My Favorite Judge.

Whenever I am asked why I became an appellate judge, I answer, "It's all Charlie Moylan's fault!"

I first met Judge Charles E. Moylan, Jr. of the Maryland Court of Special Appeals in 1982 when I sat in one of the many audiences he addressed over the years and all over the country on the Fourth Amendment and a variety of other subjects. He has written several books on Fourth Amendment jurisprudence and is regarded as the guru of search and seizure issues.

A few years after our initial meeting, I too began to lecture around the country, mostly to prosecutor associations, on several CLE subjects and my path would often cross Judge Moylan's and somewhere along the way, we became friends. I used whatever influence I had to make sure he was invited annually to speak to my state's prosecutors and, I suspect due at least in part to his influence, I was often invited to speak to the Maryland prosecutors. Over the many years (and more than a few beers) that we have shared, I learned that we both had very similar backgrounds and my career path has been largely identical to his.

It was Charlie more than anyone who influenced me to aspire to the appellate bench. I recently contributed to a textbook on appellate advocacy and Charlie was kind enough to surface from retirement long enough to say some nice things about me in the book's Forward.

Judge Moylan has been a mentor and my model as an appellate judge - roles that I know he has played for others. He is an icon in the State of Maryland and I am not, and never will be, in his class but when I grow up, I want to be a judge just like Charlie Moylan.

During the 1980's and early 1990's, Judge Moylan's name was often mentioned for vacancies that occurred on the Fourth Circuit and even as a dark horse for the Supreme Court. Unfortunately, Charlie was that most unconfirmable species of potential federal judge or justice, a relatively conservative Democrat.

A bout with cancer a few years ago caused him to suspend his CLE lectures and in 2000, Maryland's mandatory retirement age forced him from active service on his court but fortunately for the sovereign State of Maryland and its citizens, it now appears that they still have enough sense to allow Charlie to sit by designation.

His latest opinions, to my knowledge the first he has written since beating cancer, have brought back all of these memories and as an aside, they show that he hasn't lost a step:

From State v. Brown, decided yesterday, on the issue of whether the length of a traffic stop was unreasonably long such as to amount to an unreasonable detention:

"In the time elapsed, the officer could have written the (traffic) warning in cuneiform...."

"The State, for the first time on appeal, has come forth with an alternate theory of Fourth Amendment justification. It is not necessarily to little, but it is too late...."

"Unfortunately for the State, there was neither a peep nor a glimmer of any independent Terry rationale advanced at the suppression hearing...."

And from Joseph v. Bozzuto Management Company, decided on March 15, 2007, we get this little gem:

"To the otherwise foreclosing effect of having proffered no evidence of actual or constructive knowledge of a hazardous condition in the stairwell, the appellant's only response is to resort to wishful thinking. He looks to Brooks v. Lewin Realty III, Inc. (citation omitted) as a deus ex machina descending on the courtroom just in the nick of time. He pins his hope upon an illusion."

Probably my favorite Moylan opinion is this masterpiece which begins as follows (the whole thing is worth the read):

"The play's the thing, Wherein I'll catch the conscience of the King"
... Hamlet
Act II, Scene ii

Taking that version of the facts most favorable to the
State, what unfolds is the melodrama of an estranged
wife, desperate to free herself from a marriage gone stale,
leaving a trail of false clues and staging her husband's
death so as to make it appear a random accident. As with
"The Murder of Gonzago" in Hamlet or "Pyramis and
Thisbe" in A Midsummer Night's Dream, there is within
this real-life drama a play within a play. In the real-life
drama, the husband was lured to the scene of his fatal
poisoning by the reconciliatory promise of a romantic St.
Valentine's weekend at the Harbourtowne Resort in St.
Michael's. A highlight of the getaway weekend was a
dinner-theater murder mystery which the dinner guests
were invited to solve. That play within a play was called
"The Bride Who Cried." Our real-life drama may well be
called "The Widow Who Lied."

