Archive for March, 2017

Shots Fired!!! Break Down The Door?

posted by Judge_Burke @ 14:30 PM
March 16, 2017

For police, “shots fired” gets attention. For judges, the reaction of the police to shots fired is usually pretty empathetic.; there is no comparison between weaving within the lane to justify a stop and shots fired. But, the law does require judges to evaluate situations…even shots fired…by the totality of circumstances.

From the Fourth 

D.Conn.: Shots fired call is not per se exigency; totality standard must apply

Posted on February 23, 2017 by Hall

A shots fired call is not carte blanche exigency–the totality of circumstances must still be examined. Here, the court finds no exigency for the warrantless entry or protective sweep and that the exclusionary rule should be applied. The costs aren’t substantial compared to the deterrent effect. United States v. Calhoun, 2017 U.S. Dist. LEXIS 21708 (D.Conn. Feb. 16, 2017):

In the same vein, the reports of shots fired in the general area did not indicate an ongoing threat of violence at 49 Ridgewood Place. Contrary to the government’s suggestion, the Fourth Amendment does not create a per se exception to the warrant requirement any time there is a report of shots fired nearby, even if the police believe they have located the person responsible for firing those shots; in every case, the totality of the circumstances must be examined. Cf. Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938-39 (N.D. Cal. 2014) (holding that although reports of domestic violence should be taken seriously, they do not per se constitute exigency); Harris v. O’Hare, 770 F.3d 224, 236 (2d Cir. 2014) (The “mere suspicion or probable cause for belief of the presence of a firearm does not, on its own, create urgency.”) (emphasis in original). In cases holding that a report of shots fired provided sufficient exigency to justify a warrantless entry, the officers had an objectively reasonable belief that victims would be found at that location because that was where the shots had been fired. See United States v. Ashburn, 2014 U.S. Dist. LEXIS 62656, 2014 WL 1800409, at *5 (E.D.N.Y. May 6, 2014) (collecting cases where emergency aid doctrine justified entry to search for shooting victims where there was evidence that shots had been fired, such as the presence of bullet holes and casings at that location); United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (collecting cases holding same, where there were bullet holes, casings, or reports of shots fired at that location). In the present case, by contrast, the evidence available to the officers on location at the time of the breach did not provide any indication that shots had been fired at the residence. Instead, all of the available evidence suggested that Calhoun fired shots at a different location and then fled to his residence. The shots fired were reported before Calhoun drove away from the CVS, see (Gov’t Ex. 2); there were no bullet holes visible on the residence or in the car; and after roughly fifteen minutes of searching, the officers had not found any casings in the area around the residence.

. . .

The emergency aid doctrine does not require “ironclad proof of a ‘likely serious, life-threatening’ injury,” Fisher, 558 U.S. at 49 (quoting Brigham City, 547 U.S. at 406), nor is a failure to immediately call for medics fatal to an emergency aid claim, see id.; nevertheless, the officers’ objectively reasonable belief must be based on something more than speculation and the government has not shown that to be the case here. See Simmons, 661 F.3d at 158; see also Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938 (N.D. Cal. 2014) (“Defendants must point to ‘specific and articulable’ facts which, taken together with rational inferences, support the warrantless intrusion.”) (quoting United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)).

In sum, I find that the officers’ warrantless entry into 49 Ridgewood was not justified by the emergency aid doctrine. The government has not pointed to any other reason why a warrantless entry would be permitted in this case, nor did it provide evidence that it would have been impracticable to wait for Calhoun and arrest him upon his exit from the residence or to obtain a warrant for his arrest. For the sake of completeness, however, I will also discuss the scope of the officers’ search within the residence before considering the implications of this finding for Calhoun’s suppression motion.

. . .

The government’s evidence thus indicates that the officers’ search of the residence lasted considerably “long[er] than [was] necessary to dispel the reasonable suspicion of danger,” Buie, 494 U.S. at 335-36, and in fact amounted to wanton disregard for the limitations of a permissible protective sweep.

. . . 

