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The Honey Badger
By B John Burns
March 7, 2013

Antonin Scalia is the honey badger of our judicial system.

You’ve all seen the famous YouTube video about the Crazy Nastyass Honey Badger.  If you haven’t, check it out before you read the rest of this entry:  www.youtube.com/watch?v=4r7wHMg5Yjg

You all know that Justice Scalia said some pretty offensive things recently during an oral argument in a case involving the constitutionality of the Voters Rights Act.  It's just another “racial entitlement”, or something to that effect.  Everybody’s calling on Justice Scalia to apologize, or to retire, or in some manner or form to acknowledge that he understands his mistake.

Justice Scalia will not retire over this.  He will not apologize.  If he was an elected politician, he would apologize publicly.  Not Justice Scalia.

Because Justice Scalia is the honey badger, and the honey badger don’t give a ****.

Justice Scalia will not apologize, because he has a clear picture of what, in his mind, is the right position and the wrong position on virtually every subject.  He has a solid, unwavering world view.    If you disagree with him, you are wrong.  He is as comfortable being the sole dissenter in a case as he is writing the unanimous majority opinion.   The whole world can label him a racist, but he is unfazed.

Because Justice Scalia is the honey badger, and the honey badger don’t give a ****.

And it’s not because he is declining and thus, as some have suggested, needs to think about retiring.  Justice Scalia is not stupid.  His positions may be offensive to us, but he supports them with his unique brand of reason and precedent.  

When he is on our side, he is very, very good.  Antonin Scalia is the patron saint of the Confrontation Clause.  We know that especially here in Iowa.  Generally, he is not our friend on Fourth Amendment issues.  However, I just finished studying Baily v. United States, decided a couple weeks back.  Writing for the majority, Justice Kennedy held that the rule in Michigan v. Summers, 452 U.S. 692 (1981) that police executing a warrant to search a premises may seize all occupants of the premises incident to the search does not apply where police observe occupants leaving the premises but wait until the occupants are several blocks away.

Justice Scalia authored a very interesting concurring opinion in that one.  Justice Breyer, often viewed as one of the progressives on the Court, wrote a dissent joined by Justices Alito and Thomas.  Like the Court of Appeals, he examined the particular circumstances of the seizure in view of the policy justifications underlying Summers, and concluded that detention was reasonable.  Joined by Justices Ginsburg and Kagan, Justice Scalia countered that the Summers rule is a categorical one, and does not anticipate the type of balancing conducted by Justice Breyer.  If occupants are present during the search, Summers justifies their seizure, without any weighing of the circumstances.  The subjects in Bailey simply were not occupants.  Generally, Summers is a benefit to law enforcement, Justice Scalia noted, but “the Government must take the bitter with the sweet.”  He repeated language from his concurrence in Thornton v. United States, 541 U.S. 615 (2004) that “[c]onducting a Summers seizure incident to the execution of a warrant ‘is not the Government’s right; it is an exception – justified by necessity – to a rule that would otherwise render the [seizure] unlawful.”

We can USE that one.

By the way, I was first introduced to the Crazy Nastyass Honey Badger video by Fifth District Judge Mary Pat Gunderson.  She shouted across the parking lot one morning that I should Google the honey badger and watch the video.  It changed my life.  A couple weeks ago, I went to see the Second City touring troupe here in Des Moines.  I ran into Judge Gunderson’s husband, Joe, and one of her twin sons.  I can’t tell you which one it was, because they look alike.  I’m sure she can tell them apart.  But this is what I really respect about Judge Gunderson.  She does what I would do if I had twins.  I would shower one of them with gifts.  I would send him to Second City, and then make the other one stay home and clean his brother’s room.  It would be a grand sociological experiment.

Maybe it’s because I’M the honey badger.  And I don’t give a ****.




 
 
Biting the Hand that Feeds Us (Again)
By B John Burns
January 25, 2013

There’s a lot of good things to say about today’s Supreme Court decision in State v. Huston.  Most of all, it’s a reversal of a conviction carrying a 15-year prison sentence, and a big win for Assistant State Appellate Defender Shellie Knipfer and Student Legal Intern Sam Berbano.

Essentially, the holding is that where the prejudicial effect of testimony, in a child-endangerment trial, that there was a founded child abuse complaint against the defendant, along with testimony describing the procedures available to appeal such a finding, substantially outweighs its probative value the defendant is entitled, under Iowa R.Evid. 403, to a new trial.

Justice Waterman’s opinion contains some of that beautiful language that I like to see about the danger of calling a government witness to place the official imprimatur of approval on the State’s case.  So I should be pretty happy, right?

Well, yes I am.  Nevertheless, being the guy who has never passed on an opportunity to bite the hand that feeds me, I feel compelled to bring up one thing.  See, I’m the guy who was a full-time appellate lawyer for the first nine years he was in practice (out of the 28 which, by the way, began 28 years ago TODAY), and then a part-time appellate lawyer for the last 14.  So I notice these things.

