Racist Federal Judge Gets Down In The Political Mud

March 1, 2012

Federal Judge Richard Cebull should resign — immediately.

Although this post deals with politics, it is not a political statement; it is a statement on how our current brand of mean-spirited destructive politics has integrated every segment of society, including the federal judiciary. It is also about the phrase “independence of the judiciary” and why that concept is a two way street: The legislative and executive branches of government should not apply undue pressure on the judiciary so as to impair its independence; however, the judiciary also must maintain its independence by refraining from the kind of political mud-slinging which others practice.

An Associated Press news story:
HELENA, Mont. (AP) Montana’s chief federal judge said Wednesday that he forwarded an email that contained a joke involving bestiality and President Barack Obama’s mother, but he did so because he dislikes the president and not because he’s racist.
Judge Richard Cebull, of Billings, forwarded the email from his chambers to six other people on Feb. 20, The Great Falls Tribune reported.
Cebull told the newspaper that his brother sent him the email, which he forwarded to six “old buddies” and acquaintances. He prefaced the email with the message: “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.”

Further details: [Politico] “The email, first obtained by the Great Falls Tribune, was forwarded by Chief U.S. District Judge Richard Cebull last week from his court email account to seven recipients — including his own personal email address — under the subject line, “A MOM’S MEMORY.”

I will not post the text of the joke, although I am tempted to do so because it is vile and racist in the extreme. If you really want to read it, I’m sure you can find it online as easily as I did.

It is unbelievably despicable that a federal judge would engage in this type of conduct. Although he suggests he is not racist, but instead merely anti-Obama, one could not possibly enjoy this “joke” unless that person is accepting of racist attitudes. A non-racist reads that “joke” and thinks, “Uggh, another idiotic racist statement” and then hits the DELETE button. A person who is either racist or completely accepting of racism thinks “Ha, that’s funny; I’m going to send that on to my friends and family.”

We know which route Chief Judge Richard Cebull took. He sent it on to others to “enjoy,” and all because (as he says) he doesn’t like our President.

Judge Cebull should resign. In my opinion, his conduct is a violation of four of the five canons of conduct applicable to federal judges.

Judicial Code of Conduct for United States Judges:

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY
A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY
[Judge Cebull did not technically violate this Canon only because we do not know that he allowed these racist views to actually affect litigation pending before him.]

CANON 4: A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE
A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY
(A) General Prohibitions. A judge should not: … (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office;

We’ve known for a while that public trust in government has gone down. I haven’t done detailed up to the minute research on the polling results but the most recent Gallup poll I reviewed (from September 2010) shows public trust in the legislative branch at 36% and in the executive branch at 49%. The judiciary, however, was at a relatively good 66%.

I suggest these polling results for the judiciary are the result of a view that federal judges try to stay above the fray.

Judge Richard Cebull’s email, which is both racist and maliciously political, will go a long way to destroy the public’s trustful perception of the federal judiciary. If he were a person of honor, he would immediately resign.

I suppose, however, we already know he is not a person of honor based on his actions, so I won’t hold my breath waiting for him to do the right thing.

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Racist Federal Judge Gets Down In The Political Mud

March 1, 2012

Federal Judge Richard Cebull should resign — immediately.

Although this post deals with politics, it is not a political statement; it is a statement on how our current brand of mean-spirited destructive politics has integrated every segment of society, including the federal judiciary. It is also about the phrase “independence of the judiciary” and why that concept is a two way street: The legislative and executive branches of government should not apply undue pressure on the judiciary so as to impair its independence; however, the judiciary also must maintain its independence by refraining from the kind of political mud-slinging which others practice.

An Associated Press news story:

HELENA, Mont. (AP)  Montana’s chief federal judge said Wednesday that he forwarded an email that contained a joke involving bestiality and President Barack Obama’s mother, but he did so because he dislikes the president and not because he’s racist.

Judge Richard Cebull, of Billings, forwarded the email from his chambers to six other people on Feb. 20, The Great Falls Tribune reported.

Cebull told the newspaper that his brother sent him the email, which he forwarded to six “old buddies” and acquaintances. He prefaced the email with the message: “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.”

