Ralph Waldo Emerson: When you strike at a king you must kill him.

“In a bombshell diversion from his contempt-of-court proceedings, Maricopa County Sheriff Joe Arpaio testified under oath Thursday that his attorneys had hired a private agent to investigate the wife of the federal judge who ruled that the Sheriff’s Office had engaged in racial profiling.”  Megan Cassidy, Arapio: PI Hired to investigate judge’s wife, The Republic | azcentral.com (April 24, 2015) from How Appealing (April 24, 2015). Sheriff Joe shot at the judge and appears to have missed.

Although somewhat different, this reminds me of the “nuke” dump case where I awarded around $151 million to low level nuclear waste generators against Nebraska because Nebraska had grievously breached the duty of “good faith” under an agreement between states created under the Compact Clause of the Constitution. Entergy Arkansas Nebraska v. Nebraska, 226 F.Supp.2d 1047 (D. Neb. 2002), aff’d 358 F.3d 528 (2004). The decision was wildly unpopular in Nebraska.

During the course of the trial, and pursuant to standard practice, I was informed by the Administrative Office of the United States Courts that a reporter from the Nebraska Public Television and Radio system had requested, and was supplied with copies, of my financial disclosure reports that must be filed annually. Since NETV&Radio is an organ of state government, and the State of Nebraska was a defendant, I immediately advised counsel that a representative of Nebraska (or some one closely related to Nebraska) was investigating my financial disclosure reports and that I was aware of such activity. I received no response from the litigants, and the trial proceeded apace.

Since my financial disclosure reports indicate that I have never owned stocks or bonds in any corporations (I was probably the “poorest” judge nominated by Bush 41 and that situation has not changed much), the reporter evidently found nothing of interest. Ironically, the reporter could have gotten my disclosure reports from our Clerk of Court and would I not have been the wiser as I deposit a copy of that report with Clerk and I have instructed her to make copies available to anyone without notice to me.*

Federal judges know that from time to time litigants investigate their backgrounds to find embarrassing information about the judge. It comes with the territory. My only advice about doing so is captured in the title to this post, particularly if you have any reason to think your investigation will become public. Otherwise, you risk the appearance of being both slimy and ham–handed. Not unlike Sheriff Joe.

RGK

*For my most recent financial disclosure report, click here. It is a quick read.

PS. By the way, I love Nebraska Educational TV.  It is my main source of TV viewing, and each year Joan and I contribute a little money to it. That said, and despite rumors to the contrary, we do not watch the Lawrence Welk show when ETV rebroadcasts it.

9 responses

  1. Judge:
    Financial disclosure for certain public officials (I am obligated to file my own annual financial disclosure forms next month) was never intended to be a weapon by which litigants seek unfair advantage in front of a tribunal. That they would do so is proof that a sickening “win at all costs” attitude that has permeated the legal profession such that even federal judges are not immune. God help us all…
    Robert

  2. If federal judges actually applied the “administer[ed] justice without respect to persons, [did] equal right to the poor and to the rich, and … faithfully and impartially discharge[d]” their duties on a consistent basis like they swore out oaths to do, it wouldn’t be necessary. But as retired Judge Gertner admitted here, she was trained to “get rid of” certain cases. Our judiciary has lost the presumption that it is honest because it has squandered it.

    Ask yourself this: If Joe Nacchio had known then what we know now about his judge, do you honestly think he would have been convicted? Not a chance. The government almost certainly knew, but Nacchio’s attorneys didn’t. And who knows what happens behind closed doors….

    For every Porteous or Nottingham who got caught, there are probably fifty judges out there who haven’t. Porteous had “repeatedly committed perjury by signing false financial disclosure forms under oath,” but Clarence Thomas did the same thing, and he is still on the bench. Explain that one to me.

    If you’re up against the DoJ, you need to do whatever it takes, because most of their attorneys would sell their mother for a win. Just how it is. Investigating a judge’s background is neither untoward nor even a luxury. It is a necessity for those who can afford it. This doesn’t tarnish Arpaio in the slightest.

    Chief Justice Marshall said that “I have always thought from my earliest youth until now, that the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary.” We are in dire need of sackcloth and ashes.

  3. Judge —

    No need to disclaim watching Mr. Welk. My 20-year-old son watches every week (thereby dropping the average age of LW’s viewers to 108).

    David

  4. There’s a quote that I think captures Dime Bag Joe quite well:

    “Though she did not understand, she was shrewd in her way — the shrewdness that the peasant acquires as a kind of instinct of self-preservation in the world where he has to grape his way like a beetle, with every leg lifted against him, perpetually rolling upward his bail of clay through the mire as best he can.”

  5. Problem is Sheriff Joe (and a lot of his supporters) think that Sheriff Joe is the king and that it is the federal judges (and others) who are trying to hold him to the rule of law who need to learn Emerson’s lesson.

  6. Judge,
    So, what odds would you lay on (a) how the inevitable motion to recuse will turn out, and (b) whether the word ‘chutzpah’ will appear in the order?

  7. Reblogged this on Trial by Media and commented:
    I came to read this blog today via an unrelated topic, but am glad you are taking an interest in the antics of Sheriff Joe Arpaio.

    My interest is in judicial corruption, wrongful convictions (especially in Arizona,Texas and Florida) and the spectacular inability of the appellate system of the United States to correct them in a timely way.

    I hope to call by again soon.

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