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Clark Memorandum: Spring 1992 J Brigham Young University Law School BYU Law Digital Commons The lC ark Memorandum Law School Archives Spring 1992 Clark Memorandum: Spring 1992 J. Reuben Clark Law Society J. Reuben Clark Law School Follow this and additional works at: https://digitalcommons.law.byu.edu/clarkmemorandum Part of the Judges Commons, Legal Biography Commons, and the Legal Profession Commons Recommended Citation J. Reuben Clark Law Society and J. Reuben Clark Law School, "Clark Memorandum: Spring 1992" (1992). The Clark Memorandum. 11. https://digitalcommons.law.byu.edu/clarkmemorandum/11 This Article is brought to you for free and open access by the Law School Archives at BYU Law Digital Commons. It has been accepted for inclusion in The lC ark Memorandum by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. CONTENTS SPRING 1992 H Reese Hansen It Is Given unto You toJudge 2 Dean Sheila K. McCleve Scott W Cameron Editof A Viewfrom the Bench Brigham Young University’s 1 6 Young Judges 8 Charlcs r) Cranncy Carri P Jenkins Associate Editor Dee Bensoiz Carri P Jenkins 14 Conlributing Editor On His Own Schedule Lisa B. Hawkins Linda A Sullivan Art Director ‘1’he Coriolanus Syndrome Is It Virtuous to Be Obstinate? 20 John Snydei Photographer BruceC Hafen Joyce Janctski Judicial Clerkhips Assistant Copy Editor Other Mountain Topsfiom Which to View the World 28 Larry M Boyle Memuranda 34 SPRING 1992 The Clark Memoranduum is published by the J Reuben Clark Law Society and the J Reuben Clark Law School, Biigham Young University Copyright 1992 by Brigham Young University All Kights Reserved Cover Illustration by Brian Ikrshisnick jurisdiction excludes real property, domestic, and probate On the other hand, part of judging is evaluating people A subjects, with a $20,000 limitation on damages sought judge must appraise a lawyer’s reliability, preparedness, and Criminal jurisdiction excludes felony trials However, I truthfulness. And certainly when judges sit as triers of fact, do conduct everything from high-profile preliminary they weigh the credibility of the witnesses, examine their hearings on capital homicides and other felonies to jury demeanor, and analyze their or bench misdemeanor trials truthfulness Similarly, in If one were to draw an analogy between serving as a sentencing, judges assess not judge in my court and serving as a doctor or a restauran- only the defendant but his or teur, my work would be comparable to that done in a her family and associates, M A S H unit or a fast-food chain In my urban court set- the victims, and the effects ting, volume is extremely high, caseload pressing I see of the crime on society thousands of people a year. Consequently, in the evalua- Mine is a people career What I enjoy most about it is tion process, it is critical that the great diversity and the universal threads I see in people’s judges look at people from lives For instance, there isn’t a man or a woman who has the same human level we are come before me who hasn’t evidenced some relation to all on Otherwise, “’tis high loved ones The people who face me also recognize that they to be a judge” (“Truth are agents who havc made choices that place themselves Reflects Upon Our Senses,” before me And everyone I’ve seen has expressed to some H?/mns (1Y85) 273) extent his or her views on the purpose and meaning of this When lawyers considcr existence through the actions that bring them to court judging, their viewpoints Individual examples quickly come to mind A man in his often focus on burdens of early twenties negligently shoots to death a young girl by proof, rules of evidence, and sighting her and then pulling the trigger on what he procedure and substantive thought was an unloaded riffe A streetwalker, having been law. They know that onec a incarcerated repeatedly, dies from thc effects of AIDS An case is taken, winning it alcoholic, who had been convicted of driving under the depends upon meeting the influence of alcohol several times, serves the maximum peri- burden or not, following the od of incarceration, becomes physically healthy, reunites rules, and arguing the law with his wife and children, is rehired by his employer, and In judging, regard for voluntarily promises me hc will not return to court on crim- the rule of law is critical inal or alcohol-related charges again. In eight years, he Natural laws and God’s hasn’t laws are constant and con- sequential To the extent human law can be the same, human beings enjoy order, equal treatment, and fair process Out of that, free- EOPLE OFTEN ASK ME how it’s possible to judge dom is born and survives It is that rule of law lawyers anothcrP human being In the sense of making an ultimate recognize, consciously or not, in preparing their cases