In the Matter of Thomas, et al. (Presiding Disciplinary Judge)

This is not an appellate opinion but we’re moved to comment because so many people are already talking about its style.

There was a time when trial judges knew and enforced the forms and conventions of findings and conclusions. Those days are long past. Calling a finding a conclusion, or vice versa, could earn you a mild rebuke from a good judge; nowadays it is so routine that often, as here, there is no attempt at distinction.

Also routine is the inclusion of random thoughts, observations, and other pearls of wisdom that aren’t either one but that the writer just can’t leave out. The PDJ’s excuse is presumably that Rule 58 calls for a “report” that “includes” findings and conclusions, so his office can throw in whatever else it pleases.

But should it?

This opinion is the problem in its most acute form. The thought that extraordinary subjects demand extraordinary responses, even to the extent of drawing upon the divine and the classics, is hardly unique:

I thence invoke thy aid to my advent’rous Song, that with no middle flight intends to soar . . . while it pursues Things unattempted yet in Prose or Rhyme . . .

What in me is dark illumine, what is low raise and support; that to the height of this great Argument I may assert Eternal Providence, and justify the ways of God to men.

The problem with enlisting the Almighty is that He (or She, or Whatever) is – for reasons that do not entirely passeth the understanding – more likely to respond to Milton than to your local lawyer/judge/bureaucrat. Heroic efforts that fall flat may deserve to be praised but are instead laughed at, as is happening to this opinion.

And that’s a bad thing, for more than one reason.

First, the laughing is not only at individuals but also at the institution – the PDJ’s office and, by extension, the Court. Yet the point of the thing – of throwing out the old scheme and replacing it with the PDJ apparatus imported from Colorado – was to strengthen faith in and respect for our policing system.

Second, and worse, a thing like this can produce not only laughter but suspicion. A legal tribunal is supposed to be above the fray, to be impartial no matter how contentious the issue. Writing a dark-and-stormy-night melodrama – complete with heroes, villains, faux-Greek tragedy, and elaborate moral judgments – signals the opposite. It suggests a tribunal joyously leading the charge for what it obviously considers the emotionally satisfying result. PDJ panels can talk about their “sui generis” mission all they like but sui generis partiality is still partiality. We do not suggest that these gentlemen lacked impartiality. But their form of expression does their case, and their office, and our profession, no good at all.

(link to opinion)

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