Who Can Perform Weddings?

posted by Judge_Burke @ 14:30 PM
July 25, 2014

In an 11-page opinion  in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana Code §31-11-6-1 violates the First Amendment. The provision specifies who can solemnize a marriage and includes “religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies.” The plaintiffs, a humanist group and a leader of the group deemed a “secular celebrant,” were not allowed to solemnize a marriage unless they obtained clergy credentials or “called themselves a religion.”

Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between “religious and secular beliefs that hold the same place in adherents’ lives,” citing the well-known conscientious objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison. There is not, Easterbrook wrote, an “ability to favor religions over non-theistic groups that have moral stances that are equivalent to theistic ones except for non- belief in God or unwillingness to call themselves religions.”


Public Opinion about the United States Supreme Court

posted by Judge_Burke @ 14:00 PM
July 24, 2014

From the Fair Courts E-alert:  The Brennan Center reports:

A new Gallup poll shows Americans’ overall opinion of the court has remained nearly unchanged over the past few years, with just under half of those surveyed approving of the court’s job. However, partisan approval ratings have recently switched positions. “Republican approval of the Supreme Court is up 21 percentage points since last September, from 30% in 2013 to 51%,” finds Gallup. “Support among Democrats, on the other hand, is down. In September, Democrats were the most approving group, at 58%, while in the current survey their approval is as low as independents’, at 44%.” In The Washington Post, Aaron Blake writes that the flip in opinion is the result of a contentious term in which the Supreme Court “ruled that religious employers should be exempt from providing birth control to their employees and continuing [sic] rolling back campaign finance rules in McCutcheon v. FEC,” sending Democratic approval close to decade-low levels. Blake sees the polling as evidence of a “what have you done for me lately” attitude towards the court, and concludes that “[t]he difference between today and the past is that Americans can’t seem to decide whether they are generally on the same side as the court.”


The following is from a posting on the University of Washington School of Law Law, Technology & Arts Blog:

Nutritional supplement company Ubervita filed a lawsuit this month against John Does, claiming the “unknown defendants have conspired to disrupt Ubervita’s business through a campaign of dirty tricks.” This included, among other things, posting fraudulent negative reviews of the company on Amazon.com. Recently, Chief Judge Marsha Pechman of the Western District of Washington granted Ubervita’s request to subpoena Amazon and Craigslist for the purpose of discovering the defendants’ identities.

A few months ago, we wrote about a similar case from Virginia in which Hadeed Carpet Cleaning subpoenaed Yelp (a business review website) in order to identify seven individuals who had left negative reviews of the business on Yelp. The Virginia Court of Appeals affirmed the trial court’s order that held Yelp in civil contempt for not complying with the subpoena. The Virginia Supreme Court recently accepted review of this case.

The subpoena tactic used by Ubervita and Hadeed has both supporters and detractors. On the one hand, businesses and individuals have a right to be free from tortious and defamatory speech. And given that Section 230 of the Communications Decency Act of 1996 shields websites from liability for third party postings, and that many of these third party posters are anonymous, businesses must resort to filing John Doe lawsuits and subpoenaing websites like Amazon and Yelp. On the other hand, consumers have rights to both privacy and free speech. Public Citizen attorney Paul Allen Levy argues that Judge Pechman’s early discovery order—which allows Ubervita to request, among other things, credit card and bank account information of anonymous reviewers—is overly broad: “[W]hy on earth was that sort of private financial information justified by the need to obtain information permitting service [of a complaint]?”

Many states have laws that are designed to protect law-abiding consumers and critics from frivolous defamation and libel lawsuits, also known as “strategic lawsuits against public participation,” or SLAPPs. (Washington’s anti-SLAPP law is codified in RCW 4.42.500, et seq.) But anti-SLAPP laws typically come into play after defendants have been named. That is not the case here.

In addition to claiming the defendants posted false and defamatory reviews on Amazon, Ubervita alleges that the Does fraudulently impersonated Ubervita in their communications with Amazon, and that they manipulated Amazon’s ordering system into showing that Ubervita’s products were not available for purchase. Ubervita believes the unknown defendants are associated with a competitor.


The full story may be found here.




Judicial Independence from Fair Courts E-Alert

posted by Judge_Burke @ 14:21 PM
July 21, 2014

The Fair Courts E Alert reports:

Former chief justice of the Massachusetts Supreme Judicial Court and author of the first state supreme court decision legalizing same-sex marriage, Margaret H. Marshall, says that she did not anticipate the resulting individualized attention and backlash. In an interview with The Washington Post, Justice Marshall stated, “It was surprising and painful, for two reasons. First is I have such a high regard for the American democratic system. I came as an immigrant [from South Africa]. The rule of law is the foundation to our success as a nation, and second, because you don’t expect that if you are a judge.”