In the section of the opinion captioned “Scope of Review” Justice Waterman correctly noted, “We review evidentiary rulings for abuse of discretion.”  But then, in the very next paragraph, under “Analysis,” Justice Waterman states, “We must decide whether the district court committed reversible error by allowing the DHS caseworker to testify that the child abuse report against Huston was determined to be founded.”

There is a difference.  Either the standard is one of abuse of discretion, or it’s review for reversible error.  You were right the first time.

Sorry.
 
Newtown
By B John Burns
December 15, 2012

It’s Saturday, December 15, and I’ve been on and off Facebook since I woke up this morning.  We’ve had two TVs on CNN since noon yesterday.  Everybody has an opinion and, as seems to be the case on every front these days, the opinions seem to gather at two distant poles.  Emotions are stirred.

Is it time to do something once and for all about the pestilence of handgun violence?  Or is this an excuse for the left-wing tyrants in Washington to trample on my Second Amendment rights?

I’m not entirely sure I know where I fall in this spectrum.

I imagine the situation might arise that the United States is occupied by some invading army, and it would fall upon an armed individual citizenry to offer resistance. This in my mind was the motivation behind original adoption of the Second Amendment, although literally it is written more broadly, and interpreted more broadly after District of Columbia v. Heller.

I don't own any guns. I don't want to. I understand the argument that circumstances might arise in which I would find myself in a position to protect myself and my home with a gun. I'm sure this has happened, though I can't recall hearing even anecdotal stories where it did. You hear many more accounts involving people who possess guns legally for their protection, and something goes awfully wrong. In a nutshell, that's probably what happened in Newtown yesterday.

Honestly, I don't know that I'm on either side of this debate. The argument that gun violence is not at least a partial product of the availability of firearms in our society is simple-minded and wrong.

On the other hand, to say that our culture of violence exists solely because of the proliferation of guns is equally simplistic, as is the belief that tightening restrictions on gun ownership is going to cure gun violence. If this was true, we could go directly to the heart of the issue by simply making it a crime to kill other people. That's been tried before, and it hasn't seemed to work.

Other countries permit private ownership of guns. But no country on Earth has experienced a fraction of a fraction of the amount of gun violence that we have seen in the United States. Why is THAT??

I've got no idea.   
 
Dina Manfredini
By B John Burns
December 6, 2012

Besse Cooper died on Tuesday.. She lived in Monroe, Georgia. She was the oldest person in the world. She was 116.

As it turns out, the oldest person in the world now is Dina Manfredini. She is 115. She was born in Italy, but she lived most of her life in West Des Moines, Iowa. I grew up in West Des Moines, Iowa. Now she lives in Johnston, Iowa. I live in Johnston, Iowa.

The sad fact of the matter is that you just don't stay the oldest person in the world for very long. There's really only one thing left to do, isn't there?

But at least for now I live in the same town as the oldest person in the world. That's pretty awesome. I was thinking of taking the morning off and seeing if I could go hang with her. Maybe I'll take her to the Cracker Barrell. Old people LOVE the Cracker Barrel.

Here's the kicker. Dina Manfredini was born in 1897. Well, my grandmother, Nora Burns, was born in 1897. If my grandmother could have hung on another 18 years, maybe SHE'D be the oldest person in the world today!! Maybe if my grandmother had moved to Johnston, she would have hung on.

I posted these same observations on Facebook on Tuesday night.  One of my Facebook friends commented, “R.I.P. Besse Cooper.  You lived a very long,wonderful life!”

My response: R.I.P. Besse Cooper.  

You gave your life to give Johnston resident Dina Manfredini the title.
 
There's Got to Be a Reason
By B John Burns
November 7, 2012

Perusing on the Iowa Secretary of State website some of the statistics from what was, all around, a really decent night, I noticed that District 5C Judge Mary Pat Gunderson was retained with an approval percentage of 79.40.  That’s a point and a half higher than any achieved by each other judge in district 5C (including Judge Eliza Ovrum, who once hit me harder in the face than any man had ever hit me – but that’s another story).  Why is that?

I can guess.  It’s because people did the research.  In the last couple weeks, I’ve noticed that I’ve had an unusually large number of hits on my music website, www.bjohnburns.com.  I am able to tell which search engines, and which search terms,  people use to find my site. I’ve noticed that many of the recent hits on my site resulted from people Googling “Mary Pat Gunderson.”  

About 15 years ago, when she was a young, green Assistant Polk County Attorney, Judge Gunderson was, for about a month, the lead singer for a band I was playing in.  There is a photograph on my website of Judge Gunderson, then a much, much younger woman, singing with my band.

So people have done the research.  They looked into Judge Gunderson, saw that she used to perform with ME, and gave her, having been on the bench for less than a year, the highest approval rating of any judge in the district.  I do have that effect, apparently.

I’m thinking that has to explain why Justice David Wiggins, while successfully warding off his own retention challenge, received the LOWEST approval rating of any jurist on HIS Court.  It’s because he NEVER SANG WITH ME!!

It’s got nothing to do with Bob VanderPlaats.
 
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