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* Beware - The "Courts" Will Decide!

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    J.A.I.L. News Journal Los Angeles - November 27, 2000 ____________________________________________________ Listen to HotSeat4Judges daily on Internet Radio
    Message 1 of 1 , Nov 27, 2000

      J.A.I.L. News Journal
      Los Angeles - November 27, 2000
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      Below is the profound and provoking thoughts of one of our J.A.I.L. readers showing a talent I didn't know he possessed. While somewhat lengthily, it is greatly edifying for those who will take the time to read his well written thoughts.


      Beware - The "Courts" Will Decide!

      One friend of mine has commented on the election fiasco in Florida. It is his belief that the longer this travail continues more and more revelations about the corrupt legal system will be exposed. This is my attempt to help that process along.

      After stuffing my face with the Thanksgiving trimmings, preparations were made for a visual feast of the latest stuffing the ballot box episode in Florida: The Presidential Election. Amongst this viewing banquet was Larry King Live on CNN, which had as its guests major talk show hosts from across the country.

      One guest on the King Show, was a Raoul Felder, his pedigree being a talk show host and attorney. During one of the show segments, Mr. Felder, esq., commented on the recent Florida Supreme Court ruling.

      Before proceeding with Mr. Felder’s comments, a few remembrances about the Florida Supreme Court ruling are required. The opinion was forty-two pages in length. This Court issued an opinion within a thirty-hour window after oral arguments. The morning after the oral arguments, the Bush land shark team presented additional motions for the court to consider in their "deliberations." The Florida Supremes digested all the oral arguments, the briefs, the motions, within a twelve-hour period, then wrote a forty-two-page opinion and all seven justices came to an agreement on this writing in a very "brief" time period.

      On the day, which the court ruling was released, this writer was listening to that most infamous Republican shill Rush Limbaugh. During his program, Rush commented that he did not think there would be an opinion issued that day due to the fact that the Florida Court Justices were seen in the Tallahassee Capitol observing and participating in swearing-in ceremonies. According to Rush’s Reasoning, "there certainly was not enough time" for Judges to deliberate on the issues presented the day before, much less reading or writing legal opinions.

      One last item of background before returning to Mr. Felder’s commentary on the King Show. On the day before the oral arguments, a Supreme Court spokesman commented on a query by a reporter, which questioned how little time the judges would actually spend on the case, since the Thanksgiving holidays were upon them. The spokesman’s reply was quite revealing. He stated in so many words that there was no need to worry because each Supreme Court justice had enough staff to review all the motions presented and to help the Justices issue an opinion.

      Now let’s return to attorney and talk show host Raoul Felder’s comments on Larry King Live. Mr. Felder described the Florida Supreme Court opinion was a sham. There was no way the seven justices could read all the motions, consider the oral arguments and then write a forty-two page opinion in such short period of time and vote unanimously to agree to it. No dissenting opinions. No disagreements between the judges. Mr. Felder declared the only way this forty-two-page ruling could have been issued in such short time frame was that the judges had already made up their minds.

      However, was there another way this opinion could be issued so quickly?

      Let’s recall the answer the Supreme Court’s spokesman gave to that reporter’s question. The Supreme Court justices had plenty of help. From a publication issued in 1995 by the U.S. Department of Justice, Bureau of Justice Statistics entitled State Court Organization 1993¸ Table 22 tells us just exactly how much help the Florida Supreme Court justices had. (This writer found this publication at the University of Georgia Law Library). The chief justice had three (3) clerks. Each of the six associate justices had another two clerks per judge supplied to them. Id., page 187. One can presume that all these positions met the approval of the Florida general assembly during the budgetary deliberations. Now the Florida legislature is complaining about the Supreme Court ruling. What hypocrisy!

      So who or how was this forty-two-page opinion written and approved unanimously by the Florida Supreme Court in less than thirty hours? Were these old bags of wind and political hacks pulling an all nighter reviewing the mountainous volume of paper presented by all sides in order to provide us with a well reasoned opinion? Highly unlikely - unless these seven stiffs were injected with massive amounts of chemical stimulants.

      A publication entitled Chambers Handbook for Judges’ Law Clerks and Secretaries (hereinafter referred to as the "Chambers Handbook") published by the Federal Judicial Center (the folks who actually govern all the Courts) in 1994 provides some direction into the inner workings of the judges’ chambers. This book’s purpose is to operations manual for newly employed law clerks that serve within the various courts. Additionally this publication was to further "the Center’s statutory mission to develop and conduct education programs for judicial branch employees."