I can only speculate about the likelihood that any of those scenarios would have occurred, and, as the Second Circuit observed in United States v. Stokes, 733 F.3d 438 (2d Cir. 2013), “that is precisely the problem: a finding of ‘inevitable’ discovery cannot rest on speculation about what [Calhoun] might or might not have done.” Id. at 446. Because there was nothing inevitable about what would have been discovered absent the unlawful entry, the inevitable discovery doctrine does not apply here.

. . .

At the hearing, the government suggested that another cost of imposing the exclusionary rule in this case is that it could have the effect of causing officers to hesitate before providing aid out of concern that the emergency aid doctrine would not apply. But the emergency aid doctrine, unlike other theories of exigency, contemplates a calculation that does not take into account the possible criminal conduct of the person believed to be in need—it is aimed at the provision of medical care and harm prevention, rather than the identification of suspects and evidence. Thus, exclusion of evidence from a criminal trial should have no effect on the willingness of officers to render emergency aid.

In sum, I conclude that the deterrent effect of imposing the exclusionary rule easily outweighs its costs in this case. Accordingly, any verbal and physical evidence obtained during the warrantless search of Calhoun’s residence is suppressed.


In Duncan v. State of Louisiana, the United States discussed at length the Right to a Jury Trial in criminal cases. The Supreme Court said:

The Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

 The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,”; whether it is ‘basic in our system of jurisprudence,’; and whether it is ‘a fundamental right, essential to a fair trial,’ (internal citations omitted). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused.

The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689. In the 18th century Blackstone could write:

‘Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that * * * the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous   suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.’

Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765—resolutions deemed by their authors to state ‘the most essential rights and liberties of the colonists’—was the declaration:

‘That trial by jury is the inherent and invaluable right of every British subject in these colonies.’

The First Continental Congress, in the resolve of October 14, 1774, objected to trials before judges dependent upon the Crown alone for their salaries and to trials in England for alleged crimes committed in the colonies; the Congress therefore declared:

‘That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.’

The Declaration of Independence stated solemn objections to the King’s making ‘judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,’ to his ‘depriving us in many cases, of the benefits of Trial by Jury,’ and to his ‘transporting us beyond Seas to be tried for pretended offenses.’ The Constitution itself, in Art. III, s 2, commanded:

‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.’ 


In a Canadian case, R. v. Peers, [2015] A.J. No. 1413 (C.A.):

[T]he accused was charged with an offence, contrary to section 194 of the Securities Act, R.S.A. 2000. The maximum penalty for a conviction under this provision was a period of imprisonment of five years less a day, a fine of up to $5 million, or both.

Section 11(f) of the Charter states as follows:

Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe penalty. 

The accused argued that the potential punishment of five years less a day imprisonment, plus a $5 million fine, amounted to a “more severe punishment” which generated the right to a jury trial.

The Alberta Court of Appeal held that the phrase “imprisonment for five years or a more severe punishment” found in section 11(f) of the Charter, primarily engaged the deprivation of liberty inherent in the maximum sentence of imprisonment imposed by the statute. A maximum penalty of “five years less a day” did not become a more severe penalty just because some collateral negative consequences were added to it.

On appeal to the Supreme Court of Canada, the Court (2017 SCC 13) in a brief oral judgment stated:

The appeal is dismissed. We conclude that the appellant was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal, 2015 ABCA 407, 609 A.R. 352.


What Judges Should Know About Adolescent Brain Development

posted by Judge_Burke @ 15:00 PM
March 14, 2017

New research is showing distinct changes in the brains of young adults, ages 18 to 21, suggesting that they too may be immature in ways that are relevant to justice policy. A new knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience considers the implications of this research:

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account? 

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, not only in their behaviors, but also (and of course relatedly) in the ways their brains function. These findings have influenced a series of Supreme Court decisions relating to the treatment of adolescents, and have led legislators and other policymakers across the country to adopt a range of developmentally informed justice policies.



Handling a High Visibility Case with High Visibility Criticism

posted by Judge_Burke @ 15:43 PM
March 13, 2017

How immune are judges to public criticism? Even judges with lifetime appointments can succumb to pressure. Is it worse if you are an elected judge? Either way, how a judge reacts is very important.

