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Archive for the ‘On Judges’ Category

On Monday, the U.S. Supreme Court unanimously ruled that government, in this instance, the U.S. Patent and Trademark Office (PTO) may not refuse to register potentially offensive names under a law against registering trademarks likely to disparage people or groups.

The case, Matal v. Tam, strengthens the case against state bar associations seeking to further trample lawyer First Amendment rights via ABA Model Rule 8.4(g). For more about the ABA’s misguided decision “to discipline lawyers who engage in politically incorrect speech,” see “The ABA’s Control Over What Lawyers Say Around the Water Cooler.”

The Nevada Bar, for one, has petitioned its state supreme court to adopt a new lawyer speech code to punish Nevada attorneys for what newly weaponized lawyer disciplinary authorities subjectively deem “derogatory,” “demeaning,” or “harmful” speech“related to the practice of law.” Matal v. Tam renders the viewpoint discrimination enshrined by such a proposed rule presumptively unconstitutional.

Nonetheless, how much ultimate weight state supreme courts give to Matal v. Tam on such matters will depend on the jurists’ ability to temper the agenda-driven viewpoint of lawyers as sui generis ‘special snowflakes.’ Under this rubric, lawyers are expected to unreservedly pay for their ‘privilege’ with constraints on their Constitutional rights not visited upon any other profession.

Whether as agents of the state, i.e., ‘officers of the court,’ or as “public citizens” as the ABA Report describes them, lawyers are expected to tolerate the continued erosion of their rights, especially with respect to the First Amendment. See here, here, here and here and additionally, The Intersection of Free Speech and the Legal Profession; Constraints on Lawyers’ First Amendment Rights. It’s way past time for lawyers to say “Enough!”

Matal v. Tam.

In 2011, Simon Tam, the founding member of the Asian-American dance-rock band, The Slants, tried to register the band’s name with the PTO. His application was denied based on a federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

Tam characterized his trademark registration as an attempt to reclaim a slur and use it as “a badge of pride.” Associate Justice Samuel Alito wrote, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Student free speech.

Writing today at “The Legal Watchdog,” notable Wisconsin defense attorney Michael Cicchini trenchantly points out at “Free speech: A message for public universities (and their students) how Matal v. Tam should help curb free speech constraints currently the rage among do-gooding bureaucrats at public universities. Quoting from the opinion, Cicchini illustrates how There is no hate-speech exception to the First Amendment;”  “You can’t suppress speech you don’t agree with;” and “You should be thankful that you can’t suppress speech you don’t agree with.” His entire post bears reading.

Finally, some have inanely suggested the case is one for folks on the Right to applaud, e.g., “Today in Conservative Media: Applause for a Free Speech Victory at the Supreme Court.” To which, I rejoin, when did the U.S. Constitution and specifically, our fundamental rights become the exclusive purview or calling of one side of the political spectrum?

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Photo credits: Seal of the U.S. Supreme Court, by DonkeyHotey at Flickr Attribution; “sad emoticon,” by shamaasa  at Flickr Attribution; “Resusci-Annie’s Children Remark On the Effectiveness of the First Amendment,” by John Scalzi at Flickr Attribution.

 

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Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.

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Last July in Courts and Transparency, I discussed the public records case of Les Veskrna, a Lincoln, Nebraska family doctor and executive director of the Children’s Rights Council of Iowa and Nebraska. Veskrna had requested copies or inspection of the court’s continuing education records pertaining to the training judges receive in child custody and parenting time matters from the Nebraska State Court Administrator. After his request was denied, he sued.

A district court earlier ruled against the court administrator and ordered that under Nebraska public records law, the requested Judicial Branch Education (JBE) records be turned over to Veskrna. The court administrator promptly appealed to the Nebraska Supreme Court.

Yesterday, the Nebraska high court unanimously affirmed the lower court. It granted Veskrna a sweeping win and ordered access to the requested records, save for a redacted email. The Court also awarded him costs and attorney fees. Read State Ex Re. Veskrna v. Steel 296 Neb. 581 here and also see Supreme Court: Judges’ training documents are public record and Nebraska Supreme Court sets precedent by ruling that some judicial records are public.

No undue interference.

The Nebraska Supreme Court said the under state public records statutes, disclosing the requested records “does not unduly interfere with any essential function of the judicial branch.” 

