James M. Redwine

Law

Not Rocket Science

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The Rule of Law is not the stuff of artificial intelligence and differential equations. It is not about the James Webb telescope that may help disclose where and when we came from. It is not about a cure for COVID. No, the Rule of Law is far more complex, and perplexing, than any of those things. However, if properly applied, the Rule of Law can help us understand and deal with these challenges and others.

Law sounds simple. Treat others the way you wish to be treated. Respect the person and property of others. These principles are easy to say but thousands of years of human history prove they are extremely difficult to apply. Our Declaration of Independence sets out the basics of our legal system, “…[A]ll men are created equal,” and all men have the right to life, liberty and the pursuit of happiness. When Thomas Jefferson penned those simple ideals he owned slaves, and had children he did not acknowledge by at least one of those slaves. Also, women could not vote and the property rights of Native Americans were not even an afterthought. Were Jefferson and the rest of the 1776ers evil? No, they were human. We call these concepts ideals because the realities are nearly impossible to achieve. That is why we need the Rule of Law, to encourage us to try.

Our Constitution sets forth America’s aspiration to form a more perfect union. Surely none of our Founders was naïve enough to believe perfect self-government was achievable. That is not why goals are set. Just as it is the struggle of life that can separate us from all other animals and, perhaps from some humans, it is government’s role to help us strive for perfection. We have often fallen short and we always will. But just as we are fighting the war on COVID in fits and starts we can face our past failures in how we have behaved and strive to be better. There will never be a cure for our occasional imperfect collective missteps. That is why we need to acknowledge our past failures and seek to avoid future sins. We should do this together.

In her book, On the Courthouse Lawn, Sherrilyn Ifill points out the irony of many lynchings being carried out by large numbers of a community right at the seat of justice, the county courthouse. Also, our courthouses are often the site where the legal system has been used to deny human rights, such as through the separation of Native American families and establishment of some guardianships that led to murder.

Community recognition of these subversions of the Rule of Law is important. Monuments that show society admits its wrongs, even if long past, can help people heal and avoid new injustices.

Mr. Thomas, Meet Phil Redwine

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Philip W. Redwine

Dylan Thomas (1914-1953) was a Welsh poet who was imploring his dying father to fight against death. Dylan pleaded with his dad:

“Do not go gentle into that good night. Old age should burn and rave at close of day. Rage, rage against the dying of the light.”

The bravest fighter against Death I have ever known was my 79-year-old brother, Philip W. Redwine. Death was playing against Phil with a stacked deck but Phil kept drawing to inside straights for 34 years after Death thought it had dealt Phil a losing hand. The ultimate outcome was never in doubt but the timing sure was.

In 1987 Phil had a wife to help support and three young children to rear when, as country singer Tim McGraw sang:

“He was in his early forties (Phil was 44) with a lot of life before him when a moment came that stopped him on a dime.”

The oncologists at Fred Hutchinson Cancer Center in Seattle, Washington told Phil he could die within 4 months but certainly would not live beyond 2 more years. Phil and our sister, Jane Redwine Bartlett, had gone to Seattle so Phil could apply to be a part of an experimental treatment program as Phil’s physicians in Norman, Oklahoma where Phil practiced law told Phil he only had 6 months to live. The Fred Hutchinson medical team apologized to Phil when they told him the cut off age for the experimental treatment study was 40. As Jane reported to our oldest brother C. E. Redwine and his wife Shirley and me, Phil simply responded that the Fred Hutchinson team, “Was not talking to the Phil Redwine who was dying, but to the Phil Redwine who was living and they were going to want him as a model for their study.” He asked them for the treatment even if he was not included in the study. After an overnight meeting Fred Hutchinson agreed to let him try.

So, for 34 years Phil practiced law, supported his family and was deeply involved in giving of his very limited time and limitless talents to his community. He endured chemotherapy, radiation, kidney failure, heart disease and cancer induced diabetes as he gave love and free legal advice to countless family members and friends. Phil could have been the model for the author of the Book of Proverbs. Just a few of the truisms that Phil’s life exemplified are:

Proverbs 13:22            “A good man leaves an inheritance to his children’s children.”

Proverbs 19:11            “Good sense makes a man slow to anger, and it is his glory to overlook an offense.”

Phil would always listen respectfully to another’s point of view and would hear them out completely before agreeing or, gently, disagreeing.

Proverbs 18:2              “A fool takes no pleasure in understanding, but only in expressing his opinion.”

Proverbs 18:13            “If one gives answer before he hears, it is his folly and shame.”

Proverbs 18:15            “An intelligent mind acquires knowledge, and the ear of the wise seeks knowledge.”

