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JUDGE PHILLIPS: Why I declined to swear-in circuit clerk on Jan. 1, 2011

JUDGE PHILLIPS: Why I declined to swear-in circuit clerk on Jan. 1, 2011

April 30, 2012

A recent posting (see blog at “Received a letter in the mail about Dennis Milligan”) has rekindled discussion about my declining Mr. Milligan’s request to swear him in on January 1, 2011. I have been called a “misfit,” among other things, and an embarrassment to the judiciary. The Code of Judicial Conduct allows me to respond to such criticism.

I arrived at the courthouse January 1, 2011, to perform a ceremonial duty. I was volunteering my time...

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Peter, I realize my opinion means very little to you so please feel free to dismiss the following as worthless drivel if it makes you feel better.  His rebuttal to a remark by (I think shadow) comes across to me as overly defensive and a poor attempt to justify his actions.  At the time, the criticisms of Judge Phillips were brief and would have been forgotten (and in fact probably already were) until he brought the subject back up.  In his own words, here is how he justified not swearing in Mr. Milligan:

"I could not in good faith administer the oath to a person whom I believed had already violated it. In firing five women who had a combined experience of over 50 years, I believed that Mr. Milligan had, in violation of the First Amendment to the U.S. Constitution, denied some of these women their rights to free speech and their rights to associate with whom they pleased. I also believed he had jeopardized the operations of the Circuit Clerk’s office, upon which the Circuit Judges depend, and thus could not in good faith swear to “faithfully discharge the duties.”

So, in other words, Mr. Milligan was presumed guilty of violating the employees' First Amendment rights without the benefit of a trial by a jury of his peers, by a man whose very job is upholding the rights as provided by the US Constitution.  Except, of course, the right to be considered innocent until proven guilty.

There was no lay off, these people was fired and replaced.  Freedom of speech was denied to one employee and the taxpayers paid for it.   The lawsuits are stacking up against Milligan and the clerks office 3 and counting.  

This is civil not criminal, Innocent until proven guilty only applies to criminal, not civil cases.

innocent until proven guilty of the most common misconceptions.

Henry said:

So, in other words, Mr. Milligan was presumed guilty of violating the employees' First Amendment rights without the benefit of a trial by a jury of his peers, by a man whose very job is upholding the rights as provided by the US Constitution.  Except, of course, the right to be considered innocent until proven guilty.

True, this would be a civil matter not criminal.  However, the plaintiff still must prove his case against the defendant.  The onus of proof is on the plaintiff, not on the defendant.  So, while innocent until proven guilty does not strictly apply (since there is no "guilt" in a civil matter), the premise behind which it stands is still very prevalent.  I would hope that Judge Grisham does not go into court with the presumption that anyone is guilty until both sides have had the opportunity to present their cases.  Judging by his words in the letter, I have some reservations of his abilities to hear both sides though.  Reservations, I might add, that I did not have until this letter.

In civil cases, the burdon of proof applies to both sides.  The statement "beyond reasonable doubt"  does not apply.  Also pleading the 5th cannot be done by the defendant.  Just tidbits burned into my brain from college.

If I am not mistaken, and I'll have to defer to the knowledge of the lawyers on this site, the burden of proof in a civil matter shifts only after the plaintiff has made a prima facie case in order to refute the plaintiff's claims.  During these events (the non-swearing in of Milligan) this had not occurred, which leads me to believe that Judge Phillips had a preconceived notion of Milligan and acted accordingly.  Actions that I find to be childish and above one who believes a person deserves a fair trial.  Just my personal opinion, you are free to your own.

The burden of proof remains on the plaintiff in a civil case throughout the trial and is "preponderance of the evidence.". In a criminal case it is "beyond a reasonable doubt" and remains on the state throughout.

I have a question for Henry. Suppose you are adamantly opposed to gay marriage but it has nevertheless been legalized. You are a JP with the authority, but with no legal obligation, to perform marriage ceremonies. A same-sex couple asks you to unite them in marriage. Do you cast your convictions aside and perform the ceremony, or do you suggest that maybe it would be better for them to find someone else to do it?

Wouldn't the easy way out be to just pretend that you don't have strong feelings, keep your mouth shut, perform the ceremony, and avoid any criticism that may result? If we expect all of our elected officials to take the easy way out, is that not setting a pretty low standard?