Further details: [Politico] “The email, first obtained by the Great Falls Tribune, was forwarded by Chief U.S. District Judge Richard Cebull last week from his court email account to seven recipients — including his own personal email address — under the subject line, “A MOM’S MEMORY.”

I will not post the text of the joke, although I am tempted to do so because it is vile and racist in the extreme. If you really want to read it, I’m sure you can find it online as easily as I did.

 

It is unbelievably despicable that a federal judge would engage in this type of conduct. Although he suggests he is not racist, but instead merely anti-Obama, one could not possibly enjoy this “joke” unless that person is accepting of racist attitudes. A non-racist reads that “joke” and thinks, “Uggh, another idiotic racist statement” and then hits the DELETE button. A person who is either racist or completely accepting of racism thinks “Ha, that’s funny; I’m going to send that on to my friends and family.”

We know which route CHIEF Judge Richard Cebull took. He sent it on to others to “enjoy,” and all because (as he says) he doesn’t like our President.

Judge Cebull should resign. In my opinion, his conduct is a violation of four of the five canons of conduct applicable to federal judges.

Judicial Code of Conduct for United States Judges:

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY

[Judge Cebull did not technically violate this Canon only because we do not know that he allowed these racist views to actually affect litigation pending before him.]

CANON 4: A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY

(A) General Prohibitions. A judge should not: … (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office;

We’ve known for a while that public trust in government has gone down. I haven’t done detailed up to the minute research on the polling results but the most recent Gallup poll I reviewed (from September 2010) shows public trust in the legislative branch at 36% and in the executive branch at 49%. The judiciary, however, was at a relatively good 66%.

I suggest these polling results for the judiciary are the result of a view that federal judges try to stay above the fray.

Judge Richard Cebull’s email, which is both racist and maliciously political, will go a long way to destroy the public’s trustful perception of the federal judiciary. If he were a person of honor, he would immediately resign.

I suppose, however, we already know he is not a person of honor based on his actions, so I won’t hold my breath waiting for him to do the right thing.


Racist Federal Judge Gets Down In The Political Mud

March 1, 2012

Illinois Supreme Court Allows Free Public Access to Jury Instructions

December 8, 2011

Today, the Illinois Supreme Court announced that Illinois Pattern Jury Instructions will be freely accessible at the Court’s website. Until now, lawyers had to pay a hefty fee to private companies to be able to obtain that access, even though the jury instructions were drafted by lawyers who received no pay for their services but were appointed by the Illinois Supreme Court.

This is another huge step on the path which Illinois is taking to promote public digital access to the judicial system. Here is the link to the civil jury instructions:

http://www.state.il.us/court/CircuitCourt/CivilJuryInstructions/default.asp


Unnecessary Changes to Illinois Civil Jury Instructions

June 18, 2011

 

In the last ten years, we have witnessed an unprecedented number of changes to the Illinois Pattern Jury Instructions (Civil), including changes to longstanding and well established instructions. One of these changes was the 2006 revision to instruction 105.01 which sets forth the standards to be applied in professional negligence cases. This week, the Illinois Supreme Court indicated that the 2006 revision is an incorrect statement of the law. Studt v. Sherman Health Systems, ___ Ill. 2d ___ (No. 108182 June 16, 2011). A pdf copy of the Court’s recent decision may be found at the official Illinois courts website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/June/108182.pdf

Without going into great detail on the reasons for the 2006 revision to instruction number 105.01, it should be sufficient to say that the prior version indicated that the professional “must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified [professional].” The revised 2006 version states that professional negligence “is the failure to do something that a reasonably careful [professional] would do, or the doing of something that a reasonably careful [professional] would not do, under circumstances similar to those shown by the evidence.” The change was said to have a subtle but pronounced effect on the way in which jurors could apply evidence of professional misconduct of individual professionals (as opposed to institutional defendants such as hospitals).

 

When the 2006 revision was implemented, many of us did not understand why the change was made. After all, the prior version had not been the subject of any great controversy and it had been used for a very long time without apparent concern. Moreover, there had not been a notable change in case law on the standards to be applied to doctors and other professionals in malpractice cases.

