Cranky Judges

Judicial Civility Spelled “S.C.H.M.U.C.K.”

Of all the judicial opinions that have been reviewed at lawhaha.com, People v. Arno takes the cake for the most over-the-top, unjudicial attack on a  colleague in a written opinion. For that reason, it qualifies for the Strange Judicial Opinions Hall of Fame.

Arno was a Fourth Amendment obscenity case in which the Second District California Court of Appeals suppressed evidence obtained by the police from peering in the windows of defendant’s office suite with ten-power binoculars.

One judge—we’ll leave names out to protect all the guilty judges involved—filed a strong dissent. Actually, it was more than strong. It was strident and no doubt irritating to the judge’s colleagues on the appellate panel.

But the attack launched by the majority judges against their dissenting brethren in footnote 2 is almost breathtaking in its inappropriateness.  You don’t bother to read the whole footnote. Just read the first letters of the seven numbered sentences. As Country Joe McDonald shouted at Woodstock: “What’s that spell? What’s that spell?”

2. We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:

1. Some answer is required to the dissent’s charge.

2. Certainly we do not endorse “victimless crime.”

3. How that question is involved escapes us.

4. Moreover, the constitutional issue is significant.

5. Ultimately it must be addressed in light of precedent.

6. Certainly the course of precedent is clear.

7. Know that, our result is compelled.

How did the dissenter reply to this profane insult? Well, not surprisingly, with even more bizarre stridency. In his own footnote, he said:

I have heretofore eschewed responding to footnote 2 of the majority opinion in kind since it would be beneath the dignity of this office. Although I still will not respond in kind, … some comment is compelled.

 I decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2. I abhor the loss of public respect for the legal profession and the judiciary footnote 2 engendered by reason of [a L.A. Times story about the footnote]. …

I construe the [footnote reference] as a personal affront to every California citizen and their duly elected representatives … who have deemed it a wise public policy to enact our criminal obscenity laws …. It is no wonder that California had the odious distinction of being the porno capital of the world.

Come on, judges. Play nice or we’ll take your robes away.

— People v. Arno, 153 Cal. Rptr. 624, 628 n.2 (majority), 644 n.14 (dissent) (Cal. Ct. App. 1979).

“Could You Love Me a Little Less, Judge?” (Kent)

Another ad hominem-laced love letter to lawyers from former U.S. District Judge Samuel Kent, Galveston, TX. This one was a maritime personal injury case in which defense counsel moved for summary judgment on behalf of his client Phillips Petroleum.

Note that, in insulting the lawyers throughout, Judge Kent emphasized that the lawyers for both sides were “likeable” and that he had “affection” for them:

[Judge Kent begins the order by stating the case, then proceeds as follows.]

[T]he Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact—complete with hats, handshakes and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.

Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

[The court discusses summary judgment law, followed by several caustic remarks about the quality of defense counsel’s (representing Phillips) filings, including the statement that “[a] more bumbling approach is difficult to conceive.” Then the court tears into plaintiff’s counsel.]

Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. … Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit.

Plaintiff’s citation, however, points to a nonexistent Volume “1886” of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters … require the application of general maritime rather than state tort law … The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff’s counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). …

Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon—Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig. Now, alas, the Court must return to grownup land. [Court resolves issue on its own.] …

Take heed and be suitably awed, oh boys and girls—the Court was able to state the issue and its resolution in one paragraph … despite dozens of pages of gibberish from the parties to the contrary! …

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing … the Court believes it has satisfactorily resolved this matter. Defendant’s Motion for Summary Judgment is GRANTED …

— Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668, 670–72 (S.D. Tex. 2001). Thanks to Ira Rosenau.

More Judicial Distemper-ment (Kent)

Some believe the writings of impeached U.S. District Judge Samuel B. Kent, Southern District of Texas, are quite funny, but probably not many lawyers in Galveston were laughing after his June 2001 order on a motion to transfer for improper venue. Being Juge Kent, he couldn’t just deny the motion. He had to rip apart the lawyer who filed the motion:

[A]ny person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant’s Motion is patently insipid, ludicrous and utterly unequivocally without any merit whatsoever. Worse, it is just plain blatantly wrong in light of the unambiguous language of a decades old federal statute and veritable mountains of case law addressing venue propriety.