When you sought advice from Phil you knew he would carefully consider everything that you said then he would respond wisely and never make you feel lesser. Perhaps his constant companion, Death At Any Moment, guided his thoughts and helped him see others as Ernie Pyle said about soldiers in World War II:

“When you’ve lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

And perhaps his own constant vulnerability filled him with a passion to champion those who could not champion themselves. Phil fought the good fight for good causes in and out of court and often at immense cost to himself. He will be greatly missed, but his legacy is long and strong. Well done, Brother, you are my hero.

This picture was taken immediately after Peg finished printing the “Gavel Gamut”. Do you think Phil read this article?

Tribal Court

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Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

2021 South Dakota Fall Judicial Conference

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For all the South Dakota Judges here are the 5 handouts and the Pre-Trial Order from Jim Redwine’s October 14, 2021 presentation:

MISSION STATEMENTS

The Mission of the Posey County, Indiana Circuit Court is to help create a community in which individuals, families, and entities are encouraged and facilitated to resolve legal problems among themselves and to provide a forum in which legal issues that are not privately disposed of are fairly and efficiently decided according to applicable law in an atmosphere of mutual respect and positive innovation.

The mission of the Posey County, Indiana Probation Department is to provide information ordered by the court and to accept juveniles and adults who are transferred to the Department and to supervise, record, and report their compliance with the terms of their probation in a manner which meets governing standards, protects the public, assists victims, and provides for the rehabilitation of offenders consistent with the effective application of Department resources.

PROCEDURE FOR DEVELOPING A MISSION STATEMENT

Of course, you will need to finalize any Mission Statement after you return to your Court next week and I suggest using the procedure set out below for that process. For now, at your tables, please prepare and discuss preliminary Mission Statements for your Court. Thank you.

  1. Start with a positive attitude and an open mind.
  2. Determine what entities you want input from such as your staff, other Court Offices such as the Clerk’s Office, the Police Agencies, the Bar and the Public through a volunteer committee perhaps or members of the media.
  3. Define your Court’s and your immediate, short-term and long-term goals.
  4. Set forth written, simple guidance for stakeholders to give input.
  5. Ask for written suggestions and then objectively consider them.
  6. Give yourself and those involved a time line.
  7. Draft preliminary Mission Statements and test them with your staff then the Bar.
  8. Do not hesitate to carefully consider suggestions.
  9. Make and publish your Court’s Mission Statement.

CASE ADMINISTRATION

Your only job is to resolve controversies brought to you.

Discuss ideas with your fellow judges as how to best help the Parties to resolve their own problems fairly and efficiently.

How can you and your Bar move the disposition of cases as close to their initiation as is reasonable and just?

Discuss, share and develop court orders and procedures that accomplish these goals.

SECURITY PLANS

Rural Courts:  “I know everybody, everybody knows me, no one would want to hurt me. “WRONG!” Also irresponsible.

Every Court should have a Security Plan based on its particular circumstances. Follow the A.C.T. procedure in developing a plan for your Court.

  1. Assess your surroundings
  2. Create a Security Plan
  3. Train Yourself and your staff in the plan
  4. Take input from your staff, the Bar and law enforcement.
  5. Form and regularly consult with a Security Committee composed of persons with stakes in the outcome of any security problems.

Every court case can result in problems. Fence line disputes, family matters, landlord/tenant, etc.

Today, at your table with your colleagues, create a preliminary assessment of your Court’s security situation.

Starting Monday, October 18, 2021 implement the A.C.T. approach in its entirety.

ETHICS

Discuss the videos as to what decisions and actions you would and should take on questions of Recusal and handling Contempt.

Keep the guidance of the South Dakota Judicial Qualifications Commission in mind:

“Four things belong to a judge: Hear courteously; Answer wisely; Consider soberly and Decide impartially.”

  1. Uphold the integrity and independence of the judiciary;
  2. Avoid impropriety and the appearance of impropriety in all activity;
  3. Perform the duties of judicial office impartially and diligently;
  4. Conduct your extra-judicial activities as to minimize the risk of conflict with judicial obligations; and
  5. Refrain from inappropriate political activity.
Pre-Trial Order

 

Do Not Cross the Potomac River

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At the Rubicon

In 49 BC the Senate in the Republic of Rome ordered Gaius Julius Caesar to not bring his army across the Rubicon River into the city of Rome. Caesar said, “Let the die be cast”; that is, I’ll take my chances. He did, Rome as a Republic collapsed into civil war and instead of a representative government the Roman people got a dictator. Five years later, on the Ides of March, Caesar was deposed by force.

The people who founded the United States of America came from a tradition of great fear of military power over civilians. In fact, in our Declaration of Independence one of the main complaints against King George III was that, “He has affected to render the military independent of and superior to the civil power.”

