Kendall Dunson to become next Montgomery Bar Association president
By Ben Flanagan, al.com
January 24, 2011
Beasley Allen shareholder Kendall Dunson will be installed as president of the Montgomery County Bar Association on Thursday, becoming the first-ever African American to lead the 96-year-old organization.
Dunson will become president at the MCBA annual meeting, which will be held at the Alabama Activity Center at 11:30 a.m. He will succeed Paul Clark, an attorney with Balch and Bingham.
MCBA executive director said Dunson's installation will mark another milestone in the state's history, especially since Montgomery is the birthplace of the Civil Rights Movement.
The MCBA strives to provide continuing education for attorneys and to foster professionalism among attorneys. Its offices are located in the Montgomery County Courthouse.
Dunson is from LaGrange, Ga., and is married to attorney Samarria Munnerlyn Dunson, assistant general counsel for the Alabama Department of Public Health.
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FTC: Red Flags Rule Clarification Does Not End ABA Challenge
By Mike Scarcella, The Legal Times
January 21, 2011
A recent law that clarifies the range of creditors who face new regulations to detect and prevent identity theft does not give a blanket exception for all lawyers, Federal Trade Commission lawyers said in court papers filed this week in Washington.
FTC attorneys said in the papers in the U.S. Court of Appeals for the D.C. Circuit that the legislation, which President Barack Obama signed into law in December, does not moot the litigation in which the American Bar Association sued the FTC over the so-called Red Flags Rule.
In August 2009, the ABA sued the federal trade agency in the U.S. District Court for the District of Columbia, saying that the government was improperly seeking to regulate attorneys as financial institutions. FTC lawyers said in court papers that lawyers are creditors because payment often occurs after legal services have been performed.
A federal district judge, Reggie Walton, ruled for the ABA, granting an exception from the Red Flags Rule to all attorneys engaged in the practice of law. In the D.C. Circuit, the FTC is challenging the decision. Earlier this month, the appeals court said it wanted to hear from both sides about the effect of the legislation on resolving the dispute.
In the court papers filed yesterday, an FTC attorney, Michael Bergman, said the Red Flags Rule clarification act that recently was signed into law significantly revised the definition of “creditors” who must follow the FTC identity theft regulation.
“However, nothing in the language of the Clarification Act suggests that lawyers—or members of any other profession or industry—are categorically exempt,” Bergman wrote.
Attorneys, Bergman said, are still subject to the identity theft regulation if the lawyer meets two conditions. First, the attorney must be deemed a “creditor” under the revised law. Bergman wrote about the second condition: “The attorney must either regularly obtain consumer reports in connection with credit transactions, or furnish information to consumer reporting agencies in connection with credit transactions, or lend money to or on behalf of a person (unless that loan is for expenses that are incidental to the services provided by that attorney).”
The ABA’s lawyers at Proskauer Rose are expected to file court papers by Feb. 3 addressing the extent to which the Red Flags Rule clarification measure ends the appeal.
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Gov. Deval Patrick wants to end private lawyers for poor
By Associated Press
January 24, 2011
BOSTON — Gov. Deval Patrick on Monday proposed ending the state’s practice of hiring private attorneys to represent most indigent criminal defendants in Massachusetts, a proposal the administration says will save $45 million a year, but is drawing criticism from defense attorneys.
Under Patrick’s proposal, the state would hire 1,000 salaried lawyers who would work for the state’s public defender agency instead of the current system of hiring private lawyers known as "bar advocates."
Patrick, who unveiled the proposal as part of his Fiscal Year 2012 budget, said that over 3,000 bar advocates currently handle about 90 percent of the Committee for Public Counsel Services’ annual case load. The agency’s fulltime staff of about 200 lawyers handles the remaining 10 percent of cases.
Patrick said the state’s use of private lawyers who bill at a rate of $50 to $100 per hour "comes at a significant cost to taxpayers."
"We need a better, more cost-effective system, and this proposal gets us that," Patrick said in a statement.
Supporters of the change say private lawyers who are paid by the hour are bound to run up higher costs than salaried lawyers.
But several defense attorneys slammed the proposal and challenged the governor’s claim that it would save the state money in the long run.
