BostonHerald.com

Ned Holstein is correct. The judge should recuse herself (although this is usually not the case where cases “go public”. Here is why:

1. Trial court judges often run courts by fiat. Attorneys are barred from criticizing each other or the court, by rules of court. Judges feel that litigants are also somehow bound by this (in my opinion illegal) rule of the trade. For example, what would happen if teachers could not criticize each other, or anyone else in the teaching profession, without losing their teaching license?

2. A judge is a visible public servant. At law, judges may be criticized in public, just like any other elected or appointed high-level official. Judges often pretend this is not the case.

3. To enforce judicial fiat, judges often take the position that when a party behaves in a manner that creates a negative attitude towards the litigant, it should not give the litigant excuse to “change judges”. If this were the rule, litigants would thwart due process be creating a merry go round of ongoing judicial change. This position of course avoids dealing with the nature of tne behavior of the litigant, which in this case is simple exercise of his right to free speech and to fairly criticize a system that is well-known to discriminate against men, and in particular, one judge who happens to be the judge in his case. Where a litigant is making credible claims of judicial misbehavior, the judge is immediately bound to responde, either by modifying behavior or self-recusal. This is exactly why freedom of the press works, and why the judge has no authority to assume a dictatorial role in the case.

4. Some judges take the position that free speech should be quashed if it releases the image or name of a child. This is a convenient co-option of parental authority. Children are often discussed in the press by parents with regard to many kinds of situations (such as problems at school), or in alleged domestic violence or abuse cases (which are often an illegitimate use of children as pawns as we saw in the PBS documentary “Breaking the Silence” — which act of public child abuse went unpunished). But criticism is also often legitimate, particularly when trial court abuses of the child’s right to have a father is involved. In either event, this is not an issue for the court — the freedom of the press includes the right to get it wrong and to be corrected by others in the public forum.

4. If a litigant is willing to risk the vagaries of the media and public scrutiny, to raise an issue about the courts system or any particular judge, the litigant has waived privacy and that of his or her child (which is a right of parenting), and the litigant also feels strongly that he/she has a strong case for criticizing either the system or judicial behavior. This is part and parcel of the first amendment, over which the trial court has no authority outside of the confines of the court room.

5. Any judge who is confident that their work is reasonable should be completely unafraid of public criticism. In fact, if a litigant without a reasonable issue wants to hang him/herself in public, the judge should be pleased to allow it. However, judges who are afraid of public criticism are to be immediately doubted — any hint of a cover-up suggests there is something to be covered up.

6. Recusal is not the same as requesting a change of judge. Recusal is required where a judge has a personal conflict or personal investment in a case, or where the personal relationship between the judge and any litigant or court official demonstrates the appearance of a conflict of interest. Note: it is the “appearance” of conflict of interest, not the subjective feelings of the judge one way or the other, what is the issue defining recusal. The fact that a book has been published by a litigant containing palpable claims of court misbehavior, there is a clear appearance of conflict of interest with regard to the judge. Where the judge has crossed the line requesting the litigant censor the publication, the conflict of interest is now real, not theoretical. In this case, the judge must recuse.

Ned Holstein is correct. The judge should recuse herself (although this is usually not the case where cases “go public”. Here is why:

1. Trial court judges often run courts by fiat. Attorneys are barred from criticizing each other or the court, by rules of court. Judges feel that litigants are also somehow bound by this (in my opinion illegal) rule of the trade. For example, what would happen if teachers could not criticize each other, or anyone else in the teaching profession, without losing their teaching license?

2. A judge is a visible public servant. At law, judges may be criticized in public, just like any other elected or appointed high-level official. Judges often pretend this is not the case.