The Court Administrator, Corey Steel, had argued that the 12 records requested by Veskrna were not public records. Steel also asserted disclosure would violate separation of powers were the Court “to accede to any statutory scheme that mandates the disclosure of JBE records.” The Court, however, explained there was no interference.

“We agree that whether or not we have adopted any court rules concerning the confidentiality of our JBE records, the public records statutes do not trump the constitutional imperative that one branch of government may not unduly interfere with the ability of another branch to perform its essential functions. We simply find no undue interference in disclosing the records at issue.”

One part of the decision drew my immediate interest. It should serve as prudent admonition for other states. Often enough, in my opinion, especially in school funding and state employee pension reform cases, there has been an unfortunate tendency for courts to stretch the bounds of permissible interference on another branch’s “essential functions.” See, for example, How far will the state Supreme Court go on McCleary? and Guinn v. Legislature of State of Nevada and Kansas Supreme Court rules school funding inadequate and Court’s pension ruling could cost Arizona taxpayers millions.

Courts are supposed to interpret not make law. Interests should be balanced and limits assessed with caution.

“It is for the judiciary to say when the Legislature has gone beyond its constitutional powers by enacting a law that invades the province of the judiciary. But the judiciary should “‘“proceed cautiously”’ in relying on ‘inherent authority’” and must give “‘due consideration for equally important executive and legislative functions.’” Determining the constitutional limits of the Legislature’s plenary lawmaking authority in the context of the separation of powers between the judicial function and power and the legislative one is a difficult endeavor that must proceed on a case-by-case basis.” [internal citations omitted]

https://upload.wikimedia.org/wikipedia/commons/thumb/2/21/NIXONcampaigns.jpg/320px-NIXONcampaigns.jpg

Richard Nixon, Wikimedia Commons, public domain.

Transparency as virtue.

The Nebraska Supreme Court also cited with approval United States v. Nixon. For those who skipped U.S. history class, Richard Nixon was the 37th President of the United States and had claimed executive privilege on national security grounds to block release of White House audiotapes as part of a cover-up related to the Watergate scandal. The U.S. Supreme Court ruled 8-0 against him although it did recognize executive privilege as a legitimate power of the president — but not an absolute one. It rejected overly broad claims of executive privilege to shield records from public disclosure laws.

In this context, the Nebraska high court properly said “the ultimate inquiry when faced with the overlapping exercise of constitutionally delegated powers is the extent to which one branch is prevented from accomplishing its constitutionally assigned functions, balanced against the other branch’s need to promote the objectives within its constitutional authority.”  This is a key consideration.

But the other important principle has to be the respect accorded public access and transparency. “We have always supported transparency and the search for truth,” the Court declared. This must remain a cherished virtue even when the legal establishment habitually inclines toward reticence — if not obstinate opacity.

 

 

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Clarence Thomas - Caricature | by DonkeyHoteyU.S. Supreme Court Justice Clarence Thomas told a meeting of lawyers last week that “unchecked judicial power” means “we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution.” To his point, the role of courts is to interpret constitutions not to make or enforce law. (I won’t repeat that umpire analogy).

Likewise among the states, their supreme courts are supposed to interpret and rule on the constitutionality of statutes not make law from the bench. But when things don’t go precisely like they’re supposed to, you notice.

Which brings me to what happened in Arizona last week. It was the state supreme court decision in the public employee pension case of Honorable Phillip Hall Et Al., v. Elected Officials Retirement Plan/State of Arizona.

Without diving into the weeds, Hall was about retirement benefits and contributions and whether they’re part of an ’employment contract.’ It was also about the Gift Clause in the Arizona Constitution. For an accessibly excellent commentary, see Arizona Republic Columnist Robert Robb’s aptly titled “Pension reform is now impossible in Arizona.”

Yipee! Project 365(3) Day 250 | by Keith Williamson

Pension reform matters because according to a 2013 report by the independent financial research group, Morningstar, most states’ pension plans continue to be underfunded below the 80 percent level considered healthy. As summarized by Ballotpedia, “Decreased funding and increasing liabilities since the 2008 recession continued to put pressure on local and state budgets, in some cases leading to bankruptcy. Higher pension costs can have the following consequences:

  • higher taxes
  • less intergovernmental aid for services
  • lower credit ratings
  • higher interest rates on state borrowing”

I agree completely with Justice Clint Bolick’s dissent in the Hall case. It was well-reasoned and persuasively argued. Most of all, it was refreshingly candid. Reading the majority opinion, you have the sense they didn’t much care for the demurrer.