Boston attorney Stephen Weymouth, who does bar advocacy work as part of his law practice, said he doubts that 1,000 salaried attorneys will be enough to handle the caseload of the state’s public defenders. The state does not pay for health care, pension plans and other benefits for private bar advocates, but will have to provide those benefits for salaried attorneys, he said.
"I understand everyone’s attempt to save money — I get that — but this is just not the way to do it," Weymouth said.
"As much as people hate to admit this, the infrastructure in Massachusetts to deliver indigent legal services is one of the best, if not the best, in the country."
Patrick’s proposal would eliminate the Committee for Public Counsel Services and replace it with a newly created Department of Public Counsel Services, under the executive branch instead of under the judicial branch.
The new department would be responsible for verifying whether defendants are indigent and eligible for free defense services, a task that is currently administered by the Probation Department.
Prosecutors have complained for years that they have high higher caseloads, but receive less funding from the state than the private lawyers who do bar advocate work for the public defender agency.
The state’s district attorneys collectively receive about $92 million a year and handle about 300,000 cases, said Suffolk District Attorney Dan Conley. The Committee for Public Counsel Services receives about $168 million for its criminal defense work and handles about 200,000 criminal cases per year.
"There’s no incentive to assess the value of the case and make a decision on how to resolve the case quickly. The only way these lawyers make money is to bill a number of hours on a case ... that drives up the costs," Conley said.
But Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, said bar advocates bill an average of about nine hours for district court cases and receive $450 for that work.
"I don’t think anybody can suggest that $450 as the average cost is outrageous when you’re talking about somebody who is looking at jail time," Benedetti said.
"To suggest that they are out there overbilling and getting wealthy is just not accurate," he said.
Benedetti said states across the country have encountered problems by underfunding and overworking their public defenders.
"We cannot imagine that (the governor’s proposal) will save the money they are suggesting without essentially throwing quality by the wayside," he said.
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Lawyers to governor: Don't take our dues to balance budget
The Hampton Roads Virginian-Pilot
January 25, 2011
RICHMOND - Virginia lawyers are crying foul over Gov. Bob McDonnell’s plan to use their bar license fees to help balance the state budget.
McDonnell has proposed taking $5 million from the State Bar Fund to help support his spending priorities.
The money comes from the Virginia State Bar’s 29,411 active members, who pay $275 a year for the privilege of practicing law in Virginia, plus 12,207 associate members who pay $125 a year. The bar receives no support from the state general fund.
McDonnell, a Republican and a lawyer himself, has pledged to balance the budget with no tax increases.
In fact, however, his proposed $5 million transfer “would completely wipe out the bar’s cash reserve and would be an unprecedented tax on Virginia lawyers,” the bar said in a statement today.
The bar needs the cash cushion for unanticipated expenses, George Shanks, the bar’s president-elect, told a subcommittee of the House Appropriations Committee.
The bar regulates the practice of law, gives ethics advice to its members and metes out discipline to errant lawyers.
The current cash reserve is a result of three years’ worth of spending cuts to avoid a dues increase, Shanks said.
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New leader, same problems for Ga. public defenders
By The Associated Press
January 23, 2011
ATHENS, Ga. — The state's embattled public defender system has a surprising new leader — and a litany of complaints that is all too familiar.
The complaints go something like this: The cash-strapped system doesn't have enough staff to handle Georgia's indigent defendants. There's a seemingly endless tide of defendants that need legal help. And state lawmakers don't have enough faith in the system to give it the necessary funding.
The new leader tapped by Gov. Nathan Deal to handle these challenges was perhaps a startling choice: Travis Sakrison, an ex-prosecutor with the DeKalb County district attorney's office. But he and his backers hope he'll bring new ideas to a system that's been bruised by legal challenges and battered by waning legislative support.
"I'm excited about this opportunity," Sakrison said at the Georgia Public Defender Standards Council's first meeting in Athens. "This is a great organization that does important work."
He has his work cut out for him. Sakrison is the council's third leader in less than a year, creating instability that has unnerved some. He must learn to quickly navigate a sometimes cantankerous board, whose members have threatened to sue the state over funding woes and urged the governor to call a special legislative session for more money.
Perhaps his greatest challenge is to convince conservative lawmakers that the council is worthy of more funding. Republican leaders have slashed funding ever since the council picked up the $3 million taxpayer-funded defense tab for the 2008 trial of Atlanta courthouse gunman Brian Nichols. Prosecutors said his defense should have cost about $500,000.