Very nice thought experiment Boyd.  First off, let me say that I do not oppose same-sex marriage, but for the sake of the argument let's say I did.  That's a tough question for me to answer.  I see two likely answers:

1. I suppose that since the act of same-sex marriage is legal, I would feel obligated to perform the ceremony. 

2. Having a previous understanding with another JP wherein I would send the couple to that person, probably giving the couple a plausible excuse as to why I couldn't do it (trying not to offend the couple, as regardless of whether I believed they should be getting married or not, I still can't see myself wanting to be rude to anyone) .

However strongly I (hypothetically) feel about the issue, I still don't think it would be my place to tell people what they can and cannot do barring it's legal.  As such, if it were legal and I didn't like it strongly enough, rather than refuse to marry the couple, I would be either promoting a candidate who would try to repeal the law or campaigning for that position myself. 

I am not expecting the Judge to take the easy way out.  I applaud people for standing up for their beliefs.  However, this isn't a matter of simply disapproving of a political figure's policies.  This is a matter of condemning someone before it can be determined whether or not their actions were a violation of someone's rights.

Here's a hypothetical situation for you:  Perhaps you have read the Philip K. Dick novel Minority Report, or at least seen the movie.  In it, Dick proposes the question of pre-crime and whether the possibility of committing a crime is cause enough to arrest someone.  (I know that this is a civil issue and so therefore the two are not directly related, it's just being used to draw similarities.)  Would you be in support of a legal system that pre-decided cases based on whether or not someone possibly could one day be guilty of a crime or held liable for damages?



You’re saying that he convicted and therefore did not want to swear him in. I read his letter and it’s clear to me that he did not care to perform this "optional" service for a person he did not believe had the best interest of the citizens in mind. He says he quietly tried to recuse himself from this extra service he performs, I believe it was Milligan that made such a big deal about this and decided to make it a publicity stunt. The judge was even exonerated from any wrong doing by the justice system. So what exactly did he do that was wrong? His job is not to swear in officials...


Milligan on the other hand did cost the county money for his decisions, and it was stated that the case had merit on the fact that he violated someone’s first amendment rights. I don’t call that pre-decision, I say that’s a judge that knows the law and did not want to be a part of violating those laws he took a oath to uphold. He obviously could not in good conscience swear in a person that he did not believe was doing the right thing. This guy had fired people before he’s even taken office; I ask you how do you do that?


 I think we need more upstanding people in politics. This judge has only received the highest remarks when I talk to anyone around the county. Ricky, Rick Meyer, and the others of that group that have attacked that judge and many other officials around saline county have not had any good words spoke about them, they seem to only strive for the Cronyism system in Saline county.

Next hypothetical for Henry:  You are a doctor but you are adamantly opposed to abortion.  A woman asks you to perform an abortion.  You have the skill but are under no legal obligation to do so.


I suppose, based upon your last response, that since abortion is legal you would perform the abortion.  Am I correct?

The thing is, regardless of whether or not the evidence was overwhelmingly in support of Milligan violating these women's First Amendment rights (no such claims had yet been made), Milligan did not get the benefit of the doubt from Judge Phillips.  Instead, Judge Phillips refused to swear in a public official that had been elected by the people based on the assumption that he had about Milligan's actions.  That's it, that's the end of the story.  His actions were childish and uncalled for.  Then again, so were Milligan's when he went public with this.  Two big kids in the sandlot fighting over a toy, only this toy is the Circuit Courts.

This is ridiculous.  This dude in a robe swore everybody else in, but he couldn't spare a lousy 30 seconds to do it one more time because my boy Milligan pissed him off by lettin' some ladies go that the law said he could let go?  Ladies that were pissed off at HIM for whipping their main man in the election?

Sounds like we've got a real "Forrest Gump" character here.  "I'm not vewy smawt....."  Phillips, don't know ya, son, but you are really full of yourself.  Read your little article, and I think you screwed up.  Just sayin'.  You probably think you popped a cap into Milligan, but you just made yourself look a little light on brain matter.  (Go ahead, Lisa, copy THAT and highlight it!!) 

Tripp got it right below.  Ya referred to a rotten little letter written by a coward who didn't sign it, use that as your excuse for writing, then you copied stuff right outta the letter into your editorial?  Forrest?  Ya hear me? 

You know what else is in the pipeline.  They're all gonna say YOU wrote the anonymous letter or helped.  You told everybody back then you didn't do it cause you didn't want to "foist" Milligan on us, just like Tripp said.  It was in the paper.  Now, you're sayin' you didn't do it cause he already violated the oath?

How in the hell do ya do that when you ain't taken the oath???  Life is like a box of chocolates, ain't it?


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