Discrimination Not Permitted

posted by Judge_Burke @ 14:15 PM
March 25, 2015

A Washington state florist who refused to provide flower arrangements for a gay wedding “because of [her] relationship with Jesus” violated the state’s anti-discrimination and consumer protection laws, a judge recently ruled.

“Religious motivation does not excuse compliance with the law,” Benton County Superior Court Judge Alexander C. Ekstrom said in his 60-page opinion. “In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the courts have confirmed the power of the legislative branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”



Gag Orders Can Create a Whole New Set of Problems

posted by Judge_Burke @ 14:15 PM
March 24, 2015

Professor Eugene Volokh recently highlighted an interesting first amendment case involving gag orders. There may be times when a gag order is appropriate, but if you are a judge contemplating issuing one, be aware that the gag order itself can create a whole new set of problems.

A New Jersey federal court allows the lawsuit — brought by Paul Nichols, a Bergen Dispatch reporter who wants to interview one of the litigants — to go forward, and seems sympathetic to Nichols’s First Amendment argument, though the case is still at a preliminary stage and no declaratory judgment has been issued. Here are some excerpts from that opinion, Nichols v. Sivilli (D.N.J. Dec. 19, 2014):

Plaintiff Paul Nichols is a reporter for the Bergen County Dispatch who brings a First Amendment challenge to a gag order … issued by Judge Nancy Sivilli in Myronova v. Malhan, a divorce and custody suit pending in the family division of the Essex County Superior Court. Nichols wishes to interview one of the parties in Myronova v. Malhan, but is unable to because the Gag Order restrains all parties to the litigation from discussing any aspect of the divorce proceedings.

In order to understand Nichols’ First Amendment challenge, the Court first must provide a brief overview of the divorce proceedings that are the subject of the Gag Order. In 2011, a New Jersey court granted full child custody to Alina Myronova and stripped all custody rights from her husband, Surrender Malhan, after Myronova alleged that Malhan was an unfit parent.

According to the [Complaint], the state court stripped Malhan of his custody rights on a mere two hours’ notice without affording him an opportunity to refute Myronova’s allegations. For example, the court prohibited Malhan from cross examining Myronova or presenting physical evidence — such as bank records or video recordings — that would further demonstrate his parental fitness. The [Complaint] alleges that after the 2011 proceeding, Myronova retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time, “Malhan was never granted a plenary hearing.”

Malhan, along with five other parents, subsequently filed a class action lawsuit in this District that is currently pending before the Honorable Freda Wolfson: Edelglass, et al., v. New Jersey, et al.. The class action suit alleges that the New Jersey family court system fails to provide adequate due process rights to parents in child custody proceedings. In February 2014, a New Jersey affiliate of a major news broadcasting company interviewed Malhan and two other Edelglass plaintiffs regarding their experiences in family court and their allegations that the family court deprived them of their constitutional rights. In response, Myronova initiated proceedings against Malhan, which resulted in Judge Sivilli entering the Gag Order. The Gag Order reads, in pertinent part:

All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties’ marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties’ divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party.

In addition to restricting their ability to discuss their divorce or related litigation with other individuals, the Gag Order also prohibits the parties from conveying such information on social media. The Gag Order also instructs Malhan to remove all divorce-related information from his blog.

In May 2014, Malhan filed for a temporary restraining order in Edelglass seeking to enjoin enforcement of the Gag Order. In a May 8, 2014 Order, Judge Wolfson expressed her view that the Gag Order “raises serious constitutional concerns” and that Judge Sivilli “failed to meaningfully weigh Plaintiff’s First Amendment rights.” She nonetheless denied Malhan’s motion because the relief he sought was barred by the Rooker-Feldman doctrine [which limits federal intervention in state proceedings -EV]. Malhan suffered another defeat when the Appellate Division of the Superior Court of New Jersey denied his application for an interlocutory appeal of the Gag Order.

After Malhan failed to enjoin enforcement of the Gag Order, Nichols filed the instant action in this Court.2 Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, “are a matter of public interest.” Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings.

The [Complaint] alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake. According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order “based on a generalized finding that publicity in family court is not in the best interests of children.” … Nichols seeks … a declaratory judgment that the Gag Order is unconstitutional ….