      In chapter 7 of the aforementioned publication titled "Legal Research and Writing" the following phrase is written, "No judge has time to review all of the authorities bearing on each legal principle at issue in a case. Legal research is, therefore, the most important task of any law clerk. While it is rare that a judge will ask a secretary to do legal research, a secretary may be asked to help with editing, citation checking, and preparing routine orders carrying out the judgment rendered in the judge’s opinion." Chambers Handbook, page 139. Based on an Illinois case, which was used to back up the Florida Supremes’ reasoning vis a vis the chads and which has caused so much consternation; it looks like no one, including secretaries, checked citations. Instead someone tried to make this Illinois citation fit the events at hand.

      Atlanta’s most well-known talk show host, Neal Boortz (a former lawyer) commenting on the Florida Supreme Court ruling, declared in so many words that the Florida Supreme Court took a tortuous legal course to arrive at the reasoning that was issued in its ruling. It also ignored precedent that was set in another Florida case, Nelson v. Robinson, 301 So. 2d 508, Fla. Ct. App. 2d Dist. 1974. "This is a case involving a confusing ballot where some candidates claimed that it was difficult for the voters to find their names and cast a proper vote for them. In this case the appeals court actually ruled that the voter has a responsibility to go into that voting booth, pay attention, follow the instructions, find their candidate on the ballot, and cast their vote properly. Imagine that … a court saying that people need to conduct themselves responsibly. Here’s a portion of the ruling from that case:

      "… if a candidate appears on the ballot in such a position that he can be found by the voters upon a reasonable study of the ballot, then such voters have been afforded a full, free and open opportunity to make their choice for or against that particular candidate; and the candidate himself has no constitutional right to a particular spot on the ballot which might make the voters’ choice easier. His constitutional rights in the matter end when his name is placed on the ballot. Thereafter, the right is in the voters to have a fair and reasonable opportunity to find it; and as to this, it has been observed that the constitution intended that a voter search for the name of the candidate of his choice … without regard to others on the ballot. Furthermore, it assumes his ability to read and his intelligence to indicate his choice with the degree of care commensurate with the solemnity of the occasion." From Nealz Nuze, November 22, 2000, http://www. boortz.com/nov22.htm (quoting Nelson v. Robinson, supra).

      "A well-crafted judicial decision can be made only in the context of precedent; the law clerk’s role is to make sure the judge has the materials with which to understand the jurisprudence related to the case." Chambers’ Handbook, p. 139. Apparently this admonition to law clerks was ignored as well, hence the use of an Illinois case, concerning chads, which turns out to have had faulty legal reasoning. The law clerks at the Florida Supreme Court had better write the way the judges wanted or else their jobs and their careers might be in jeopardy. "Each judge has a different writing style. Some prefer simple declarative sentence and use plain language. Others employ simile to make a point. Whatever the judge’s personal style, most judges prefer that their law clerks try to write in the manner that the judge has adopted. The judge issues opinions year after year; continuity in style is desirable. Read several of the judge’s prior opinions to become familiar with his or her style." Chambers’ Handbook, p. 146. These law clerks are employed at the judge’s pleasure. Table 21, Method of Selection, State Court Organization 1993, page 183.

      Another little tidbit, there are no standards to be met when a law clerk is employed by the Florida Supreme Court. Ibid. In other words these folks can be dumb as a stump and still make decisions that might lead to the selection of the next president of the United States. What we is a judicial decision that was based on an opinion written by law clerks who were hired with no standards, which allowed ballots to be counted with no standards. A muddled mess indeed.

      In conclusion, a brief quote sums up how government agencies at all levels, which includes the Florida Supreme Court, are running on autopilot. "Some judges do all of their own writing, while relying on their law clerks only to prepare internal research memoranda - others expect their law clerks to draft opinions and orders in final form, suitable for filing" supposedly with the judges’ approval. Chambers Handbook, p. 143. When legal decisions as important as this one are in the hands of twenty something law clerks, it is easy to see how this election has evolved into contorted confusion. All this opinion insured was an opportunity for more work for lawyers.

      And don’t think the lawyers for George Bush and Al Gore don’t know it.

      The real tragedy is the sort of nonsense that happened in the Florida Supreme Court goes on in every appellate level court in this country and most Americans don’t know it.

      Larry Bolin, FTG Publishing © 2000.

      It should be noted that an article was written in a dated Los Angeles Times after the same above fashion regarding the U.S. Supreme Court. Shocking was to find that most all decisions of the U.S. Supreme Court  are written by the average profile of a 24 year old male just out of law school who has never practiced law a single day in his life in any real court in the land. ("Real" as opposed to mock trials in law school.) Their decisions involve multi-million dollar issues, international affairs, and cases of last resort. They determine who gets heard and who gets ditched, the latter of which falls into the approximately 97% category.
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