Like other state agencies, the council faces more budget cuts this year. Deal's proposal recommends cutting the agency's budget by $1.2 million for the rest of this fiscal year and another $884,000 in the next fiscal year.
The specter of more legal challenges looms, as civil rights groups have filed one lawsuit after another that claimed the council failed its mission to provide adequate legal defense for Georgia's poor defendants.
The issues they have targeted have struck at the heart of the council's woes: They claim, among other issues, that the state failed to hire attorneys for about 100 inmates who wanted to file an appeal, and they say that some defendants have waited in jail for years because the council couldn't afford to pay for public defenders.
The internal challenges seem daunting, too.
Jerry Word, who heads the Georgia Capital Defender office, said his division is charged with defending 11 death penalty trials in the first six months of the year. Some are expected to be costly because they involve travel and the hiring of expert witnesses, he said.
"This is going to put a huge strain on what's already a strained budget," he said.
Another simmering issue is the debate over so-called conflict cases — those with multiple defendants. Jim Stokes, the conflict division's leader, said his unit is left with only a few dwindling options amid a growing number of those types of cases.
"We either have to have an infusion of money, we have to have fewer conflict cases, or we have to have more help from the legal community to take on pro bono cases," he said. "We are constantly looking for ways to cut costs — we've been in this situation for a while."
Council member Wyc Orr, one of the council's most outspoken members, dinged Deal for appointing a new leader without first consulting the board. And he worries the system will have to revert to a "bake sale theory of indigent defense" without more funding.
"This is such a huge step backwards," he said. "The state of Georgia has to go hat in hand to firms begging them to take cases that the state isn't taking. It's a sorry state of affairs."
Sakrison, who spoke little during the meeting as he adjusts to his new role, said he's confident he'll be able to handle the council's challenges. And in some ways, his background as a prosecutor gives him some advantages that his predecessors didn't have.
State Rep. Rob Teilhet, a former Democratic legislator who was appointed to the post in September, practiced mostly worker's compensation law. And his predecessor, Mack Crawford, is also an ex-legislator who was a general practitioner before leaving office when he was tapped as a superior court judge.
"You protect folks' constitutional rights and you also help people," Sakrison told the council. "My background is mainly working in court with the people who do that every day, and I'll try to do what I can to help you with that."
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Lawyers can't handle Tuesdays, survey reveals
By Laura Manning, The Lawyer (London, England)
24 January 2011
Lawyers hit melting point on a Tuesday, according to a new survey looking at workplace stress for those in the legal profession.
The research by recruitment consultants Michael Page International further found that 47 per cent of lawyers carry their stress home from work, leading them to drink (every now and then) or even call in sick to work.
Marketing director Eamon Collins said: “This research has told us that 10am on a Tuesday is the most stressful time of the working week, and it isn’t a coincidence that this is also when traffic to our website peaks.”
The study concluded that the stress is caused by numerous reasons from the most trivial such as IT issues, to mounting workloads leading 1 in 3 lawyers to cry.
The issue of workplace stress has been tackled head on by a number of law firms including one which was undertaken last year as part an initiative to help lawyers on recognising signs of stress and improved management techniques.
On the move: V. J. Graffeo
By The Birmingham News
January 14, 2011
V. J. Graffeo, an attorney with Haskell Slaughter Young & Rediker LLC, has been selected to participate in the 2011 class of the Alabama State Bar's Leadership Forum. The mission of the Leadership Forum is to build a corps of practicing lawyers who are leaders in ethics and professionalism.
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Surge of quick payments on oil spill claims concerns lawyers
By Dan Murtaugh, Press-Register
January 13, 2011 2011
MOBILE, Ala. -- Nearly 50,000 individuals and businesses have taken a "quick" final claims payment and signed away their right to sue anyone involved in the Gulf oil spill, though a free legal advice program promised by the claims operation is not yet fully functional.
The legal aid program will be up and running Friday, according to officials with the administrating agency, the Mississippi Center for Justice. Claims czar Ken Feinberg said he’s already referred 500 people to the program.
The quick pay option is part of the final claims process designed by Feinberg to distribute money from the $20 billion BP PLC agreed to set aside to pay spill damages.
