In February 2012, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted the resolution below. The resolution, Urging Congress to Respect Separation of Powers and Principles of Federalism with Regard to Enacting Legislation to Address Child Custody, was recommended for adoption by the CCJ/COSCA Government Affairs Committee.

CONFERENCE OF CHIEF JUSTICES

CONFERENCE OF STATE COURT ADMINISTRATORS

Resolution 4

Urging Congress to Respect Separation of Powers and Principles of

Federalism with Regard to Enacting Legislation to Address Child Custody

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators,

in fulfilling their leadership role for state judicial systems, have traditionally taken

positions to defend against proposed policies that threaten principles of federalism or that

seek to preempt proper state court authority; and

WHEREAS, historically, the federal government has deferred to state law in matters involving

domestic relations; and

WHEREAS, in recent years, federal legislation has been introduced that would amend the

Servicemembers Civil Relief Act (Public Law 108-189) to address child custody

arrangements for parents in the Armed Forces who are deployed or anticipated to be

deployed in support of a contingency operation; and

WHEREAS, in the 112

th Congress, H.R. 1540 would have: (1) restricted temporary custody

orders based solely on deployment or anticipated deployment; (2) excluded parental

absence based on deployment or possible deployment in determining the best interests of

the child in permanent orders to modify custody; (3) made clear that a federal right of

action is not created; and (4) not preempted state law if the applicable state law involving

a temporary order provides a higher standard of protection for the servicemember; and

WHEREAS, federal efforts to legislate matters of child custody would preempt state family law

and potentially discourage state efforts to enact broader and more helpful state laws; and

WHEREAS, family law cases are complex and states are in the best position to balance the

interests of deployed servicemembers and their family members within the context of

their own domestic relations laws; and

WHEREAS, at least 30 states have already enacted state law that addresses the special

circumstances of parents who are serving in the military; and

WHEREAS, the Department of Defense continues to work with the other states, through its State

Liaison program, to enact specific child custody legislation and to redraft its Family Case

Plan Instruction to emphasize the importance of child custody planning before

deployment;

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and Conference

of State Court Administrators urge the Congress to ensure that: (1) during its

consideration of such legislation, the Congress take all available and reasonable steps to

obtain meaningful and timely input from appropriate state government branches and

agencies with respect to principles of federalism and separation-of-powers; and (2) a

federalism assessment of the proposed legislation be included in every pertinent

committee and conference report; and

BE IT FURTHER RESOLVED that the Conferences urge the Congress to continue to reject

legislative proposals to preempt state family law.

Adopted by the Conference of Chief Justices as proposed by the CCJ/COSCA Government

Affairs Committee at the 2012 Midyear Meeting on February 1, 2012 and by the Board of

Directors of the Conference of State Court Administrators on February 10, 2012.

Many states have been hard hit by funding cuts to courts. While there are a few states that have rebounded perhaps no state has been as challenged as California. Real budget cuts with profound consequences have hurt the courts and as might be expected diminished court employee morale has accompanied divisions among judges and the Judicial Council about how to best respond to the court funding crisis. The problems are real and there are few easy solutions. But there has emerged a renwed spirit in the legal community that something must change, Richard Zorza reports on his blog, for example, that In San Francisco there was a rally organized by the San Francisco Bar Association, with participation from legal aid leaders, law schools, big firms, prominent plaintiff firms, the State Bar, coming together to support the courts and protest the closing of courts and self help centers and courts due to lack of funding. Here is a report on the rally: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202549475928&Rally_for_Court_Funding_Draws_Hundreds_in_San_Francisco The array of speaker was impressive—a list of who is who in the legal community across the state. http://www.sfbar.org/calendar/eventdetail.aspx?id=X120036/X120036. Other local bar associations also joined the effort, including Contra Costa Bar Association http://www.cccba.org/attorney/news/press-20120315.php and the Santa Clara Bar Association. https://m360.sccba.com/event.aspx?eventID=49135&instance=0.  So this rally cannot be dismissed as a San Francisco event only—San Francisco being well known to take first time positions in many issues. And private firms are also supporting the rally.  http://lieffcabraser.com/media/pnc/5/media.1255.pdf and http://rftmlaw.com/?email-campaign=rally-to-support-court-funding-april-18-2012-in-san-francisco.

There is no perfect model for how states can better advocate for adequate and stable funding but what is happening in California might work in other states.