How bracing, though, to hear a dissenting voice on this state’s high court — so welcome, so invigorating, so rare. Four of the five sitting justices recused themselves because the case would have had a bearing on their own retirement plans. But because Justice Bolick joined the high court after the law was changed, he had no such conflict nor did the four guest justices also deliberating.

Grisham-like legal fiction.

J.C. Hallman 10.06.09 | by kellywritershouse

Bolstered by a sharp wit, Justice Bolick’s keen analysis evoked nods and smiles from the first page. He likened the Court’s 51-year old finding that at-will state employees actually had a contract with the state to “a work of legal fiction to which the likes of John Grisham could only aspire.”

Equally remarkable, too, was that across its 21 pages, the majority failed to mention taxpayers — the poor slobs who’ll face higher taxes or cuts in services to pay promised pension benefits. To be fair, the majority did reference “the State” but in doing so, seemed to gloss over taxpayers who are ultimately the ones saddled with funding shortfalls in the State’s largesse. Indeed, Justice Bolick appeared to chide the majority’s rather cavalier observation that the retirement plan’s “actuarial soundness is within the Legislature’s control” — because it can always hike taxes and court fees — “apparently ad infinitum.”

Judges Gavel“Of the judges, by the judges, and for the judges.”

But the money paragraphs were these from Justice Bolick:
“If  ever  there were a  case in  which  we  should  seriously indulge  the  presumption  of  statutory constitutionality,  this  is  it.   The majority winks  at  that rule,  then  utterly fails  to apply it.   It  repeatedly invokes  the  mantle  of  judicial restraint  while  casually  invalidating  a statute designed  to  preserve  the financial stability  of  a  public  employee pension  plan,  a  purpose  so  important  that  the  voters  made  it  part  of  our state’s organic law.
 
 “The  majority  opinion  portends  a  huge  financial windfall  for the  class  members,  a  burden  the  taxpayers  will  shoulder.   Under  such circumstances,  we  should  act  with  great  restraint,  lest  the  rule  of  law be undermined by  a  public  perception  that  this  decision  is  of  the  judges,  by the  judges,  and  for  the  judges.   On  this  important issue,  the  majority exhibits  no such  restraint,  and we  therefore  respectfully  dissent.”

Outcome-based jurisprudence.

If there’s one thing you learn in law school is that courts sometimes back into their decisions. Adopting what’s called outcome-based jurisprudence, they first decide what the outcome of a case should be and then work backwards to find the reasoning that reaches the desired conclusion. A criticism of this approach was made in March when a split U.S. Supreme Court left mandatory union dues in place in Friedrichs v. California Teachers Association.

In my opinion, the Arizona Supreme Court found the outcome it wanted, which was to shift policy choice burdens away from active employee retirement plan members and place them instead on taxpayers “by freezing employee contribution rates in perpetuity” to quote Justice Bolick. Indeed, he referred to some of the majority’s rationale as “pick-and-choose jurisprudence.”

https://cdn.morguefile.com/imageData/public/files/p/pippalou/03/l/1363479372ipbgy.jpgIn Nevada, I remember its version of “pick-and-choose.” It was the 2003 Nevada Supreme Court case of Guinn v. Legislature, which came about when the Nevada Legislature deadlocked over the state budget. Nevada’s late Governor Kenny Guinn petitioned the Nevada Supreme Court for an Order declaring the Legislature in violation of the Nevada Constitution. More to the point, he wanted the Court to compel the legislature to fulfill its constitutional duty to approve a balanced budget; to ignore the 2/3rd super majority Nevada Constitutional requirement to raise taxes; and to appropriate funds for public education during that fiscal period.

A child's primer of natural history (1899) | by CircaSassyBut there was a fly in the apothecary’s ointment. Notwithstanding the Court’s decision, the Nevada Constitution at Art 4. Sec. 18(2) enacted in 1996 by voter initiative was not to be ignored. The voters and taxpayers enshrined in their state constitution the 2/3 super majority tax hike requirement to make raising taxes difficult. And that was the rub.