The [defendants’] motion to dismiss contends that the Gag Order is not a prior restraint and therefore must only be “reasonable,” a standard that, according to Defendants, is easily met here. In contrast, Nichols argues that the Gag Order is a prior restraint subject to the most exacting form of judicial scrutiny.

Once a court determines that a restriction on speech is a prior restraint, there will be a heavy presumption against its constitutional validity.. While the precise differences between a prior restraint and an ordinary restriction on speech are notoriously muddied, at the very least, prior restraints can be understood to “encompass[ ] injunctive systems which threaten or bar future speech based on some past infraction.”

The situation in this case, however, is less straightforward because the Gag Order does not impose any restrictions on Nichols; it restricts only the speech of Malhan, whom Nichols wishes to interview. [Footnote: Even though Nichols is not the subject of the Gag Order, his inability to obtain information from Malhan meets Article III's injury-in fact-requirement.] The Third Circuit is silent on whether a gag order imposed on a trial participant can operate as a prior restraint on the press. Other Circuits that have addressed the issue are in disagreement. Compare In re Dow Jones & Co., Inc. (Dow Jones & Co.), 842 F.2d 603 (2d Cir. 1988) (gag order on trial participant does not operate as a prior restraint on the press), and Radio and Television News Assoc. of Southern California, 781 F.2d 1443 (9th Cir. 1986) (same), with Journal Publishing Co., v. E.L. Mechem, 801 F.2d 1233 (10th Cir. 1986) (gag order on trial participant is a prior restraint on the press presumed to be constitutionality invalid), and CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (same).

The Court need not choose which side of the split to follow because even assuming that the Gag Order is not a prior restraint on the press, Nichols has sufficiently pled that the Gag Order is not justified. See Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920 (5th Cir. 1996) (“We need not decide whether the confidentiality order constitutes a prior restraint on the news agencies because, even assuming that the order is not a prior restraint, its effect on the news agencies’ First Amendment rights must still be justified.” (citing Dow Jones & Co., 842 F.2d at 609)). The Dow Jones & Co. Court, which found that a similar gag order was not a prior restraint on the press, upheld the order only after concluding that it was justified. First, the court noted that the judge who issued the gag order examined specific circumstances unique to the case. For example, the judge found that press leaks attributable to the government revealed the identities and testimony of grand jury witnesses, which constituted a “shameful abuse of grand jury secrecy” that jeopardized the Sixth Amendment rights of the criminal defendants. Moreover, the judge issuing the gag order “properly recognized [that] before entering an injunction against speech he had to explore whether other available remedies would effectively mitigate the prejudicial publicity.” Dow Jones & Co., 842 F.2d at 609, 612 (citing Nebraska Press, 427 U.S. at 562).


How much of an activist should a trial judge be?

Canada and the United States have a number of similarities in the roles judges should play. Both nations frown upon judges doing their own investigation, but at least in the United States there are notable examples of the United States Supreme Court. These issues are not always easy for a judge at any level to deal with. Among other things, the ready access to the Internet makes it tempting to “just find out a little more.”

In R. v. Bornyk, 2015 BCCA 28, January 23, 2015, the accused was charged with the offence of break and entry.  The key evidence against him was a fingerprint found inside the house.  The Crown called an expert fingerprint examiner who testified that the fingerprint had been deposited in the house by the accused.  Submissions were made and judgment reserved.



The trial then took a bizarre twist. After reserving judgment, the trial judge sent counsel four articles critical of the accuracy of fingerprint analysis.

After hearing further submissions, the trial judge entered an acquittal. In doing so he referred to the articles he had produced and his own comparison of the known print with the latent print.



The Crown appealed from the acquittal.  The appeal raised two issues: (1) did the trial judge err “in relying upon independently researched literature that was not properly introduced by either party, not tested in evidence, and not put to the fingerprint witness”; and (2) did the trial judge err “by engaging in his own unguided comparison of the latent print and known print.”



The British Columbia Court of Appeal held that “the judge erred in both manners asserted by the Crown.”

The Court of Appeal noted that it “is basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken.” The Court of Appeal indicated that it was “apparent from the excerpts found in the reasons for judgment and the descriptive titles of the articles that the articles uncovered by the judge are discussions on the subject of fingerprint analysis, including opinion.  As articles commenting on forensic science, their contents are not matters of which the judge could take judicial notice.  It is thus axiomatic that it was not open to the judge to embark on his independent investigation.”

