James M. Redwine

NJC

Judicial Isolation

by Leave a Comment

This week starts the seven-week online course for Special & Ethical Considerations for the Rural Court Judge sponsored by the National Judicial College (six weeks online meetings with one week break in the middle). As a member of the NJC faculty, I have helped teach this course for fifteen years. The other faculty members are judges from Nevada, Mississippi, Tennessee and California. The student judges preside in rural trial courts in several states. We meet via Zoom. Our first week’s session will concentrate on the topic of Judicial Isolation involving rural court judges. The lead faculty member is Judge Pat Lenzi from Nevada.

Judges who serve in smaller jurisdictions often find themselves with the warmth of law books as their main colleagues. Due to the ethical restrictions on judges to not discuss legal matters, judges who serve in sparse areas with few other judges often find themselves with no one to help them test many important decisions before peoples’ lives are dramatically affected.

As a judge for more than forty years in a rural court environment that had only two judges, I know the need for unbiased, informed, non-partisan input in many vital decisions. Of course, it is not just judges who can benefit from sage, well intentioned consultation. Many of the techniques for dealing with judicial isolation can be applied to help non-judges make better choices in life. As most couples come to realize, when their relationships hit rough spots, it is often because the parties do not make the effort to communicate; they isolate themselves and their partners. What often follows are misunderstandings that can lead to unintended bad consequences.

So the first suggestion to deal with isolation that may lead to bad decisions is for us to set aside our pride and reach out to others, especially to others who have our best interests at heart. With Rural Court Judges that might be a fellow rural court judge in our own or a nearby jurisdiction. With non-judges it might be a neighbor, a clergyman or work acquaintance.

Another help can be involvement in judicial associations or continuing judicial education meetings, for example, participation in NJC courses or civic clubs, such as Rotary, the Elks, BPW and numerous other service groups. Such work helps us break out of our isolation and, also, can do a lot of good for our local society without requiring the exchange of intimacy or the discomfort of too much closeness. We can set our own limits and honor those of others while forging lines of open communication when desired.

Society needs its Rural Court Judges to maintain independence so that a judge’s decisions are respected. It also needs judges who are integrated into their rural jurisdictions. This delicate balance may be difficult to achieve. But rural court judges do have practices and procedures they can implement and follow. The same is true for all non-judges.

We often fail to maintain that perfect balance between isolation and involvement. However, just as all other legal education, with study and practice, our Rural Court Judges will be able to have their decisions respected while they positively participate in their communities.

The American Mantra

by Leave a Comment

 

From “The Veranda” @ JPeg Osage Ranch. Photo by Peg Redwine

Peg and I got back to “The Osage”, Osage County, Oklahoma, USA on 26 February 2023 after a trip of two days from the one-time Soviet Union Republic of Georgia that is bordered by Russia and Turkey and lies directly across the Black Sea from Ukraine, that, also, was a former member of the Soviet Union. Georgia has a population of about four million, almost every one of whom we met yearned to come to the USA and every one of whom was insatiably curious about, “What makes America, America.” The Georgian judges we worked with from June 2022 to April 2023 unfailingly asked me “How do American judges do …?”

I was sent to Georgia by the United States Agency for International Development, the American Bar Association and the East-West Management Institute because I have been on the faculty of the National Judicial College (NJC) since 1995 teaching other judges from the United States and several foreign countries. I have designed and taught courses on judging to judges, lawyers and court administrators from Palestine (1996), in Ukraine (1999-2000), in Russia (2003) and in Georgia (2022-2023) as well as judges from other countries when they attend courses at the NJC.

My unsurprising conclusion from ten years of practicing law and forty-three years of judging is lawyers and judges and the citizens who must look to us for justice are pretty much the same everywhere. Most people are good most of the time, most people are bad some of the time and everyone everywhere wants to know why the USA is a beacon to the world. That is what I have been asked to report on during a series of debriefings concerning our mission to Georgia.

In other words, even we Americans spend a great deal of time cogitating on what makes American judges different from foreign judges. I have certainly invested a lot of years in this quest and today during a Zoom meeting with experts from Georgia and America I plan to offer my analysis. For such a complex and important subject my thoughts synthesize to a rather pedestrian mantra:

With all the judiciaries from other countries it has been my pleasure and privilege to know and work with, my perception is they believe that unless there is a specific, written law that authorizes them to take a particular action, even if they know it is the right and just thing to do, they cannot ethically and legally do so and, therefore, they refuse to act.

Whereas judges from the United States believe that unless there is a specific, written law that prohibits the judge from taking a bold, just and fair action in a case, the judge will take the action even if there is no law that specifically allows it.

This mantra is deep within America’s judicial psyche. Some, when they disagree with a judge’s imaginative decision, might criticize it as “judicial activism”. Of course, when they agree with the decision, they call it “wisdom”. But if one wants to define the bright-line difference in what other countries yearn for and what America’s judges are admired for it is just this, Judicial Independence!

This general philosophy falls within what that great American dreamer Robert Kennedy called his mantra:

“Some people see things as they are and ask, Why? I see things as they should be and ask, Why not?”