It lets any of the 168,000 businesses and individuals who got money during the emergency part of the claims process get a final check — $5,000 for individuals, $25,000 for businesses — without further proof of damage. A total of 70,000 quick pay claims have been filed, according to claims facility data.
To get the money claimants must agree not to make additional claims or sue parties involved in the spill.
Two other options are available: final settlements, which cover all present and future damages and also require a lawsuit waiver; and quarterly interim payments, which don’t require a waiver. Both options require claimants to document their damages.
The lawsuit waiver has become controversial. Trial lawyers have argued that it is too broad. Attorneys general from Gulf Coast states have warned people to be cautious before signing it. Alabama Gov. Bob Riley has asked that the waiver be removed from the process altogether.
Feinberg said that he believes the quick payment option is popular because people have already been satisfactorily compensated for their spill damages or know they can’t prove further losses.
He also said it demonstrates that many claimants don’t have a problem with the waiver.
"When you have that many people choosing that option, they know what they’re signing," he said Monday after a town hall meeting in Moss Point.
Joanne Doroshow, executive director of the New York-based Center for Justice and Democracy, called the large number of people signing waivers "an enormous problem."
"It’s not possible that everybody understands it," she said. "The whole process has been horribly confusing. I think some people are just giving up at this point because it’s been so burdensome to get anything from the fund."
Doroshow’s group, according to its website, advocates for the right to trial by jury in civil cases, opposes tort reform and was "founded by consumer advocates to protect the civil justice system."
Lawyers opposed to the waiver have said that people should be allowed to keep an option to go after BP for punitive awards and to sue other responsible parties for both compensatory and punitive damages.
"Everyone should have the opportunity and be encouraged to talk to independent legal counsel to assess what they’re giving up in exchange for a $5,000 payment," said Steven Nicholas, an attorney with Mobile-based Cunningham Bounds who has been involved in oil spill litigation.
"There’s a real potential for punitive damages to be awarded in litigation," he said, "and people are giving that up."
Feinberg has argued that his operation will reward people with more money than the legal system, and do it more quickly. In addition, it’s a voluntary program, he has said.
If people don’t like the quick claim option or his final settlement offer, they can turn it down and file a claim with the Coast Guard or sue.
The free legal advice will be offered in conjunction with about a dozen other legal aid organizations on the Gulf Coast, said Sharon Garrison, a spokeswoman for the Mississippi Center for Justice.
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Number of lawyers in Iowa Senate is at an all-time low: One
BY GRANT SCHULTE, The Des Moines Register (Iowa)
January 17, 2011
The number of lawyers serving in the Iowa Senate is at an all-time low of one this session, according to the Iowa State Bar Association’s monthly magazine.
The Iowa Lawyer magazine reports that the lone attorney in the 50-member state Senate is Rob Hogg, a Cedar Rapids Democrat. Hogg was first elected to the Senate in 2006, after four years in the Iowa House.
The 100-member Iowa House has 15 lawyers. The new lawyer-legislators, according to the magazine, are Julian Garrett of Indianola; Chip Baltimore of Boone; Kim Pearson of Pleasant Hill; and Mary Wolfe of Clinton.
Garrett, Baltimore, and Pearson are Republicans. Wolfe is a Democrat.
Pearson has attracted attention in recent weeks because of her calls to impeach the four Iowa Supreme Court justices who remain on the bench after the November judicial retention vote. The justices have faced political attacks for their
unanimous 2009 ruling that allowed same-sex marriage in Iowa.
The magazine also reports that, for the first time in more than 40 years, the Speaker of the House is a lawyer. State Rep. Kraig Paulsen of Hiawatha works as an attorney for CRST International, Inc. in Cedar Rapids.
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Two Tuscaloosans join Bentley’s staff -Communications, legal posts filled
By Dana Beyerle, The Tuscaloosa News
January 13, 2011
MONTGOMERY | Gov.-elect Robert Bentley on Wednesday named five more people to his administration, including Tuscaloosa attorney R. Cooper Shattuck as his legal adviser and Tuscaloosa marketing executive Rebekah Caldwell Mason as communications director... Alabama State Bar President Alyce M. Spruell of Northport said Shattuck was an “excellent choice to be the governor’s legal adviser.” His extensive knowledge and expertise, coupled with his considerable intellect and sound judgment, will benefit all Alabamians,” Spruell said. “He is well-known among the state’s lawyers as a leader and has earned the respect of his colleagues during his two-plus terms as a member of the state bar’s Board of Bar Commissioners and as a past Tuscaloosa Bar president.”