 

Since the revision was put in place five years ago, many professional malpractice trials have proceeded in which the trial judges have had to struggle with the question of whether to instruct the jury using the revised pattern jury instruction or to use the prior (or some other) version of instruction 105.01. It appeared to many judges that the new instruction was an incorrect statement of the law. Many Cook County judges created their own jury instruction on the issue in recognition of the problem created by the 2006 revision. A few appellate court cases have pivoted on the issue as well, causing unnecessary delay in the final disposition of these matters. See, e.g., Lasalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill. App. 3d 806 (1st Dist. 2008) and Matarese v. Buka, 386 Ill. App. 3d 176 (1st Dist. 2008).

 

I hope that this week’s decision by the Supreme Court in Studt will cause the Supreme Court’s Committee on Jury Instructions to take pause before they begin “fiddling” with established jury instructions. Perhaps the Supreme Court even needs to intervene to require closer scrutiny of changes recommended by the Committee because one of the most important elements of the justice system is a clear and unequivocal statement of the law which will be consistently applied at trial. When pattern jury instructions are frequently changed, the predictably of the law which will be applied is diminished, which means confidence in the system is damaged. The next change by the Committee, however, should be to formally revoke the 2006 revision to 105.01 with an explanation of why it acted imprudently in making that earlier alteration.

 


Uh oh … Will Supreme Court Rule 213 Become Old Rule 220?

April 8, 2011

 

Illinois Supreme Court Rule 220 no longer exists. It was eliminated because it became watered down and unworkable. Rule 220 was intended to provide a responsible framework for the disclosure of expert witness opinions. Over time, the reviewing courts in Illinois created exception after exception to the rule. Eventually, everyone agreed the rule had become ineffectual.

Thus sprang forth Illinois Supreme Court Rule 213, implemented to replace Rule 220. With some adjustments here and there, Rule 213 has been reasonably effective in setting out a clear, understandable and workable outline for expert discovery. A key to its potency has been its mechanism to bar experts whose opinions had not been properly disclosed.

Under Rule 213(f)(1), a party’s disclosure of non-experts “must identify the subjects on which the witness will testify.” Under 213(f)(2) and (3), a party’s disclosure of experts (either retained or independent experts) “must identify the subjects on which the witness will testify and the opinions the party expects to elicit” from the witness. [Note: This is the language applicable to independent experts; the language applicable to retained experts is similar but even more specific and also requires the bases for the opinions be disclosed.]

Rule 213 appears to be very clear that a party must be specific in identifying expert opinions. Of course, case law has also established that an expert “may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 757 N.E.2d 533 (2001). Nevertheless, the opinion must be disclosed (along with the bases for the opinion).

Recently, in Timothy Whelan Law Associates, Ltd. v. Kruppe, ___ Ill. App. 3d ___ (2d Dist. No. 2_09_1234 March 31, 2011), the Second District Appellate Court issued a decision which opens a hole in Rule 213’s requirement that an expert’s opinions must be fully disclosed in advance of a trial. This was a lawsuit seeking collection of a lawyer’s unpaid fees. The plaintiff, an attorney, was identified in his Rule 213(f) disclosures as a witness who would testify

“regarding the existence of a contract between plaintiff and defendant, the nature of the services provided, and the damages it incurred as a result.”

At trial, the plaintiff/attorney was permitted to testify that the fees he charged to his client, the defendant, were reasonable. Clearly, the Rule 213(f) disclosure did not explicitly state he would so testify. The defendant objected to this trial testimony as not having been disclosed under Rule 213. The trial court overruled the objection, however, indicating the opinion was encompassed within the Rule 213 disclosure.

The appellate court sustained the trial court, finding that because the plaintiff had disclosed he would testify “regarding” his damages, that would reasonably include giving an opinion that his fees were reasonable.

I dissent.

There should be little doubt that the plaintiff’s Rule 213 disclosure was not sufficient to allow the opinion testimony permitted by the trial court. In fact, the plaintiff’s Rule 213 disclosure could only meet the requirement of Rule 213(f)(1), applicable to non-expert witnesses, that only the “subjects on which the witness will testify” be provided. Merely disclosing an expert will testify “regarding” an element of the cause of action does not indicate what that testimony will be or if it will be an expert opinion. If the disclosure made by plaintiff in the Whelan case had been for a non-expert witness, it would have been sufficient. The fact it was being offered as a disclosure of an expert witness opinion, however, requires more specificity and detail.