The Court of Appeal concluded, at paragraph 11, that the trial judge “stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of ‘advocate, witness and judge’”.

The Court of Appeal also concluded that the trial judge erred in “conducting his own analysis of the fingerprints” (at paragraphs 18 and 19):

…the judge also erred by conducting his own analysis of the fingerprints, absent the assistance of the expert witness. The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment:  Kelliher (Village) v. Smith, [1931] S.C.R. 672; R. v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.

The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict.


Self-Represented Litigants & Complaints about Judges

posted by Judge_Burke @ 14:57 PM
March 20, 2015

Few people are more dedicated to improving how courts deal with self-represented litigants than Richard Zorza. He had this recent post on his blog:


Do the New Judicial Ethics Rules on SRLs Increase Complaints About Judges

I have recently been involved in a discussion about whether rules authorizing judges to be more engaged with litigants in self-represented cases might increase complaints about judges, specifically for their failure to be more engaged.

These rules (or rather usually Comments to the Codes of Judicial Conduct (memo at link not necessarily up to date) vary from state to state, but make clear that judges “may” engage in certain forms of engagement, such as asking questions and making referrals, without being considered non-neutral.

Some people are fearful that such language will increase complaints because litigants will feel that judges should have done the things and failed to do so.

Probably the most important point to make in response to these concerns is that while many states have now passed some form of this language, we have heard of no such increases reported in any states.

Some have also made the excellent point that since these rules clarify that these practices, which most litigants find helpful, are permitted, it is likely that they may reduce, rather than increase the number of complaints.

Moreover, given that the language tends to the use the word “may” or equivalent, they tend to create discretion, rather than reduce it, thus making the chance of such complaints.

There is one caveat, which may be significant in some cases.  Since the rules/comment changes make clear that judges do have discretion to take such engaged steps, any judge who affirmatively refuses to consider the possibility that such steps would be appropriate in a case is engaging in an abuse of discretion.  “No, I am not allowed to do that.”  “The rules stop me doing that.” That is where the appellate cases are likely to come from.  Of course, a judge who explains why he does not think such a use of discretion in the circumstances of the case is appropriate will be well protected.  As always, transparency is best.


The Imperative to Implement Citizen’s United

posted by Judge_Burke @ 14:00 PM
March 17, 2015

Certainly among political activists and, to a lesser extent, legal academics, the decision in Citizens United has created a lot of angst. The decision in essence held that corporations are people with First Amendment rights. So, if corporations have First Amendment rights, perhaps there needs to be a reexamination of obligations that come with citizenship.

Perhaps nothing is a more essential obligation of citizenship than jury duty.  HB 3385, a bill introduced in Oregon, would require that judges and courts accept corporations as jurors. The state’s existing jury statute (ORS 10.030) would be supplemented with a new paragraph (4).

Any corporation organized under the laws of this state is eligible to act as a juror in a civil or criminal trial or as a grand juror. The corporation must act as a juror or grand juror through an individual agent of the corporation who would be eligible to act as a juror or grand juror under subsection (2) or (3) of this section.

Before you dismissively conclude this is silly, think of the opportunities it will open up.  This initiative may open a whole new cottage industry of “corporate jury consultants.” Sir, can you tell me, does Target believe in the presumption of innocence?


Wisdom from Judge Peggy Hora

posted by Judge_Burke @ 14:00 PM
March 13, 2015

In this blog, Judge Peggy Hora (Retired) explores the guiding principles of Driving While Impaired courts and how these principles can also be used to improve the effectiveness of responses in mainstream court settings…

Driving while impaired (DWI) by alcohol or other drugs is an international problem. Far too many people lose their lives, are injured or injure others while engaging in this totally preventable crime.  Some countries have a stronger ethic about not drinking and driving than others but it is a widespread issue in all parts of the world.

There is a range of permissible blood alcohol content (BAC) levels ranging from zero tolerance for driving up to .08 g/mL throughout the United States.  Some countries have .03 and many have .05 as the “legal limit.”  Science has taught us that everyone is impaired at .08 regardless of tolerance and most people are impaired at .05.  The safest public policy position is to completely separate the ingestion of alcohol with any driving.