So, after 8 months of responding to my Georgian friends’ incessant curiosity of what makes America and its legal system the hope of many other countries, I point out it is not for nothing the most recognized symbol of America is The Statue of LIBERTY (that is, the freedom to do the right thing)!

President Wilson Was Right

by Leave a Comment

President Woodrow Wilson’s Fourteen Points set forth a vision of a WWI peace treaty based not on total victory for any one country but a permanent peace for all countries founded on generous terms of self-determination and economic recovery. Germany sued for peace thinking it would be treated fairly, but mainly France and Great Britain joined by several other countries demanded Draconian subjugation of Germany including ruinous reparations. The Treaty of Versailles in 1919 was a testament to vengeance, not peace. It also led directly to WWII.

If there is no war like a civil war for hatred and carnage, there is no dispute like a conflict between neighbors for animosity. Ukraine and Russia have had a common but transitioning border for many years. Millions of people in both countries can speak both Ukrainian and Russian. The two cultures are deeply intertwined even though there have been several border conflicts between the countries. Much as next door neighbors may fall out over property line disagreements countries with a common border may fall victim to the old axiom, “Good fences make good neighbors.” In like manner, when there is a breach in the “fence”, repairing good relations may require a generosity of spirit on both sides and perhaps on the part of third parties seeking to become involved.

My good friend, Judge D. Neil Harris of Mississippi, serves on the faculty of the National Judicial College. He teaches other judges about courthouse security. Judge Harris has found that the type of court cases that are most likely to result in outbreaks of courtroom violence are property line disputes. He advises judges to be particularly alert when disputes between neighbors must be resolved in court. There is something visceral about such personal matters that makes forgiveness more difficult. As the world found to its chagrin after Versailles and WWI, even when wise people know that “Blessed are the peacemakers”, stiff necks are often the approach when neighbors must negotiate.

Ukrainian President Volodymyr Zelensky says he has been negotiating with Russian President Vladimir Putin for two years and is eager to negotiate a cessation of the current hostilities if Putin agrees. The rest of the world should allow Ukraine and Russia autonomy for their efforts to achieve a permanent peace. Such countries as the United States, Poland, China or Belarus may confuse their own agendas with those of Ukraine and Russia and, just as at Versailles in 1919, peace may be only temporary when the neighbors make up under false pretenses or when pressured to do so by outside forces. Perhaps the rest of the world should bite its collective tongues as Ukraine and Russia, hopefully, apply Wilson’s Fourteen Point type wisdom that was so tragically ignored at the catastrophic ending of WWI.

Why A Blindfolded Justice?

by Leave a Comment

You may know that for about twenty years I have been serving on the faculty of the National Judicial College where judges teach other judges to be judges. The NJC has a fairly high-tech approach due to needing to reach judges from all across America and in many foreign countries. About six years ago the College asked me and five other faculty judges to conduct a seven-week Internet class. Each faculty member is assigned areas of concentration. Mine are Court and Case Management and Judicial Ethics. If you have followed Gavel Gamut recently you may recall the other faculty and I just completed this year’s course.

Now, this week you and I could address the vicissitudes of Hoosier football or the most salacious sexual harassment scandal. Perhaps we could delve into the mysteries of competing religious philosophies or even this week’s almost certain to occur mass shooting. But I know my audience, small though it may be, and I am confident you would prefer to reflect upon the issues I hammered into the student judges via the Internet. Let’s get right to it.

May we start with the simple question, “Why do we even have Courts?” This topic might feel a little broad and somewhat amorphous. So, why don’t we narrow our focus and discuss just one court, say the Posey Circuit Court; What is its purpose?

Posey County government has numerous elements but each part can be reasonably placed in three general categories: (1) Executive, such as the Board of County Commissioners, (2) Legislative, the County Council; and (3) the Judiciary, which consists of two courts, Superior and Circuit.

The Commissioners are hired by Posey County voters to plan and execute short, medium and long-term functions, such as roads, jails and courthouses. The County Council is charged with managing the funding of all county services. I do not mean to ignore the important duties of such officers as the Prosecuting Attorney, the Sheriff, the County Clerk, the Treasurer, Assessor, Auditor and many other public servants. However we are painting with a very broad brush here; general, three-branch democracy is our subject.

Officials who engage in executive or legislative functions are not only allowed to, they are encouraged to advocate for certain policies and positions. Should Posey County have zoning and, if so, what kind? Can Posey County afford to hire more workers, and, if so, how much should they be paid? In county government there are thousands of important and often competing interests and interest groups to be advocated for and against. These are proper functions of those two branches of Posey County government. Therefore, it is altogether fitting that politics are involved. Policies are advanced and the voters decide whose policies they prefer, Democracy at work.

But, what happens when competing interests reach a conflict or an impasse? Where do citizens look to get a problem resolved? Where is there a fair arbiter? And, most importantly, where can citizens go with confidence the arbiter is not biased for or against either side? Of course, it is the Court, HOPEFULLY. However, if the Judge is perceived to be beholding to particular groups, a political party for example, people may fear any decisions the Judge makes is based less on fact than favor.

Perhaps next week you can be regaled with an even more in depth exposition of what I taught the judges about judges who may be perceived as partisan instead of blind to the identities and attachments of the people who have to appear in front of the Judge in Court.