Sound bad? It gets worse. Judge Kent went on to state that “Defendant’s obnoxiously ancient, boilerplate, inane Motion is emphatically DENIED.”

For the coup de grace, Judge Kent ended by disqualifying the lawyer from further appearing in the case “for submitting this asinine tripe.”

— Labor Force, Inc. v. Jacintoport Corp., 144 F. Supp. 2d 740 (S.D. Tex. 2001) (opinion subsequently withdrawn from bound volume).

Only Judge Kent Could Insult Six Nations in One Paragraph (Kent)

Here’s another widely circulated sarcastic opinion from former U.S. District Judge Samuel Kent, Galveston, Texas. Say what you want about Kent, and there is plenty to say, he was a clever writer.  And who else could insult six entire nations in a single paragraph (the first one below)?

The governments of several foreign countries sued American tobacco companies for health care costs allegedly caused by the defendants’ product. Judge Kent, in his inimitable way, sua sponte transferred the case to the District of Columbia:

The governments of Guatemala, Panama, Nicaragua, Thailand, Venezuela, and Bolivia have filed suit in [several geographically diverse locales in the U.S.] Why none of these countries seems to have a court system their own governments have confidence in is a mystery to this Court. Moreover, given the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian … even on the Discovery Channel.

Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia! Still, the Court would be remiss in accepting an obligation for which it truly does not have the necessary resources …

[T]he capacity of this Court to address the complex and sophisticated issues of international law and foreign relations presented by this case is dwarfed by that of its esteemed colleagues in the District of Columbia who deftly address such awesome tasks as a matter of course. … Such a Bench, well-populated with genuinely renowned intellects, can certainly better bear and share the burden of multidistrict litigation than this single judge division, where the judge moves his lips when he reads ….

[I]t is the Court’s opinion that the District of Columbia, located in this Nation’s capital, is a much more logical venue for the parties and witnesses in this action because, among other things, Plaintiff has an embassy in Washington, D.C., and thus a physical presence and governmental representatives there, whereas there isn’t even a Bolivian restaurant anywhere near here! Although the jurisdiction of this Court boasts no similar foreign offices, a somewhat dated globe is within its possession.

While the Court does not therefrom profess to understand all of the political subtleties of the geographical transmogrifications ongoing in Eastern Europe, the Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the Court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain’t in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn’t located there either).

Furthermore, as this Judicial District bears no significant relationship to any of the matters at issue, and the judge of this Court simply loves cigars, the Plaintiff can be expected to suffer neither harm nor prejudice by a transfer to Washington, D.C., a Bench better able to rise to the smoky challenges presented by this case, despite the alleged and historic presence there of countless “smoke-filled” rooms.

— Republic of Bolivia v. Philip Morris Cos., 39 F. Supp. 2d 1008, 1009–10 (S.D. Tex. 1999). Thanks to Bob Van Voris.

Galveston Pride (Kent)

The notorious Judge Samuel Kent, former U.S. District Judge for the Southern District of Texas, made his first big spash on the Strange Judicial Opinions screen in a 1996 case called Smith v. Colonial Penn Ins. Co.

A defendant in a breach of contract case in Galveston apparently insulted Judge Kent’s hometown and Southern pride when it filed a motion to transfer venue in the case from Galveston to Houston based on forum non conveniens. Defendant’s motion said Galveston did not have a commercial airport into which defendant’s agents could fly. The nearest airport was Houston’s Hobby Airport, 40 miles away.

Judge Kent was somethingless than sympathetic to defendant’s plight. He sarcastically skewered the lawyers (some paragraph breaks inserted):

Defendant should be assured that it is not embarking on a three-week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed.

To assuage Defendant’s worries about the inconvenience of the drive, the Court notes that Houston’s Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

As to Defendant’s argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court’s kingdom for a commercial airport! [Fn]

[Fn.] Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.

The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

And that’s how Lawhaha.com first met Judge Kent.

— Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784–85 (S.D. Tex. 1996).