When it comes to impairing substances like illicit drugs, cannabis and over-the-counter and prescription medications, much less is known.  We do know that these substances can affect driving but we just don’t know how much is too much.[i]  In the U.S. some states have adopted a zero tolerance position on levels of THC while others have 2 ng/ml, 3 ng/ml or 5 ng/ml as the limit.  The length of time that cannabis can be detected in the body coupled with a movement towards legalization further complicates these issues. We do know that more people in the U.S. now drive with a drug in their system than with alcohol.

The key to prevention of recidivism is to identify those who are unlikely to reoffend after their first arrest/conviction for DWI (80%) from those high risk/high need offenders who, without appropriate intervention and supervision, are likely to reoffend.[ii]

Starting in 1995, the drug treatment court model has successfully been applied to repeat DWI offenders.  As of June 2014 in the U.S., there are 242 DWI Courts and 448 hybrid DWI Courts connected to an existing drug court but called on a separate docket.[iii]  The states of Tasmania and Victoria in Australia are looking at DWI courts and the two-year-old Alcohol and Other Drug Treatment Courts in New Zealand have accepted high risk/high need DWI offenders from the beginning.

While drug treatment courts have the 10 Key Components as their foundational document, DWI courts have the Guiding Principles of DWI Courts that were developed ten years later. The two documents are similar although the Principles address transportation needs and co-occurring disorders, issues not found in the Key Components.  Both have as a basic tenet the importance of the judicial role in these types of courts. GUIDING PRINCIPLE #6, entitled “Take a Judicial Leadership Role,” states:

Judges are a vital part of the DWI Court team. As leader of this team, the judge’s role is paramount to the success of the DWI Court program. The judge must be committed to the sobriety of program participants, possess exceptional knowledge and skill in behavioral science, own recognizable leadership skills as well as the capability to motivate team members and elicit buy-in from various stakeholders. The selection of the judge to lead the DWI Court team, therefore, is of utmost importance.

The role of the DWI Court judge anticipates not only “exceptional knowledge” but also “skill in behavioral science” and motivation of the participants as well as the team.  These attributes should not be and are not limited to judges in solution-focused courts alone. There is no reason judges cannot develop these skills and apply TJ principles in regular calendars/lists.

Besides the talents of the judge, other factors that contribute to a lower recidivism rate in DWI cases are close monitoring of abstinence; record-keeping to ensure completion of an educational program or substance abuse treatment; license sanctions and reinstatements; and, a belief by the probationer that any behavior, good or bad, is likely to be discovered. Frequent status hearings in court are a hallmark of drug treatment and DWI courts but there is nothing to stop a judge on a regular calendar from setting status hearings as well. Safeguards should be in place to detect any driving that is not sanctioned or positive chemical tests to which the court can craft a speedy response.

Judges who leave the specialty court assignment and return to a regular docket report that they just can’t do business the way they used to. Once they know what works, they cannot go back to the traditional but ineffective criminal justice responses. As members of Alcoholics Anonymous are fond of pointing out, “Once you’re a pickle you can never be a cucumber again.” And so it seems that is true for judges as well. Once you practice TJ you can’t go home again.


[i] There is one study from the UK that suggests 5 ng/mlof cannabis is equal to .08g/mL alcohol in terms of impairment for purposes of driving.

[ii] By contrast, in South Australia more than a third (34%) of drivers arrested for DWI has prior convictions.

[iii] This total of 690 DWI Courts compares to almost 2,800 drug courts in the U.S.


Judge Peggy Hora, retired Judge of the California Superior Court and now Senior Judicial Fellow for the National Drug Court Institute and the Global Centre for Drug Treatment Courts, is a global leader in the solution-focused courts movement and has written comprehensively on justice issues.


Is a Sequel to Riverside v. McLaughlin Coming?

posted by Judge_Burke @ 14:00 PM
March 12, 2015

Daniel A. Horwitz has posted The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin (45 U. MEM L. REV. __ (Spring 2015 Forthcoming)) on SSRN.

Here is the abstract:

This Article critiques the holding adopted by a growing number of courts that law enforcement may delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause for up to forty-eight hours following an arrest as long as a judge or magistrate ultimately determines that the arrest itself was supported by probable cause. Although this issue has largely escaped review within academic literature, the practice of employing investigative detentions against warrantless arrestees is widespread among law enforcement. Of note, whether such investigative detentions comport with the Fourth Amendment has also generated a circuit split between the Eighth Circuit Court of Appeals and one of two irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has similarly divided the appellate courts of at least nine states.