Writing for Arkansas Business, Brian H. Ratcliff, president-elect of the Arkansas Bar Association, questions whether a similar decision from the Arkansas Supreme Court on the constitutionality of the state’s gay marriage ban, an issue now before the court, might “set off a firestorm of challenges by political and special interest groups to ‘remove’ the judges responsible?” Ratcliff urges Arkansas to “work to preserve its judicial independence or glove up for the constant battle of the branches that will divide our state as we have never seen before.” Marshall maintains that there is a clear line between her role as a justice interpreting the state constitution and her views as an individual. “I don’t mean to be trivial in my response, but I say words one way or other to say it wasn’t me personally. It was the Constitution and the words of the Constitution.”


California Joins States Ruling Juveniles Must Be Treated Differently

posted by Judge_Burke @ 14:01 PM
July 18, 2014

As reported in this Los Angeles Times article, headlined “Ruling could reduce life-without-parole terms for juvenile offenders,” the California Supreme Court issued a significant post-Miller ruling about juvenile murder sentencing in the state.  Here are the basics:

In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants’ youth before sentencing.

Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances.  The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.

The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile’s immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.

In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle’s wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.

“Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence,” wrote Justice Goodwin Liu for the court. “The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society.”

Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 “Crime Victims Justice Reform Act.” State appeals’ courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.

But Monday’s decision said the lower courts had erred in the interpretation of the law. “Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances,” Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether “the initiative was intended to make life without parole the presumptive sentence.” The court concluded it was not.

Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court’s ruling came under a law that was different from California’s and involved mandatory lifetime sentences for much younger children.

Attorneys in the case said it was uncertain whether Monday’s decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.


The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.


Judges Should Write With Care

posted by Judge_Burke @ 17:30 PM
July 17, 2014

Bryan Garner’s June ABA Journal column reminds lawyers to write with care. Two of his suggestions are to avoid long words like subsequently in favor of shorter ones like later and to conform punctuation to The Chicago Manual of Style.

Such careful writing, Garner says, can lead to a win in the courtroom. For a brush-up on style, he recommends reading Theodore Bernstein’s The Careful Writer and articles in the Wall Street Journal and The Atlantic. The same can be said for judges!!!


The United States Supreme Court declined to hear an appeal asking whether the Second Amendment guarantees a right to carry guns in public for self-defense.  As is their custom the justices gave no reasons for their decision and simply refused to hear the appeal.

The case would have required the court to address a question it left open in 2008 in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep guns for self-defense in the home.  The new case, Drake v. Jerijian, No. 13-827, concerned whether and how governments may restrict Second Amendment rights outside the home.

The case involved a New Jersey law that requires people seeking licenses to carry guns in public to demonstrate a “justifiable need.” In practice, according to the law’s challengers, “few ordinary people can hope to obtain a New Jersey handgun carry permit.”



How Broadly Should We Think of the Eighth Amendment

posted by Judge_Burke @ 13:59 PM
July 16, 2014

Samuel Weiss has posted Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 49, No. 569, 2014) on SSRN.

Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment. Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.


An Idea Whose Time Has Come?

posted by Judge_Burke @ 14:00 PM
July 15, 2014

Many of the courts in the United States are funded locally. Some are limited jurisdiction traffic courts and some have broader authority. Particularly when there are tight economic times there is pressure to look at the “fine revenue” that is generated by these courts.

In Ward v. Village of Monroeville, 93 SCt. 80 (1972), Justice Brennan wrote an opinion for the United States Supreme Court which held where the mayor before whom the petitioner was compelled to stand trial for traffic offenses was responsible for village finances, and the mayor’s court through fines, forfeitures, costs and fees, provided a substantial portion of the village funds, the petitioner was denied a trial before a disinterested and impartial judicial officer as guaranteed by the due process clause.

Whether that opinion brought complete closure to the practice is debatable. Now, a bill currently pending before the New Jersey Assembly would effectively ban municipal government officials from pressing Municipal Court Judges on the subject of how much revenue the courts/judges are producing.

The 539 Municipal Courts in New Jersey handle the state’s traffic/violation offenses along with minor criminal matters and are generally appointed by the municipal government for three year terms.

Under AB 2638 of 2014

No local government officer or employee shall discuss with any municipal court judge or any candidate for a municipal court judgeship pursuant to N.J.S.2B:12-4 the local government agency’s need for or reliance upon municipal court revenues.

AB 2638 has been assigned to the Assembly Judiciary Committee.



Rethinking the Role of Expectation in Fourth Amendment Law

posted by Judge_Burke @ 19:39 PM
July 14, 2014

Katz Has Only One Step: The Irrelevance of Subjective Expectations

Orin S. Kerr

George Washington University – Law School

June 11, 2014

University of Chicago Law Review, Forthcoming



This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.

The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.