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Is Law School a Losing Game?
By DAVID SEGAL, The New York Times
Published: January 9, 2011
[NOTE: This is a lengthy article.]
IF there is ever a class in how to remain calm while trapped beneath $250,000 in loans, Michael Wallerstein ought to teach it. Michael Wallerstein, who has a law degree, has $250,000 in loans and only the occasional job as a legal temp.
Here he is, sitting one afternoon at a restaurant on the Upper East Side of Manhattan, a tall, sandy-haired, 27-year-old radiating a kind of surfer-dude serenity. His secret, if that’s the right word, is to pretty much ignore all the calls and letters that he receives every day from the dozen or so creditors now hounding him for cash. “And I don’t open the e-mail alerts with my credit score,” he adds. “I can’t look at my credit score any more.” Mr. Wallerstein, who can’t afford to pay down interest and thus watches the outstanding loan balance grow, is in roughly the same financial hell as people who bought more home than they could afford during the real estate boom. But creditors can’t foreclose on him because he didn’t spend the money on a house. He spent it on a law degree. And from every angle, this now looks like a catastrophic investment. Well, every angle except one: the view from law schools.
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Alabama Supreme Court Justice Says Judges Should be Held Accountable Justice Tom Parker speaks on the importance of electing judges
By Deanna Murphy, The Severn Patch (Maryland)
January 8, 2011
Nearly every seat was filled at Heritage Community Church Friday with people waiting to hear Tom Parker, Alabama Associate Justice of the Supreme Court, speak on the importance of electing judges... Parker’s speech focused on the history of the judicial election process and the influence it has on our country. Parker went on to say that “One-fifth of grievances in the Declaration of Independence dealt with judges or abuses of the judicial system.” “I find it interesting,” Parker said, “that in all his flaws, Thomas Jefferson saw a problem in giving life-long appointments to judges.” After judicial abuses were exposed, Parker said, the legislative branch was added as a check on the nomination of judges.
Fundraising to keep judges from being bought is ironic
Commentary by Gail Kerr, THE TENNESSEAN
January 5, 2011
Lawyers and former judges are raising money from big law firms to try and preserve the current method of seating Tennessee's appellate court judges.
The irony is not lost: Those very legal eagles argue that allowing judges to be popularly elected would create a system in which special interests and big powerful law firms can buy the state's judiciary.
"They are raising money from lawyers who practice in front of the judges in order to save those judges' jobs," said Brian T. Fitzpatrick, assistant law professor at Vanderbilt University. "It is the same issue."
The debate has been raging for decades: judicial accountability versus judicial independence. Those who favor elected judges say the power should be in the hands of the people. The Tennessee Constitution agrees: Appellate judges "shall be elected by the qualified voters of the state."
But the state legislature, fearing that a judge who had to raise election money would end up being controlled by well-heeled special interests, created the "Tennessee Plan." A group of appointed experts come up with a list of potential judges. The list goes to the governor. He picks. Eventually, the judge's name is on the ballot for you to vote "yes" or "no" to keep in office.
Overall, the current system has worked beautifully to place appeals court judges who have followed the rule of law. But the system is obviously not what the constitution mandates.
State Republicans, who now control the House and Senate, are set to try and return the state to popularly elected judges. Gov.-elect Bill Haslam has said he favors the current system.
Group supports status quo
A nonpartisan group of legal and business leaders has formed Tennesseans for Fair & Impartial Courts to fight for the status quo. The group sent letters to Tennessee law firms asking for a $1,500 campaign donation to lead the fight to stop those who want to kill the Tennessee Plan.
The letter, which says electing judges "would lead to multimillion-dollar campaigns driven by political agendas and special interests," includes the names of five retired judges: Muecke Barker, George Brown, Frank Drowota III, Gilbert Merritt and Harry W. Wellford.
