known as handcuffs.

Former Judge Orie Melvin and her two sisters were upwardly mobile stars in the Republican political firmament in Pennsylvania. Joan was initially appointed to the bench and thereafter ran several successful re-election campaigns. Joan’s sister Janine Orie worked with her, and sister Jane Orie was a Republican Senator for the State of Pennsylvania.

Unfortunately, both sisters were also charged and convicted of improper use of state services, facilities, and staff to advance Jane’s Senate campaign. Janine was also convicted in respect of Joan’s judicial campaign, while Jane was charged but acquitted.

It wasn’t bad enough that Judge Orie Melvin lost her judicial position and her pension, but she was also ordered to serve three-years of house arrest with electronic monitoring, followed by two-years probation and community service in a local soup kitchen three days a week, together with a substantial fine.

On appeal the requirement that the apology to her fellow judges be written on a photograph of her with handcuffs was eliminated, the court finding that its only purpose was to shame and humiliate her. Appeal Court Judge Christine Donohue wrote:

“The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues.”

However, the first batch of letters she sent to over 600 Pennsylvania judges were not good enough according to sentencing Judge Lester Nauhaus. Her first letters included the phrase “As a matter of law I am guilty of these offences”. Judge Nauhaus was not impressed with her lack of humility and ordered a rewrite which he said he would vet before the letters were delivered. He also criticized Ms. Orie Melvin’s lawyer, Patrick Casey, for the feeble apology.

On her second attempt she wrote:

“As a former member of the Pennsylvania Judiciary, I realize that my conduct has impacted the public’s perception toward the judiciary and the difficulty it has imposed upon the discharge of your responsibilities as a judge…I accept responsibility for the crimes for which I have been convicted. I regret any harm my conduct has caused you.”

How sad that three accomplished women in the same family lacked the integrity to conduct themselves in accordance with the privilege of the offices they held.

Lawdiva aka Georgialee Lang

The Curse of the In-Person Litigant

GEO_edited-1I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

Judge’s Child Support Ruling Goes Viral

_DSC4179 - Version 2Life isn’t always fair, but Carnell Alexander expected that a judge in Michigan would right the wrong. As he described it:

“How can you start a case with a lie? The mom lied. The process server lied. Now I have to pay for it.”

In 1987 a young woman gave birth to a child. In order to get welfare funds from the government she was obliged to fill out a form indicating who the father of her child was. She named Carnell Alexander as her child’s father.

She then filed a court action alleging he was the father and sought child support.

A process server was hired to personally deliver the court documents to him, as was required by law.

A court hearing took place but Carnell Alexander wasn’t there. He was in jail serving time for a juvenile offence.

Later in the early 90’s Carnell was checked in a routine traffic stop and advised there was a warrant for his arrest. The police officer told him he was a “deadbeat dad”.

You can imagine his surprise…he had never received notice of the paternity hearing as he was behind bars at the time, and he swore he had no children.

He began searching for the woman who had named him as father so he could prove he was not, through DNA testing, but his efforts failed until 2013 when a paternity test was administered.

With his grade 8 education and no assets or income, he could not afford a lawyer, but each occasion he went to court he repeated the refrain that he was not the child’s father.

But the government wanted him to pay arrears of child support of $30,000, so he showed up in court on his own expecting that justice would prevail. Boy, was he wrong!

Judge Kathleen McCarthy said she was “outraged that Mr. Alexander for two and a half decades failed to take this matter seriously.”

She said that Mr. Alexander should have filed documents protesting paternity years ago and because he did not, he must pay the support.

Yes, even though he had no notice, was not the father, and the child’s biological father was in his life, he must pay.

Feeling helpless, Mr. Alexander went to Michigan radio station WXYZ who broadcast his story.

And yes, Judge McCarthy was outraged about that too saying:

“I am outraged at the media for the willful misrepresentations of the facts of this case. Casting this court in a negative light.”

Due to the media exposure Carnell Alexander now has a pro bono lawyer, Cherika Harris, who has vowed to continue the fight for him.

As for Judge McCarthy, it is not the radio station that has cast a negative light on her court. She did that all on her own.

Lawdiva aka Georgialee Lang