3. To enforce judicial fiat, judges often take the position that when a party behaves in a manner that creates a negative attitude towards the litigant, it should not give the litigant excuse to “change judges”. If this were the rule, litigants would thwart due process be creating a merry go round of ongoing judicial change. This position of course avoids dealing with the nature of tne behavior of the litigant, which in this case is simple exercise of his right to free speech and to fairly criticize a system that is well-known to discriminate against men, and in particular, one judge who happens to be the judge in his case. Where a litigant is making credible claims of judicial misbehavior, the judge is immediately bound to responde, either by modifying behavior or self-recusal. This is exactly why freedom of the press works, and why the judge has no authority to assume a dictatorial role in the case.

4. Some judges take the position that free speech should be quashed if it releases the image or name of a child. This is a convenient co-option of parental authority. Children are often discussed in the press by parents with regard to many kinds of situations (such as problems at school), or in alleged domestic violence or abuse cases (which are often an illegitimate use of children as pawns as we saw in the PBS documentary “Breaking the Silence” — which act of public child abuse went unpunished). But criticism is also often legitimate, particularly when trial court abuses of the child’s right to have a father is involved. In either event, this is not an issue for the court — the freedom of the press includes the right to get it wrong and to be corrected by others in the public forum.

4. If a litigant is willing to risk the vagaries of the media and public scrutiny, to raise an issue about the courts system or any particular judge, the litigant has waived privacy and that of his or her child (which is a right of parenting), and the litigant also feels strongly that he/she has a strong case for criticizing either the system or judicial behavior. This is part and parcel of the first amendment, over which the trial court has no authority outside of the confines of the court room.

5. Any judge who is confident that their work is reasonable should be completely unafraid of public criticism. In fact, if a litigant without a reasonable issue wants to hang him/herself in public, the judge should be pleased to allow it. However, judges who are afraid of public criticism are to be immediately doubted — any hint of a cover-up suggests there is something to be covered up.

6. Recusal is not the same as requesting a change of judge. Recusal is required where a judge has a personal conflict or personal investment in a case, or where the personal relationship between the judge and any litigant or court official demonstrates the appearance of a conflict of interest. Note: it is the “appearance” of conflict of interest, not the subjective feelings of the judge one way or the other, what is the issue defining recusal. The fact that a book has been published by a litigant containing palpable claims of court misbehavior, there is a clear appearance of conflict of interest with regard to the judge. Where the judge has crossed the line requesting the litigant censor the publication, the conflict of interest is now real, not theoretical. In this case, the judge must recuse.

Addenda:

7. Some judges take the position that litigants speaking in public about a case is an attempt to try the case in public so as to sway the court, which compromises the independence of the court by subjecting it to public pressure. In situations where the criticism is directed specificially towards judicial or systemic behavior, the criticism is particualary valid. Courts are, by nature, independent bodies. Public criticism has no actual control over judicial behavior. Judges are free to ignore or consider what is said in public. To pretend that criticism of judicial behavior is an attempt to sway the court is an admission that the judge has behaved inappropriately, and now wishes to quash criticism that exposes the inappropriate behavior for which corrective action or recusal is now necessary.

8. The first amendment does not state that litigants must wait until the final decision in a court case, and suffer injustice thereto, and be left with no other course of action than appeal (which can easily be quashed by the trial court by omitting findings of fact and conclusions of law). The first amendment allows criticism of judges and the courts system any time, whether one is involved in litigation or not.

Addenda:

7. Some judges take the position that litigants speaking in public about a case is an attempt to try the case in public so as to sway the court, which compromises the independence of the court by subjecting it to public pressure. In situations where the criticism is directed specificially towards judicial or systemic behavior, the criticism is particualary valid. Courts are, by nature, independent bodies. Public criticism has no actual control over judicial behavior. Judges are free to ignore or consider what is said in public. To pretend that criticism of judicial behavior is an attempt to sway the court is an admission that the judge has behaved inappropriately, and now wishes to quash criticism that exposes the inappropriate behavior for which corrective action or recusal is now necessary.

8. The first amendment does not state that litigants must wait until the final decision in a court case, and suffer injustice thereto, and be left with no other course of action than appeal (which can easily be quashed by the trial court by omitting findings of fact and conclusions of law). The first amendment allows criticism of judges and the courts system any time, whether one is involved in litigation or not.