Attorney H. Lee Barfield II, chairman of the group's board, did not return a phone message before deadline Tuesday. Nor did attorney Tom Lee, an advocate for keeping the Tennessee Plan. The number for Tennesseans for Fair & Impartial Courts has been disconnected.
How could lawmakers create a system in which appellate judges run for office without the contamination of campaign contributions? Fitzpatrick, an expert on the issue, says one way is to keep the campaign at arm's length from the judicial candidate.
"Other states prohibit judges from knowing who gives money to their campaigns," Fitzpatrick said. "The judge is prevented by the code of ethics from ever knowing."
Unlike the new campaign, where the judges and the lawyers are listed on the fundraising letter.
"Contributions are welcome," it says, "and essential."
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New Stamp Will Honor Gregory Peck as Atticus Finch
By Debra Cassens Weiss, ABAJournal.com
January 3, 2010
The late actor who portrayed Atticus Finch in To Kill a Mockingbird will be portrayed on a postage stamp being issued April 29.
The stamp will feature a still photograph of Gregory Peck from the 1962 film, based on the novel by Harper Lee, according to the New York Times Arts Beat blog.
The ABA House of Delegates passed a resolution in August honoring the film for “the positive role that the book has played in the lives of lawyers, their families and the American public.”
Call to impeach judges is just wrong – [Op-ed]
BY Frank Carroll*, Des Moines Register (Iowa)
January 2, 2011
Bob Vander Plaats and three newly elected state legislators are absolutely wrong to call for the resignation or impeachment of Iowa's Supreme Court justices. Fellow legislators should refuse to support these views.
Vander Plaats and others talk about being "constitutional," and respecting our Founding
Fathers, while advocating ideas that are conspicuously absent in the constitution precisely
because our Founding Fathers rejected them.
In his Dec. 19 Register guest essay, Vander Plaats calls for the remaining Iowa Supreme Court justices to resign and urges Iowans to "respect the genius of our Founding Fathers in this state and this country when they devised a system with clear separation of
powers..." Yes, please, let us respect that genius.
Take a good look at what that genius says. The U.S. Constitution states in Article III, Section 1, that judges should "hold their Offices during good Behavior," meaning until they do something illegal - not unpopular. Federalist Paper No. 78, written by the same Founding Fathers who wrote the U.S. Constitution, explains that judges must not be
required to stand for election precisely in order to keep them from being beholden to the popularity of their decisions. Alexander Hamilton wrote: "This independence of the judges is equally requisite to guard the constitution and the rights of individuals from . . . dangerous innovations in the government, and serious oppressions of the minor party in the community." In other words, the reason judges should not be elected is because they must remain free to protect the constitution and not risk falling subject to the changing winds of politics or public opinion.
If you don't like this idea, remember it comes straight from the pens of the Founding Fathers. If we are so eager to respect their genius - and I agree, we should - we must look at what they really said. And what they said is judges need to be free from what is popular, in order to protect the constitution. This is because only judges who are insulated from outside intimidation and pressure can fairly administer justice and be perceived as doing so.
The Founding Fathers did not say, as Vander Plaats advocates, that judges should resign or be impeached when they make unpopular decisions.
The Iowa Supreme Court has a long and respected history of making unpopular but correct decisions. Its very first decision, In re Ralph, ruled that slaves were not property. In 1868, it ruled that schools should be desegregated, 76 years before Brown v.
Board of Education. And, in 2009, it ruled that two people of legal age could marry, regardless of their gender.
This does not mean that the citizens of Iowa don't, or shouldn't, have the final say. Of course they do, and should. In Iowa, "we the people" have the opportunity to vote against retaining judges. People did so on Nov. 2, and we respect that decision. But more important, Iowans can change the constitution if they choose to do so. Interestingly, however, in November Iowans voted overwhelmingly not to change our Iowa Constitution.
To Vander Plaats and like-minded people: Please, tell the truth. If you seek to wrap yourself in the constitution in order to cloak your extremist views with legitimacy, then do so honestly. If you don't like what the constitution says, then work to change it. But stop using the constitutions of Iowa and the United States to support your ideas that are patently contrary to our Founding Fathers' beliefs. Calling for the resignation or impeachment of the Iowa Supreme Court justices is destructive rabble rousing at its
worst and threatens the very heart of our constitution.
*Frank Carroll is president of the Iowa State Bar Association.