Can court leaders learn from the private sector? Of course what we do is radically different, but if there is any benefit from the current court funding crisis, it is it creates an environment where learning from others is imperative. Nancy Schlicting, CEO of Henry Ford Health System recently said “The most important word that creates an entrepreneurial and innovative environment: ‘yes.’ ”  In other words, empower your people and good things will happen. The same can be said of courts.

For trial judges who are a bit cynical limiting instructions given to a jury are worthless…..but we give them anyway. So it is interesting to have someone take a serious and scholarly look at the issue. That is what Professor David Alan Sklansky did.

David Alan Sklansky (University of California, Berkeley – School of Law) has posted Evidentiary Instructions and the Jury as Other (Stanford Law Review, Vol. 65, 2012) on SSRN. Even for judges with far too much to read, Professor Sklansky’s article is worth looking at. Here is the abstract:

Limiting instructions and instructions to disregard inadmissible evidence are widely believed to be both ineffective and necessary. Courts presume that juries follow evidentiary instructions, but the presumption is almost universally acknowledged to be false, a kind of professional myth. But we have it backwards. The real myth about evidentiary instructions is not that they work. The real myth is that they don’t work, but that we need to rely on them anyway. Both of these ideas about evidentiary instructions are wrong or at best greatly exaggerated. Evidentiary instructions probably do work, although imperfectly and better under some circumstances than others. Furthermore, evidentiary instructions are not an essential part of jury trial, and the legal presumption that they work flawlessly is even less fundamental.

The conventional wisdom about evidentiary instructions is part of a broader way of thinking about lay adjudicators that holds deep appeal but that we would do well to jettison: the idea that juries are something other than groups of human beings called together to sit in judgment, that trial by jury is something other than trial by people, that the jury is not a workaday committee but a kind of intuitive, unmethodical, pre-discursive oracle — the “voice of the community.” Thinking about juries as groups of people — inherently flawed, just as people are inherently flawed, but capable of reason, just as people are capable of reason — would allow us to think more sensibly, and more responsibly, not only about evidentiary instructions but about adjudication more generally.

Full-time and well educated judges, prosecutors, criminal defense attorneys, court staff members are relatively new positions in the American justice system. The benefits of this organizational development are closer adherence to proper procedures, stronger advocacy and a more orderly and controlled legal process to the extent that even the critics of the court world never call for a return to part-time and lay practitioners. Yet, the costs associated with the best and the brightest plague the quality of justice as mosquitoes plague campers.

Consider the fact that professionalism leads to two distinct vocabularies governing what is happening in open court, chambers, and hallways. Practitioners have one set of terms, concepts, and methods of expression and the public, including witnesses, jurors, and litigants have another. The former reflects the formal training, experience, and and on the job norms and and the latter reflects the shallow understanding held by everyone else. No wonder criminal defendants are skeptical and even dissatisfied with public defenders because they virtually have no grasp of what their counsel says to them and to others. And no wonder the public sees attorneys in general as scheming and judges relying on technicalities. I seriously doubt if any member of the public knows what has come to be called the court room working group in crimial cases. And many a doctor who has eluded a trial court judgment thinks there is no reason to considering settlement in an appeal by a patient because the possibility of an appellate court reversal is so close to zero, it likely is zero given measurement ertor. Hey, I’ve already won. Why should I bargain my position?

What does the public generally fail to know? Well, for starters, the public sees courts as just another branch of government and hence the policy making process is assumed to operate in the legal arena. The basic differences between the policy making process and the legal process are lost on the public. The public believes popular sentiments have a key role in judicial decision-making.

Another misconception that the public has is that judicial decisions primarily are the product of a judge in a given case. In fact, the public sees courts as simply as loose collection of individual, autonomous lawyers who have been appointed to the bench. There is very limited appreciation for the fact that the decision in an individual case are in a real sense a product of a judiciary. The decisions made by other judges constrain and direct what any individual judge might decide in a given case. Unpopular decisions are thought to be the product of wierd and out of touch judges.

In my opinion, professionalism both enhances the legal process and makes it difficult for the public to comprehend what, why, how, when, and where official participants make decisions. This observation is not novel, but it does imply the gap between the pros and the public will grow if left unintended. The legal process is unlike many sports where many fans have grown in knowledge to the extent they consider themselves as de facto managers and in some instances deserving of de jure status.