It’s clear the Court had the outcome in mind to fund education — a meritorious end to be sure. But to do so, it had to find justifiable means. So it parsed the super majority requirement to pirouette over the voter imposed 2/3 majority prerequisite. It said the requirement was “procedural” while the affirmative constitutional obligation to fund public education was “substantive.”

And so procedural rights were thrown under the bus when the Court decided the substantive right was more important even as Nevada’s Constitution Article 11, Sec. 6 only required that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, . . . .”

To its credit, Nevada’s high court reversed itself as part of a subsequent 2006 opinion.

But don’t expect a similar reconsideration in Arizona.

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Credits: Clarence Thomas – caricature by DonkeyHotey at Flickr Creative Commons attribution license; Yippee, by Keith Williamson at Flickr Creative Commons attribution license; J.C. Hallman, by kellywritershouse at Flickr Creative Commons attribution license; A child’s primer of natural history, by CircaSassy at Flickr Creative Commons attribution license.

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Courtroom 93Illinois lawyer Rhonda Crawford used to be a law clerk for the Chief Judge of the Circuit Court of Cook County — up until she was fired in August for presiding in court wearing a judge’s robe. She did it while real life Judge Valarie Turner favorably looked on. Crawford even ruled in three traffic cases from the bench.

In denying the allegations that she wrongfully impersonated a judge, Crawford said she never claimed to be a judge. Maybe it’s just me but you might wonder if wearing a black robe and ensconcing yourself on the bench might not be just a tad misleading to someone appearing in that courtroom for a hearing? Nonetheless, Crawford went on to explain she was only “shadowing various judges . . . to see what they did and learn about the process of being a judge.”  

Moreover, since Crawford is running for elected judicial office this November her lawyer said the whole thing’s “politically motivated.” Just the same, the traffic cases were subsequently ordered reheard. And her boss, Chief Judge Timothy C. Evans, disciplined Crawford by job termination and Judge Turner by temporary suspension.

Here comes the judge — not.

Politics Law & Finance 43But despite having lost her $57,000 per year clerk’s job, things may still be looking up for Crawford. She won the primary election in March for Chicago’s 1st Judicial Subcircuit and is running unopposed. So she’s likely to prevail and thereby acquire an even better gig, one that more than triples her former law clerk’s salary with annual pay of $188,000 for a 4-year term.

Dismayed by this turn of events, this past Monday, the Chicago Tribune editorialized, “Keep the fake judge off the bench.” The newspaper’s editorial board asked voters to pay attention and write-in Maryam Ahmad rather than mark the box for Crawford.

Discipline’s creaky wheels.

Earlier this month, the Illinois Attorney Regulation and Disciplinary Commission (ARDC) also filed a three count complaint against Crawford for “dishonesty as a result of handling cases on a judge’s call while dressed in judicial robes and seated on the judge’s chair behind the bench.” Other counts included, “Criminal conduct of official misconduct and false personation of public officer” and False statements in a disciplinary investigation.”

Of course if Crawford wins the election, the disciplinary inquiry may change. The matter of the now sitting judge may instead end up before the Illinois Judicial Inquiry Board not the ARDC.

However, according to Injustice Watch, a non-partisan, non-profit journalism organization “that conducts in-depth research exposing institutional failures that obstruct justice and equality,” that process could be a protracted one. Based on its own investigation and as posted on its website, that organization concludes, “It commonly takes years to act against judges who violate the Illinois Code of Judicial Conduct, and the punishment seldom is more than a public reprimand.”

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“They should go get back on a ship and go back to Africa” a Florida judge allegedly observed about African-Americans to a Staff Attorney. She was reporting on the status of an order at the time. The upshot is the Hon. Mark Hulsey III, Circuit Court Judge for Florida’s 4th Judicial Circuit, presently finds himself under judicial ethics inquiry by the Florida Judicial Qualifications Commission.

A majority vote of the Commission determined there was probable cause to investigate allegations of discourtesy and condescension to staff; inappropriate language, including beratement of Staff Attorneys and purported violations of 14 canons of the Florida Code of Judicial Conduct.

Entitled to the presumption of innocence, Judge Hulsey denies all the allegations. Up for reelection, the judge also says the charges are politically motivated. Meantime, he’s been reassigned to probate court. See “Jacksonville circuit judge reassigned after complaint of racial comments, foul language” at the Florida Times-Union.

Too many expletives to count.

