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Court Reviewvolume 53, Issue 2 the JOURNAL of the AMERICAN JUDGES ASSOCIATION

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Court Reviewvolume 53, Issue 2 the JOURNAL of the AMERICAN JUDGES ASSOCIATION Court ReviewVolume 53, Issue 2 THE JOURNAL OF THE AMERICAN JUDGES ASSOCIATION TABLE OF CONTENTS EDITORS ARTICLES Judge Steve Leben Kansas Court of Appeals 53 Introduction to Special Issue Professor Eve Brank Nina A. Kohn University of Nebraska MANAGING EDITOR Charles F. Campbell 54 Recognizing Elder Mistreatment: A Guide for Courts National Center for State Courts Laura Mosqueda, Theresa Sivers-Teixeira & Stacey Hirst SPECIAL-ISSUE EDITOR Professor Nina A. Kohn Syracuse University 62 Elder Protection Courts: Responding to the Now, EDITORIAL BOARD Anticipating the Future Kelly Lynn Anders Patricia Banks Kansas City, Missouri Judge Karen Arnold-Burger Kansas Court of Appeals 64 Whom Do You Represent?: The Role of Attorneys Representing Pamela Casey, Ph.D. Individuals with Surrogate Decision Makers National Center for State Courts Nina A. Kohn Judge B. Michael Dann National Institute of Justice Judge Julie Kunce Field 70 Prosecuting Elder Abuse: A First-Hand Account Fort Collins, Colorado Page Ulrey Judge John Irwin Nebraska Court of Appeals Tales from a Supportive Guardianship Judge Leslie G. Johnson 74 American Institute for Justice Robert D. Dinerstein Steven Lubet Northwestern University Judge Gregory E. Mize Washington, D.C. Elizabeth Neeley, Ph.D. University of Nebraska DEPARTMENTS Judge Devin R. Odell Fort Collins, Colorado 46 Editor’s Note Judge David Prince 47 President’s Column Colorado Springs, Colorado David Rottman, Ph.D. 48 Thoughts from Canada National Center for State Courts Judge David Shakes 86 Crossword Colorado Springs, Colorado Professor Alan Tomkins 88 The Resource Page University of Nebraska Court Review THE JOURNAL OF THE AMERICAN JUDGES ASSOCIATION Volume 53, Issue 2 2017 Court Review, the quarterly journal of the American EDITOR’S NOTE Judges Association, invites the submission of unsolicited, e are pleased to bring you a special issue on elder mistreat- original articles, essays, and book reviews. Court Review seeks to provide practical, useful information to the work- ment. This issue was largely organized by our special issue ing judges of the United States and Canada. In each issue, we hope to provide information that will be of use to Wguest co-editor, Nina Kohn, J.D., Associate Dean for Research judges in their everyday work, whether in highlighting and David M. Levy Professor of Law at the Syracuse University College of Law. new procedures or methods of trial, court, or case man- agement, providing substantive information regarding an She is a well-published and respected expert in the area of elder law. Ms. Kohn area of law likely to be encountered by many judges, or by providing background information (such as psychology or recruited authors representing many facets of elder mistreatment and she other social science research) that can be used by judges details the articles and general area in her special issue introduction. You will in their work. Guidelines for the submission of manu- scripts for Court Review are set forth on page 85 of this have the opportunity to read articles from issue. Court Review reserves the right to edit, condense, or reject material submitted for publication. the perspective of a physician, judge, prose- cutor, law professor, and guardian. Each Advertising: Court Review accepts advertising for prod- ucts and services of interest to judges. For information, author brings a unique viewpoint to the contact Shelley Rockwell at (757) 259-1841. topic in a way that we hope will be useful to The cover photo is of the Sherman County Courthouse in judges as they hear cases about elder mis- Goodland, Kansas. Cover photo by Steve Leben. treatment or simply hear cases involving ©2017, American Judges Association, printed in the older adults. United States. Court Review is published quarterly by the American Judges Association (AJA). AJA members In addition to the articles that are part of receive a subscription to Court Review. Non-member sub- scriptions are available for $35 per volume (four issues our special issue, you will also find our usual per volume). Subscriptions are terminable at the end of features including the President’s Column, Thoughts from Canada, and the any volume upon notice given to the publisher. Prices are subject to change without notice. Second-class postage crossword puzzle. As always, we are extremely grateful for these regular con- paid at Williamsburg, Virginia, and additional mailing offices. Address all correspondence about subscriptions, tributions and we hope you are enjoying them as much as we are. undeliverable copies, and change of address to Associa- Finally, on our Resource Page we provide information about two new pub- tion Services, National Center for State Courts, Williams- burg, Virginia 23185-4147. Points of view or opinions lications. The first is a new book from the American Bar Association, Enhanc- expressed in Court Review are those of the authors and do ing Justice: Reducing Bias. It surveys the rich research on implicit bias while not necessarily represent the positions of the National Center for State Courts or the American Judges Associa- focusing on the intersection of implicit bias in the court system. The second tion. ISSN: 0011-0647. is a new offering from the National Center for State Courts’ Center for Sen- Cite as: 53 Ct. Rev. ___ (2017). tencing Initiatives. This time, the Center has produced a brief but well- researched summary of evidence-based practices for making offenders placed on probation more successful.