for moral pronouncement, I simply respond that that’s not my trial or appeal It is that same rule of law that judges must business-not that doing a little moralizing isn’t a tempta- follow in order to avoid arbitrary, despotic tyranny by the tion with all that one sces from the bench I scc everything bench from police officers who sinccrcly regard criminals as lcss Perhaps because its purpose is to resolve conflict, judging than human to lawyers who anonymously pay restitution for offers an opportunity to experience how people act in food stolen by transients There are businessmen who for- intense life settings The forum is public Society’s ability to give debts to resolve disputes and court employees who help affect lives is nowhere more powerful Contest, persuasion, the homeless find shelter and argument are courtroom tools Property, freedom, life While it is a temptation on the bench to do a little itself can be taken away from iiidividuals And the conse- moralizing about people, one can resist by remembering quences of choices people make are never more focused in that “all have sinned and come short of the glory of society than they can become in trial God ” (Romans 3:23) Humans-unlike God, who sees There are those who believe they would enjoy judging our hearts perfectly-discern the intent of the heart because of the power, prestige, and independence it from circumstances and acts of the individual, imper- offers And there are those who recognize that from a fectly listening to the Spirit Judges, being human- judge’s observation point on humankind, the constant albeit rumors to the contrary-are therefore in no inhumanity, conflict, and greed attendant to the office position to issue moral pronouncements rcnder the position unenticing “AII have sinned and tome short of the glory of god.” <Romans 3:23) “See that ye do not judge wrongfully.9p( Moroni 7:18) C I. A R K M E RI 0 R A N D U M __ ~- But judging, like anything involving people, is an oppor- I see statements on faith in the anguish of alcoholics tunity to serve, Judging is service when it restores some whose names I know because of their frequent appearances measure of hope, enforces consequences of actions taken, or in my court on public intoxication charges I see statements resolves disputes If it’s no more than locking people up and on faith in cocaine addicts and dealers, in streetwalkers, awarding people money, it is of little value to humanity and forgers, thieves, and murderers I see statements on faith in worthy of little regard lawyers who prepare their cases with dedication and thor- When one renders judgment in any given case, one ren- oughness and in lawyers who push beyond the edge of rep- ders service in at least two ways One decides the particular resenting their cases in a light most favorable to their issue in the lives of the people present in court-a very clients. specific and immediate act of service And simultaneously, And I make statements on faith when I walk into the one defines rules, which can be known and used by all people courtroom and try to disregard community or bar approval, affected by that court Service is less direct when it defines rules, but it is still service because it makes a difference in people’s lives Both appellate and trial courts perform these simultaneous func- tions At the appellate level, a judge works with words At the trial level, a judge sees the faces At whatever level a judge works, however, experiencing the prob- lems in people’s jives will unveil V the Christian imperative to serve Further, the only way to be a judge and not be destroyed by the power, prestige, inhu- to see all the people I serve as children of God, and to allow manity, and conflict attendant to the office is in remem- or reject the Spirit’s ability to make up, after all that I can bering that judging is serving do, the difference in what Z cannot discern in people before Our Lord, the Creator of the universe, who dwelt among me Every day in our lives, in all contexts, we each decide us, who redeemed and sustains us, says that His work and our positions on the issue of faith His glory is to serve us by bringing to pass our immortality Similarly, each day we state our understandings of love. and eternal life. Who are we not to be serving? Love is charity, the greatest of all gifts, the pure love of Whatever one does professionally makes little difference Christ given without condition to endure forever Charity is I assume that if the Gospel is true, it is true seven days a that love which the Lord has for us and that love which we week It can meet any Fhallenge, withstand any opposition are trying to learn to have for Him and for each other With Therefore, it is not only applicable to but also infused in all it,
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