This great fear of military control over the civilian populace of America was guarded against in our Constitution. Article I, section 8 endows Congress with the power and authority to declare war, and to raise armies and militias to suppress insurrections. Article II, section 2 establishes that the democratically elected President shall be in control of the armed forces as the Commander-in-Chief.

In his exhaustive and exhausting treatise, The Framer’s Coup, The Making of the United States Constitution, Professor Michael J. Klarman points out the vital importance to our Founders that “[I]n all cases, the military should be under strict subordination to, and governed by, the civil power.” See p. 330.

We Americans profess pride in and support of our military as long as we are assured our military remembers its place. That system has worked pretty well and we are likely to maintain it in spite of political pressure being brought upon the generals to undermine their Commander-in-Chief. As I recall from my service days, I did not always recognize as wise what my military superiors thought was wisdom. Joseph Heller in his prescient novel, Catch-22, had a pretty firm grip on the banality of much of the military. On the hand, our politicians sometimes also fall a little short of a full deck. Still, at least we have the opportunity to have some say in who our civilian leaders will be and we can fire them.

Therefore, for me, I’ll chose to bob and weave with the occasional civilian loser versus a palace military coup. Back off oh ’ye purveyors of a Banana Republic. As Scarlett O’Hara said, “Tomorrow’s another day” and as Annie said, “Tomorrow is only a day away.” I can wait. Elections, yes, coups, no.

Another look at the Rubicon

The Cure for Black Robe Fever

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In response to both the states of Indiana and Oklahoma’s CLE requirements I am currently engaged in a forty-hour online Mediation course presented by the National Judicial College in Reno, Nevada. I may subject you, Gentle Reader, to the exciting content of this course before long. Hey, why should I have all the fun alone. But for this week I thought you might prefer another of those true courtroom dramas such as the one presented in last week’s column about my service as a prosecuting attorney that helped keep me from falling too deeply into the Black Robe Syndrome. The case that today’s column is about occurred about 25 years ago in front of me in the Posey County, Indiana Circuit Court. To my chagrin, I confess it is all too true and was first confessed to by me in a Gavel Gamut article on August 07, 2006 and appears in the book Gavel Gamut Greetings from JPeg Ranch.

The whole embarrassing courtroom episode reminded me of Dorothy’s serendipitous traipse along the Yellow Brick Road in the land of Oz with the cowardly Lion, the Scarecrow and the Tin Man in search of a brain for the Scarecrow, courage for the Lion, a heart for the Tin Man and the Wizard of Oz for Dorothy. When the mighty Wizard of Oz is finally seen for what he really is by Dorothy his façade of omnipotence gets shattered.

It is probably a good thing that we sometimes have false images of our leaders.  I remember my feelings of dismay when I was told by one of my grade school teachers that the painting of George Washington that hung in our classroom and in which The Father of Our Country looked so stern and powerful portrayed General Washington with his lips tightly pursed because he had ill-fitting false teeth.

And I will not disclose at what advanced age I still clung to Santa Claus and the Easter Bunny.  I might have been slow to catch on but I was happier than my peers.

We may be wrong, but most humans believe in pomp and circumstance and the regalia of office.  Police officers have badges, soldiers have uniforms and presidents have Air Force One.  We do not need to know about what happens behind the scenes.

Then there are judges.  Judges have courthouses, high benches, gavels and those flowing black robes. Hey, it’s kind’a cool. And, of course, some judges have spouses who are not so easily impressed by all the accoutrements since they see their judges asleep on the couch in dingy tee shirts and torn Levi’s.

But what brings the old “feet of clay” sharply into focus are those unexpected events that occur in court where some citizen decides to act like this is a democracy and he or she is an American.

While there are many instances where I have been made to realize that the trappings were for the office and not for me personally, my wife Peg’s favorite story involved a case from about ten years ago where I was imparting great judicial wisdom and admonitions to a young woman who had been found guilty of stealing.

As I was regaling the full courtroom with the majesty of the law and how it fell so heavily on this poor young miscreant, all of a sudden the huge double doors in the back of the courtroom burst open and a large woman with her hair in curlers wearing a housecoat and bunny slippers charged up towards my bench. She was the young woman’s mother and she was not amused and certainly not impressed by my lecture to her daughter.

The lady stopped just behind the bar that separates the hoi polloi from those who are paid to serve them. She stood to her full height and said very loudly:

                     “If you weren’t wearing that long black dress, I’d come up there and slap your face!”

Then she turned and marched slowly and grandly out the back of the courtroom giving me what for the whole time.  The packed courtroom was split between amazement and amusement.

As for me, I knew how the old Wizard of Oz felt.