—EB 46 Court Review - Volume 53 President’s Column JUDGES HAVE A JOB TO DO Russell J. Otter n recent times, there has been a marked increase in attacks branches or that protect the disadvantaged and those on the independence of the judiciary in democratic soci- without political power. Ieties—Pakistan, Venezuela, Turkey, Canada, and the United States. These attacks are significantly more damaging when Intemperate personal attacks on judges by political lead- they emanate from the other branches of government—the leg- ers are simply wrong. The political leaders of our coun- islative and the executive. In response, judges must speak out try have an obligation to foster public understanding of to preserve and protect judicial independence, a vital pillar in the role of courts, even when they disagree with a court’s the architecture of healthy and vibrant democracy. ruling. The concept of judicial independence can be traced back to 18th century England. At its simplest, it means that the judi- Judges have historically been reluctant to respond to ciary needs to be separated from the other unfair attacks. But as far back as Chief Justice branches of government. Courts should not be John Marshall, there have been times when subject to improper influence from the other judges have seen the need to speak up. This branches of government or from private and par- is one of those times. tisan interests. Though not a huge fan of the judi- ciary, President Andrew Jackson did say that “all The leaders of the American Judges Associa- rights secured to the citizens under the Constitu- tion will speak out in defense of judges who tion are worth nothing, and a mere bubble, except are unfairly attacked, and we encourage oth- guaranteed to them by an independent and virtu- ers to do so too. Unfair or unseemly attacks ous judiciary.” I particularly enjoy the colorful on individual judges are not merely an attack phrasing of a 19th century British Prime Minister, on that individual judge—they are an attack Lord Salisbury: “The judicial salad requires both on the institution of the judiciary, an institu- legal and political vinegar, but disastrous effects tion indispensable to our democracy. will follow if due preparation is not observed.” Justice Neil Gorsuch, the most recent appointment to the All of us should use every opportunity to educate the public U.S. Supreme Court, asserted during his Senate confirmation of the role of the judiciary in a democracy—who it is; what it hearing that “[u]nder our Constitution, it is for this body, the does; and who the public is and why what it thinks matters. people’s representatives, to make new laws. For the executive to Schools, service clubs, public forums, and even written judg- ensure those laws are faithfully enforced and for neutral and ments are excellent mechanisms to do this “job.” A very effec- independent judges to apply the law in people’s disputes.” tive initiative employed by at least two Canadian provincial When members of the other branches of government label a chief judges was to participate in call-in talk-radio shows. judge’s decision “ridiculous,” characterize a judge as “so- It is worth remembering that while both courts and legisla- called,” or threaten to defund courts that struck down laws tures are entitled to enforce rights, only the courts have the they found unconstitutional, judicial integrity and indepen- institutional characteristics that best offer the possibility of dence are needlessly harmed. responsiveness to minority concerns in the face of majoritarian Accordingly, on April 29, 2017, the Board of Governors of pressures, namely independence. Decisions in specific cases are the American Judges Association, acting in the AJA’s role as the made independent of the voters’ electoral judgment. Court Voice of the Judiciary®, issued this statement in a news release: decisions can and will attract controversy—free speech permits that. What should not be condoned are unwarranted ad The late Chief Justice William Rehnquist once said that hominem attacks on judges. Education by judges can be a very criticism of judges and their decisions “is as old as our effective weapon to blunt these types of attacks. Republic” and can be a healthy part of the balance of There is no better way to prepare for such presentations than power between the branches of government. Today, to attend judicial education programs like the ones being however, recent attacks on judges have not only become offered by the American Judges Association at its annual meet- unhealthy but threaten to undermine the public’s under- ing, September 10-15, 2017, in Cleveland, Ohio.
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