The modest disclosure that the plaintiff would testify “regarding” damages not only fails to identify the opinion regarding damages which was intended to be offered at trial, but it also fails to identify the bases for any such opinion (as required by Rule 213(f)(3)).

“The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Rule 213 requires full disclosure of experts’ opinions and the bases for those opinions, and any deviation from the rule should not be allowed, even if proffered “in the interests of justice.” Dept. of Transp. v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998).

Illinois appellate courts have previously dealt situations similar to the Whelan case and found very general, non-specific disclosures to not comply with Rule 213. In Kim v. Mercedes_Benz, 353 Ill.App.3d 444, 818 N.E.2d 713 (2004), the court held a plaintiff’s general disclosure that he would testify at trial “about the matters alleged in plaintiff’s complaint” is insufficient and does not give adequate notice to the defendant of the plaintiff’s intention to offer opinions regarding his damages. Additionally, in Lisowski v. MacNeal Memorial Hospital Assn., 381 Ill.App.3d 275, 885 N.E.2d 1120 (2008), the court ruled where the plaintiff’s Rule 213 disclosures only indicated the expert would testify to “all of the other problems” of the plaintiff, but the topics “depression” and “suicide” were never mentioned in the disclosures, the catchall phase “all of the other problems” was found to not be specific enough to meet the strict requirements of Rule 213, so the expert was properly barred from testifying that plaintiff became suicidal and depressed.

The Second District’s decision in Whelan backs off of Rule 213’s strict requirements of full and complete disclosure of expert opinions. Let’s hope the decision becomes an isolated, unaccepted part of Rule 213’s background. Otherwise, we should already start thinking about which rule is going to replace Rule 213 — just as Rule 213 replaced old Rule 220.


Riding Roughshod Over The Constitution

April 1, 2011

Shame on the House of Representatives for today passing H.R. 1255.

This is not a Republican vs. Democrat issue. This is an issue of respect for the U.S. Constitution and I am deeply disturbed at those congressional memebrs who voted in favor of H.R. 1255. The bill passed the House 221 to 202, mostly along party lines (15 brave Republicans voted against it along with all Democrats).

H.R. 1255 attempts to change the constitutional procedures for enacting a bill into law. The Constitution has served us well in this process for a very long time: One chamber of Congress passes a bill; the bill then goes to the next chamber where the bill is considered; the second chamber either passes it, rejects it or modifies it; if modified, then the two chambers try to reach a compromise and if they can’’t, the bill dies; once both chambers agree on a bill, it is sent to the President for his/her signature or veto; if the President signs it, the bill becomes law.

H.R. 1255 says that if the Senate does not consider by April 6th a particular bill (a budget bill) already passed by the House, then that bill will automatically become law —— forget about the manner in which the Constitution says a bill may become law. The statement of constitutional authority filed by the bill’’s sponsors indicates this provision is authorized by the “rulemaking” powers given to Congress. In other words, it is OK to change the way the Constitution tells us laws may be enacted if the Congress decides to change its own internal rules.

I do not care whether this was a bill from Republicans or Democrats. Any congressional representative who would vote for such a blatantly unconstitutional bill has no respect for the Constitution. Not one of those House members who voted in favor of H.R. 1255 any longer has the right to make public statements that he/she values the Constitution because this action today unequivocally demonstrates that if it is a question of complying with the Constitution or disregarding it in the face of politics, then that person is willing to throw away the Constitution.

I am a lawyer. In spite of the cynical opinions many people hold regarding lawyers, I (and many others like me) became an attorney because of a fundamental belief in the integrity, dignity and soundness of the United States Constitution. Many of us hold it in such high regard that when we see others attempt to toss the Constitution aside for mere politics, it is deeply offensive.

One need not be a lawyer, however, to be offended by the passage of H.R. 1255. Every citizen, regardless of political affiliation, should be distressed by it, and in my view let that feeling be known to those congressional members who voted in favor of the bill. In the event anyone would like to see the roll call of those who voted for and against it, this link can take one to the official website of the GOP of the House of Representatives:

http://www.gop.gov/votes/112/1/224