This Article rejects the notion that law enforcement may ever deliberately delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause (known as a “Gerstein hearing”) in order to facilitate further investigation by law enforcement. Specifically, it argues that the conclusion reached by several courts that police may intentionally delay a warrantless arrestee’s Gerstein hearing for the purpose of further investigation as long as probable cause existed to justify the defendant’s arrest in the first place is inconsistent with the Fourth Amendment for five separate reasons. First, it confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a determination of probable cause that is made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement — initially established by the Supreme Court in Gerstein v. Pugh, and subsequently reaffirmed by the Supreme Court in County of Riverside v. McLaughlin — which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, it renders McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, it substantially diminishes the value of the check on law enforcement established by Gerstein by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to escape judicial review of any kind.


I Think I’ll Turn Down the Appointment to the Bench

posted by Judge_Burke @ 14:00 PM
March 11, 2015

Both in the United States and Canada there are legitimate concerns about bringing greater diversity to the bench. There have been areas of spectacular success and there have been areas where it seems like no progress — or even regression — has occurred. Now there is a novel approach to the issue from a law professor in Canada.

David M. Tanovich is a law professor at the Faculty of Law, University of Windsor, where he teaches in the areas of criminal law and legal ethics. He wrote in The Globe & Mail:

The latest round of federal judicial appointments in Ontario has further entrenched inequality in our courts and has led me to think about the following provocative question: Should white male lawyers have an ethical duty to say no the next time the federal justice minister comes calling, in order to force systemic change? In my view, the answer is yes.

It is not an understatement to say that we are in the midst of a crisis of representativeness in our federal judiciary.

For example, since 2012, 46 practising lawyers (including three professors) have been appointed to the Ontario Superior Court of Justice or Court of Appeal by Conservative justice ministers. Just over three quarters (78 per cent) of the appointments have been men (36/46). Only one of the appointments appears to be from a racial minority, although an exact number cannot be discerned because of the government’s refusal to collect this necessary information. Things aren’t much better in the other provinces or in the elevation of judges from the provincial to federal courts.


For the full article, go here.


Thinking About What Drives People’s Decisions

posted by Judge_Burke @ 14:01 PM
March 10, 2015

Murat C. Mungan and Jonathan Klick (Florida State University – College of Law and University of Pennsylvania Law School) have posted Identifying Criminals’ Risk Preferences on SSRN.

Here is the abstract:

There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and may therefore have unintended negative consequences.

In this article, we first demonstrate, contrary to most of the existing literature, that CAP consistent behavior does not imply risk-seeking behavior.

A host of considerations that are unrelated to risk-attitudes can generate behavior that is consistent with CAP, including stigmatization; discounting; judgment proofness; the forfeitability of illegal gains; and the possibility of being punished for unsuccessful criminal attempts. Next, we discuss empirical methods that can be employed to gain a better understanding of criminals’ risk-attitudes and responsiveness to various punishment schemes. These methods focus on the various non-risk-related-considerations that may be responsible for CAP consistent behavior. Finally, we discuss the importance of gaining a better understanding of criminals’ attitudes for purposes of designing optimal law enforcement methods, punishment schemes for repeat offenders, plea bargaining procedures and standards of proof.


Does the First Amendment Protect Beer Labels?

posted by Judge_Burke @ 14:00 PM
March 9, 2015

The National Law Journal reports:

A federal appeals revived the craft beer maker’s claims that Michigan liquor officials violated the First Amendment by blocking the sale of the company’s “Raging Bitch” brew in the state.

The U.S. Court of Appeals for the Sixth Circuit sent the Maryland brewery’s case back for a trial judge to rule on the constitutional issue, ruling that the liquor officials were not entitled to immunity. In a 2-1 decision, the majority stopped short of deciding the First Amendment question.

Judge Karen Moore wrote that she would have ruled outright in favor of the brewery.

“The First Amendment protects the right to engage in commercial speech free from government suppression that does not directly advance a state interest and is not tailored to be no more extensive than necessary,” Moore wrote. “The commissioners have no evidence—anecdotal, empirical, or otherwise—that the sight of the ‘Raging Bitch’ label would harm the citizens of Michigan.”