"Sleeping within my orchard,
Upon my secure hour thy uncle stole,
And in the [***2] porches of my ears did pour
The leperous distilment"
... Hamlet
Act I, Scene v

Charlie is not large in stature but as you can see, he has a giant intellect and is a gifted writer.

Charlie, it's good to see you back in the saddle. Keep up the good work.

Would you mind repeating that?

They don't let us appellate judges out much and when you spend your days wading through briefs by the pallet load, some days you just can't resist inserting your tongue firmly in cheek.

Such seems to be the case in Jamison v. Ford Motor Company , an opinion written by Judge Ralph King Anderson of the South Carolina Court of Appeals.

Courtesy of William at the South Carolina Law Blog, here are some excerpts:

The cognoscenti of federal preemption jurisprudence bestow panoramic application so as to limit state common law tort actions. We decline to accept this broad-brush federal judicial barricade.
. . .

Importantly, scholars on basic conflict preemption principles inculcate in regard to the fundamental elixir of the rule when juxtaposing federal/state constitutional analysis. If a state statute, administrative rule, or common law cause of action conflicts with a federal statute, it is incontestable that the state law has no efficacy. It is pellucid that the Supremacy Clause does not bless unelected federal judges with carte blanche to utilize federal law as a conduit to impose their own views of tort law on the States. Assumptively, we recognize that common law tort actions are historically within the scope of the States’ police powers and are safe from preemption by a federal statute unless Congress reveals a clear and manifest purpose to preempt.

. . .

Finally, we place our imprimatur and approbation upon the arbitraments of the circuit court in regard to. . . .

Judge Anderson's multi-syllabic tour de force reminds me of the "Darwinian Theory of Legal Obfuscation" which states that the legal language most likely to survive is that which on its face is most ambiguous or difficult to understand (I think I will add that to the Random Quotes on this page).

Reading this was almost as much fun as writing it must have been. I won't say any more because every appellate judge has their own writing style and from my glass house vantage point, I am hardly one who should be throwing stones.

I'm no marketing genius but ...

... perhaps I just didn't notice that people are clamoring for:

Lederhosen with a built-in cell phone.. I can just see that Verizon guy standing in front of the Matterhorn saying, "Can you hear me know?"














Or, how about the "Gotta-Go Briefcase" for those executives who are really full of... well you get the idea.











Finally, how about this Japanese "rescue" robot which appears to basically be a pooper scooper for the dead or nearly dead.

Artificial Intelligence gets busted for practicing law without a license.

Who didn't see this one coming?

While artificial intelligence programs offering legal advice aren't exactly new, it looks like we've now seen the first case of one running into trouble with the law for doing so. The over-eager AI in question was offering its services to entrepreneur Henry Ihejirika, who put the program to use on two of his websites, offering bankruptcy assistance to clients without the hassle of a face-to-face meeting. Things were chugging along fine until a bankruptcy trustee noticed errors in some of the forms that were submitted by a client of the site, which led them to investigate the situation, ultimately resulting in Iherjirka heading to court to explain himself. After reviewing the case, a bankruptcy judge ruled that the software went far beyond simply providing clerical services and was, in effect, practicing law without a license.

While the AI could not be reached for comment, it'll no doubt find plenty of work as a jailhouse lawyer, advising inmates and helping out prison guards with their taxes.

From Wired News.

ATM's are going to the dogs. Now let's teach them how to vote.

It seems that Diebold, the company that has made us all nostalgic for the days of hanging chads, has decided to get out of the voting machine business.


It struck me as ironic because the same day I stumbled across that news item, I also found this little tidbit about dogs being trained to help their disabled owners to withdraw money from ATM machines and then I suddenly remembered that the the world's largest maker of ATM machines is....... DIEBOLD!

I see what the corporate types call synergy here. Diebold can effectively deal with all the problems people seem to have in operating their electronic voting machines by just teaching dogs how to use them. Heck, if this country really is going to the dogs, we should probably just give them the vote anyway. From this story, it looks like they could handle it.