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Omaha Magazine

Individual Rights

Mar 02, 2015 08:00AM ● By Rachel Joy
Originally published in March/April 2015 Omaha Magazine

The following anecdote explains much about retiring federal judge Joe Bataillon, but, more importantly, it is perhaps the greatest Creighton basketball love story ever told.

Bataillon left the U.S. Federal Courthouse early one spring day a few years ago to get home in time to watch Creighton play in an NCAA tournament game. When he opened the door to his back porch, he looked down and saw a small rectangular metal box. It was not his. There was no message on the box. Considering some of the killers he has sent to prison, there was good reason to fear it was a bomb.His conundrum: If he called the U.S. Marshal’s office, he knew he would be forced to leave his house.

His brother, Douglas County District Court Judge Pete Bataillon, relates the rest of the story: “So Joe just goes inside and watches the game and only calls when the game is over to see if that’s actually a bomb on his porch,” Pete says. “The marshals come, make him leave, blow the thing up, and realize it’s an outdoor utensil set. A few weeks earlier he had presided over a wedding and the people dropped by with a present. They probably should have left a note.”

“The marshals were not at all happy that he put his life at risk for a basketball game,” his brother says.

So Joe Bataillon, graduate of Nebraska City Lourdes High School and Creighton Law School, is a big Bluejays fan. Got it. (He actually was the equipment manager for the basketball team in college. “We were low-budget back then. The guys had to really blow out their [Converse] Chuck Taylors before I could give them new ones.”). But there’s more there. After 17 years on the highest bench in Nebraska, ruling on everything from misdemeanors on tribal lands to brutal murders involving drug kingpins to the constitutionality of Nebraska laws, he is obviously a man courageous and seasoned enough to be walking calm in a world in which some very bad people might prefer him dead. And despite the gravity of his rulings on a massive number of cases (Judges of Nebraska’s federal district court have the eighth-highest caseload out of the nation’s 94 federal districts.), he’s still known in eastern Nebraska for giving up his limited free time to preside over wedding ceremonies.

Retired U.S. Sen. Bob Kerrey, who advocated for Bataillon’s nomination process in the mid-1990s, after Bataillon’s distinguished career with the county and in private practice, offers insight: “Joe is a terrific federal judge—he has been a very strong protector of individual rights,” Kerrey says. “He’s just a special guy.”

“And unlike me,” Kerrey jokes(?), “he’s extremely likable to boot.”

Be that as it may, Bataillon’s defining characteristic, his brother agrees, is that paramount concern for the rights of individuals when they are squared off against the government and the majority. Bataillon says he would be thrilled if that is, in fact, his legacy.

“You can never lose sight of the fact that these are real people and that you’re impacting their lives profoundly,” he says. “You have a duty to everyone who you’re going to impact to work your hardest to see the whole picture.”

Bataillon was raised in an environment sated in the concept of social justice. Amid his parent’s constant involvement in their community, his father founded and led Nebraska City’s volunteer rescue squad, a sometimes grisly and difficult effort to more quickly get life-saving help to people in crisis. “Caring for those less fortunate” is a foundational ideal of a Jesuit education, he adds. “It’s just an idea that’s always been there.” For one, throughout his career, Bataillon has been a key figure in building treatment and job programs for people trying to right and rebuild their lives after convictions.

Bataillon’s most controversial decision came nine years ago, when, in Citizens for Equal Protection v. Bruning, he ruled unconstitutional Nebraska’s voter-approved amendment to the state constitution that read “only marriage between a man and a woman shall be valid or recognized in Nebraska.” His ruling for individual rights was overturned by a higher court, but his groundbreaking arguments can be heard in debates on the issue elsewhere in the country.

Bataillon still is impacting the argument over gay marriage. In late January, he ruled not to delay a lawsuit challenging Nebraska’s gay marriage ban while the U.S. Supreme Court considers the issue on the national level.

Amid a slew of major decisions, one other case stands out. It got Bataillon a lot of snickering press reports, but the fundamentals of the ruling speak to his own fundamental beliefs.

In 2013, Bataillon ruled that the Nebraska State Patrol needed to return more than $1 million confiscated from a woman in a traffic stop in 2012. The cops suspected it was drug money. Bataillon believed the evidence suggested the woman’s story was true.

In fact, Tara Mishra, 33, had been saving the money—perhaps a dollar at a time—over 15 years working as a stripper. Mishra was driving from California to New Jersey with her life savings to buy a nightclub. She wanted a new life, and her story checked out.

““The government failed to show a substantial connection between drugs and the money,” Bataillon wrote in his opinion.

“He understands the government has a tremendous amount of power,” Kerrey says. “It can be unpopular to make some of the rulings he has made, but when individual rights are being abridged, Joe has been there to provide the balance.”

While Bataillon retired from “active service” in the fall, he will continue in a semi-retired role as a senior federal judge. He’ll continue his very active role in national federal judiciary issues. What is quickly becoming clear is that there won’t be much retiring in his “retirement.”

“I’m not finished with this work by any means,” he says.


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