What
is this about a ‘bogus opinion'?
In the Sept. 26 issue of the Sunday Gazette-Mail,
Justice Starcher describes the court's March 2
opinion in the Arbaugh case, in which he joined with
Justices Warren McGraw and Joseph Albright, as a "bogus opinion." He
proclaims that "it is absolutely incorrect to say that we ordered that
young man [Arbaugh] to be placed as a janitor in a
school"; and he declares that "the justices merely wanted [the circuit
judge] to reconsider Arbaugh's punishment."
Starcher has made a
serious charge against someone -- and that someone appears to be Justice Robin
Davis, who Starcher says
wrote the opinion. A "bogus" opinion, as a matter of simple
vocabulary, is a fake or a counterfeit that has been forged or made in imitation
of an authentic opinion with intent to mislead.
Is Starcher telling
us that
If the March 2 opinion is "bogus," it
is a nullity and has no legal validity. Does Starcher
really mean that?
If he does, his present position conflicts with
what he, McGraw and Albright have said in concurring opinions of March 5 and
March 31. There, they repeatedly said that they agreed with the
"result" of the March 2 opinion, but disassociated themselves from its
rationale.
What was that "result"?
Let the opinion speak for itself: "we
[Justices Starcher, McGraw and Albright] direct the
circuit court to grant Mr. Arbaugh probation to
follow the YSS rehabilitation plan."
And what was the "YSS rehabilitation
plan"?
Again, let the March 2 opinion speak for itself:
"it would consist of removing [Arbaugh] from
the Eastern Panhandle to the Northern Panhandle, [there to] be employed as a
janitor at a local Catholic high school . . . under the supervision of Brother
Dan O'Riordian."
Accordingly, it is incredible, in my opinion, for
Starcher to declare, as he did in the Sunday
Gazette-Mail article, that "it is absolutely incorrect to say that we
[Justices Starcher, McGraw and Albright] ordered
that young man [Arbaugh] to be placed as a janitor
in a school," and to claim that "the justices merely wanted [the
circuit court judge] to reconsider Arbaugh's
punishment."
If, instead of their giving the circuit court
judge a clear command to grant Arbaugh a second
probation, the three justices merely wanted the judge "to reconsider Arbaugh's
punishment," they should have said so in their March 2 opinion.
But they didn't say it there and they have never
said it in any official pronouncement or action of the Court.
I offer the following for assessment and
discussion.
In my view, Justices Starcher,
McGraw and Albright, in their actions in the Arbaugh
case, have gone a long way towards diminishing the legitimacy of the court.
Those justices have failed to speak and act in
ways that allow the public to accept their actions at face value and to believe
the claims they have made for those actions. Those justices have made it
difficult, if not impossible, for the public to believe they have acted in a
fashion that is truly grounded in legal principles.
Instead, they appear to have extemporized and
compromised, seeking an outcome which is to their liking. And, having done so,
they have then shown the temerity to deny that their opinion says what it says
and to claim that they have been so badly misunderstood.
The public deserves better from its judges.
McElwee is a