With respect to inappropriate language, readers with tender sensibilities might want to skip this second news item concerning the crude, obscene exchange between Georgia Superior Court Judge Bryant Durham and defendant Denver Fenton Allen. 

The back-and-forth between the judge and the defendant escalated into exchanges about parts of the anatomy, sex, threats and homophobia. The court transcript shared by law blogger Keith Lee is long, lurid and lewd. In its June 24, 2016 report, the Washington Post referred to the courtroom incident as “an extraordinary display of vulgarity — between a defendant and judge.”  See ‘You’ll find out how nasty I really am’: A judge’s seething response to a hostile defendant”

Teaching “courtroom etiquette.”

Meanwhile, in Nevada, a judge’s attempt to teach “courtroom etiquette” lost any subtlety of meaning when ‘the lesson’ entailed handcuffing Clark County public defender Zohra Bakhtary at a sentencing hearing for a defendant charged with a probation violation.

Although the judge in question lost reelection last month, the now former Las Vegas, NV Justice of the Peace Conrad Hafen remains under investigation for his alleged unorthodox approach to cultivating courtly manners. See the transcript and courtroom video here.

According to The Las Vegas Review-Journal, the 150-member Nevada Attorneys for Criminal Justice filed a complaint with the Nevada Commission on Judicial Discipline seeking sanctions. The complaint further mentioned two other cases besides that of the handcuffed public defender that they claimed demonstrated Judge Hafen’s “complete disregard for the law.” SeeDefense lawyers say Las Vegas judge ‘was wrong’ to handcuff attorney.”

CCDU Open LetterAnd also weighing in was the Clark County Defenders Union via open letter. The letter stated, in part,

“Every person accused of a crime has a constitutional right to have an attorney speak on his behalf. Public defenders exclusively represent people with little or no money: the poor. Judge Hafen silenced an attorney who was merely attempting to speak on her client’s behalf.

He violated one of our most sacred, fundamental, and constitutionally protected rights. Judge Hafen claims he handcuffed our colleague to “teach the lawyer about courtroom etiquette.” Handcuffing an attorney who is merely doing her job to teach her a lesson is simply improper and has never been done in the history of Nevada. This misguided “lesson” runs contrary to the fundamental right to counsel. That right entitles Americans to have an attorney at their side, speaking on their behalf, especially when they are facing jail. We will continue to take our lessons from the Constitution and our solemn Oath of Attorney.”

More shackled speech.

Two close-in-time occurrences don’t make a trend. But just the same, in Ohio there was another incident of shackled attorney speech. Criminal defense lawyer Andrea Burton was handcuffed, removed from an Ohio courtroom, and sentenced to 5 days in jail for refusing Youngstown Municipal Court Judge Robert Milich’s order that she remove a Black Lives Matter pin she wore to court.

Courtrooms are supposed to be viewpoint neutral according to Judge Milich who gave Burton several chances to comply before issuing his contempt order. “A judge doesn’t support either side,” Judge Milich said. “A judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law.”

For her part, Burton explained, “He indicated to me he didn’t know if I was trying to seek attention from the news or whatever the case was, but that legally I wasn’t allowed to wear it and I deferred and said that I’m respecting my First Amendment right. That I’m not neutral in injustice, and to remain neutral becomes an accomplice to oppression.” She  is appealing her sentence. See “Youngstown attorney arrested for wearing ‘Black Lives Matter’ button in court.”

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Credits: Photos via Morguefile license, no attribution required.

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https://upload.wikimedia.org/wikipedia/commons/0/05/ErieRingBlindman%27sBluff.gifIf you’re in Nebraska family court, you might wonder why child custody and parenting time outcomes are so seemingly different throughout your state. But if you’re a shared parenting advocate like Les Veskrna, you want answers. Veskrna is a Lincoln family physician and executive director of the Children’s Rights Council of Iowa and Nebraska.

Hypothesizing that training might account for the dissimilar results, Veskrna asked Nebraska State Court Administrator Corey Steel for information about the training judges receive on custody and parenting matters. Specifically, Veskrna requested access to related judicial continuing education documents. “Looking at disparate outcomes for child custody and parenting time throughout Nebraska, it appears judicial practices are not consistent with the literature,” Veskrna explained. And he added, “A growing body of research suggests that children in divorce do best emotionally and in school when they spend meaningful time with both parents.”

