I’ve stumbled across some very plain and gratifying speech in a 1967 judicial opinion from the Utah Supreme Court. In Dodge v. State, 432 P.2d 640, 641 (Utah 1967), Justice Henriod wrote:
This case, in our opinion, is an unwarranted attempt to abuse justice and judicial procedure, a waste of taxpayers’ money, and one, which if reversed, would permit a four-time felon to repeat and possibly hurt or kill an erstwhile, honorable, law-abiding citizen,–who just might have a couple of constitutional rights too,–one of which is protection of his person, home, wife and children against a predator bent on invading such rights.
Does this language run afoul of our politically correct society? After all, it exposes a convicted felon for what he is and makes a rational prediction about what he would do if he were able to milk some technicality to get back on the street again.
This was not all. Justice Henriod also said this of the felon: Dodge, in a burglary case, was convicted by a jury, and was sentenced, for being an habitual criminal. It appears that he also is an habitual appellant, and a jailhouse lawyer. On the one hand, such a statement really is completely gratuitous. But on the other hand, is it also undeserved? And does our culture, language, or judicial system suffer if judges refrain from any such indulgence out of concerns for political correctness? I tend to think that judges should be allowed to make such statements.
At any rate, Justice Henriod was sued by the honorable Mr. Dodge for defamation based on this statement. See Dodge v. Henriod, 444 P.2d 753 (Utah 1968). Luckily for Justice Henriod, it is a well-established principle of Anglo-American law (since circa 1400) that statements of a judge, juror, litigant, or counselor enjoy an absolute privilege against suits for defamation based on statements made during the course of the judicial proceedings. Otherwise, the societal tendencies of the day (granted, more so now than in 1968) might just find Justice Henriod liable for saying something so mean. . . .