If it is the case that public understanding is worthwhile, the contemporarycourt performance movement should incorporate this element in its proclaimed efforts to establish goals and measures of respect, dignity, and accountability to the multifaceted public. Increase understanding will not make public prone to second guess judges; it is likely to have the opposite effect and make room for a more informed acceptanceof desirable judicial independence. The aim is not to make every member of the public an intrepid court watcher. Instead, a viable objective is to offer a comprehensible message of what is the role of courts in a democratic system. Such an effort will not right every misconception, but it will connect the process closer to the public in meangingful ways.

President Barack Obama offered a commentary on the US Supreme Court last week and suggested the Affordable Health Care Act would not be found unconstitutional by a five to four vote. He added that unelected judges would not think of contravening a law passed by a majority of democratically elected  of US Senators and US Representatives. The policy benefits and constitutionality of the Act aside, the Presidents words seem odd.

The entire Executive Branch of the Federal Government is unelected except for two positions, the Presidency and the Vice-Presidency. None of the other remaining millions of executive branch employees are elected. Cabinet members and other selected executive officers require US Senate confirmation, but so do federal judges (federal magistrates do not). Needless to say, a lot of decisions made and orders issued by executive employees never receive any judicial review. Hence, President Obama might do well by setting an example for future Presidents in ceasing and desisting from criticizing federal judges on the grounds they are unelected.

Furthermore, federal judges may be removed from office through the impeachment process. That is not just a theoretical possibility. Several federal judges at all levels have been impeached and convicted, including former Judge Alcee Hastings. Interestingly, Mr. Hastings subsequently ran and was elected to the US House of Representatives where currently he is a member of the Democratic Party representing a Congressional District in Florida. So an individual found not worthy of holding a non-elected federal judgeship, Hastings was found guilty of bribery, holds an elected federal legislative position. Such an situation undoubtedly is one known by President Obama and thereby should make him particularly cautious in raising questions about unelected federal judges.

One can argue an elected federal judiciary is superior to an appointed one, but to argue against possible decisions of particular judges on those grounds seems taking an ad hominem argument to its logical conclusion.

Justice Alito wrote the opinion for the unanimous Court in Rehberg v. Paulk.

Vice President Joseph Biden recently spoke to the mid-year meeting of the State Conference of Chief Justices. He  said Americans often take for granted our court system.

“Far more than any other country on the planet, the United States of America upholds basic liberties,” he said, adding this is even true when compared with some of our European allies, noting recent culture clashes in Europe related to immigration. “In my view, the nations that are still in transition are going to come to learn the basic truth we have known for some time,” he said. That until there is a rule of law, “where a business can be sure that their intellectual property will be protected and citizens will be free to speak their minds,” he said, those nations will never fully realize their potential. “Russia is a case in point,” Biden said, noting that more than 20 years after the end of the Soviet Union, that nation is struggling to become a prosperous democracy.

http://www.delawareonline.com/article/20120131/NEWS02/201310332/VP-Biden-Court-system-has-vital-role-liberty

The United States Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky wrote recently. Dean Chemerinisky has been a regular and popular speaker at the American Judges Association annual conferences.  He argues that the United States Supreme Court’s failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.

 http://legaltimes.typepad.com/blt/2012/01/supreme-court-fails-to-communicate-effectively-to-public-law-scholar-argues.html
More recently Judge Steve Leben & I coauthored a commentary about this United States Supreme Court oral argument.             

Public attention will focus on the United States Supreme Court this week in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a presidential-election year. The health-care issues before the Court divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

Judge Steve Leben

In this environment, the Court will hold three days of oral arguments, beginning today, on issues surrounding the Patient Protection and Affordable Care Act — the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Perceptions may have lasting impact

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness — voice, neutrality, respect, and trustworthy authorities. For the full commentary see:

http://www.minnpost.com/community-voices/2012/03/supreme-court-itself-will-be-tested-it-hears-health-case-arguments

The United States Supreme Court has always been held in high esteem by the American public. Researchers regularly cite the Bush v. Gore decision as evidence that the American people are willing to believe there is a different standard for decison making by judges. Judges make decisions based upon legal principles, not personal or political views. That belief about the legitamacy of judicial decisions is now being challenged. A new Washington Post/ABC poll shows

  Most believe SCOTUS will make political ruling on Obamacare

byJoan McCarter

New polling from Washington Post-ABC News confirms what previous polls by the Kaiser Family Foundation revealed: Americans think the Supreme Court is a partisan, political institution, and will decide on the Affordable Care Act based on political views.