Steel, however, denied the request. He contended that training information wasn’t subject to disclosure under state public records law. Moreover, he said that the records were entwined with a judge’s deliberative process and therefore, privileged. Veskrna disagreed. The Nebraska Constitution at I-13 says that “All courts must be open.” And the explicit purpose of Nebraska’s Public Records Statutes is to “guarantee that public government records are public.” Under the law, Nebraskans have “the right to obtain access to, and copies of, public records in the custody of public agencies in the state.” So in 2015, Veskrna went to court to seek an order that Steel turn over those records.

In January of this year, a Lancaster County, Nebraska District Court agreed with Veskrna and ordered the Nebraska Judicial Branch to release training documents disclosing how judges learn to adjudicate child custody disputes.

The First Amendment and public access.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/9b/%E4%BF%9D%E9%9A%9C%E8%A8%80%E8%AB%96%E8%87%AA%E7%94%B1%E7%9A%84%E7%BE%8E%E5%9C%8B%E6%86%B2%E6%B3%95%E7%AC%AC%E4%B8%80%E4%BF%AE%E6%AD%A3%E6%A1%88%E7%B4%80%E5%BF%B5%E7%A2%91_%22The_First_Amendment_to_The_U.S._Constitution%22_Monument_in_Independence_National_Historic_Park_in_Philadelphia%2C_Pennsylvania%2C.jpg/320px-thumbnail.jpg

Admittedly, the First Amendment does not expressly address public access. It fosters “individual self-expression.” But at the same time, it affords “the public access to discussion, debate, and the dissemination of information and ideas.” The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 (1978).

Arizona transparency.

Presume an interested Arizonan wants to emulate Les Veskrna and ask for judicial continuing education training records on custody and parenting matters or on any other area of law such as, for instance, handling capital cases. In Arizona, that person would discover that Evaluation materials and records generated by participants in judicial education programs such as test scores, educational assessments, practical exercise worksheets, and similar materials are closed” in accord with Arizona Supreme Court Rule 123, (13) Judicial Branch Training Materials and Records. Does this rule mean that information about how and what training judges acquire directly related to their tax-payer paid work is closed to public access? It depends — on the Court.

Politics Law & Finance 43The Court has its own public access rules to govern the maintenance and disclosure of judicial records. Arizona Supreme Court Rule 123, “Access to the Judicial Records of the State of Arizona,” controls — not Arizona Public Records Law. See London v. Broderick and Arpaio v. Davis.

And no matter that Arizona’s Constitution at Article II, Declaration of Rights, makes a similar — but not quite the same — declaration as Nebraska’s Constitution about court openness. Justice in all cases shall be administered openly,” says Section 11.

The plain meaning of a “public body” under Arizona Public Records Law should deem that state courts statutorily meet the definition as “any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4a/Freedom_of_Information_Act_%28FOIA%29_Document_Processing_%2814189201882%29.jpg/387px-Freedom_of_Information_Act_%28FOIA%29_Document_Processing_%2814189201882%29.jpg

But in Arizona, the Court decides public access for itself and it decided to exempt itself from state public records law. Not that this is unusual. The view of state supreme courts elsewhere aligns with Arizona. The state supreme courts in Washington and Nevada, for example, have likewise expansively interpreted their state constitutions to declare state public records laws off-limits to their courts.

In City of Federal Way v. David Koenig, 167 Wn.2d 341(Washington 2009), the Washington Supreme Court held the state public records act does not apply to the judiciary and judicial records.

And in Nevada in Civil Rights for Seniors v. Admin. Office of the Courts, 129 Nev. Adv. Op. 80 (Nevada 2013), the Nevada Supreme Court held that considering the judiciary’s authority to manage its own affairs, it would limit the scope of the public’s access to the records maintained by the Administration of the Courts (AOC).

Unfortunately, despite constitutional, statutory and common law presumptions favoring public access, the legal establishment inclines toward reticence — if not outright opacity. Just a few months ago, for example, UCLA Professor Richard Sander’s decade-long fight to obtain test score, grade and bar exam passage information from the California State Bar was finally allowed to proceed to trial over the Bar’s ongoing objections.

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Credits: Tweed and Erie Rings play blind man’s bluff with justice, Harper’s Weekly, at Wikimedia Commons, public domain; FOIA via Fort George G. Meade Public Affairs Office, Constitution monument, posted to Flickr by euthman, Wikimedia Commons, attribution generic license.

 

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