A decades-old feud between a Philadelphia judge and the late actor Charlton Heston may have helped a Pennsylvania man get his 1998 murder conviction overturned. A U.S. appeals court granted Paul McKernan’s appeal, ruling that the judge who found him guilty 19 years ago, Judge  Lisa Richette, may have felt pressure to dispel Heston’s claim that she was soft on crime. Heston, known for his starring roles in films like “The Ten Commandments,” “Ben-Hur” and “Planet of the Apes,” was also famous as the longtime president of the National Rifle Association. At the group’s 1998 convention in Philadelphia, Heston called Richette, then  a local judge, “Let ‘em Loose Lisa.”

Joseph Ax of Reuters has this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued. 


Judicial Involvement in Plea Bargaining

posted by Judge_Burke @ 15:30 PM
March 10, 2017

There are states where judges never participate in plea negotiations (even if the rules might permit it), and there are states where judges do (sometimes regardless of the rules that prohibit judicial participation in plea bargaining).

Darryl K. Brown (University of Virginia School of Law) has posted What’s the Matter with Kansas — And Utah?: Explaining Judicial Interventions in Plea Bargaining (Forthcoming in Texas Law Review See Also, vol. 95 (February 2017)) on SSRN.

Here is the abstract:

This short piece suggests explanations for an apparent increase in a certain kind of “managerial judging” among state criminal court judges. In a recent study of ten states that authorize their trial court judges to play a role in the plea bargaining process, Nancy King and Ronald Wright found evidence that judges in eight states have indeed have become more involved in facilitating negotiated pleas. I suggest that an important likely reason for this development is that the eight states with active judges all have broad regimes of pretrial discovery. The two states in which judges have not moved into more active role — Kansas and Utah — are the two jurisdictions with much more limited pretrial discovery rules. Broad discovery was a key explanation the “managerial judging” that Resnik described in her classic account of federal civil litigation. Discovery — rather than simply rules authorizing a judicial role in the plea process — seems likely, for various reasons, to be an important factor in the somewhat analogous development of the judicial role in state criminal courts. I also consider the possible effects of other factors that make Kansas and Utah distinctive — they are the most rural states in the King-Wright study, and they have consistently had the lowest state incarceration rates.


Reducing Implicit Bias is Not Easy: But We Need to Try

posted by Judge_Burke @ 15:30 PM
March 9, 2017

L. Song Richardson (University of California, Irvine School of Law) has posted Systemic Triage: Implicit Racial Bias in the Criminal Courtroom (Yale Law Journal, Vol. 126, No. 3, 2017) on SSRN.

Here is the abstract:

In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges. No scholar has taken this systemic view of triage and explored its implications. Using evidence from Professor Van Cleve’s ethnography and from the social psychology of implicit racial bias, I argue that systemic triage inevitably results in racialized justice, regardless of the conscious motivations of individual decision-makers. It ends with some suggestions for reform.


Is the Solution to Mandate that Interrogations Must Be Recorded?

posted by Judge_Burke @ 15:30 PM
March 8, 2017

Minnesota is a state that mandates custodial interrogations of suspects be recorded. When the Minnesota Supreme Court announced this decision in State v. Scales (log-in required) there was a bit of an outcry from prosecutors and law enforcement. Today, few argue with the wisdom of the decision or are critical of the requirement.

Christopher Slobogin (Vanderbilt University – Law School) has posted Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues (Boston University Law Review, 2017) on SSRN.

Here is the abstract:

Fifty years after Miranda, courts still do not have clear guidance on the types of techniques police may use during interrogation. While first generation tactics (a.k.a. the third degree) are banned, second generation tactics such as those found in the famous Reid manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second generation techniques, if any, are impermissible, and has made no mention of newly developed third generation tactics that are much less reliant on manipulation. This article divides second generation techniques into four categories: impersonation, rationalization, fabrication and negotiation. After concluding, based on a review of field and laboratory research, that these techniques might well have superior “diagnosticity” to third generation techniques — and thus that police might rationally want to continue using them — it argues that the Court’s Fifth Amendment and due process jurisprudence prohibits negotiation but permits impersonation, rationalization and fabrication. At the same time, the article recognizes that these techniques can produce false confessions; accordingly, it develops evidentiary principles for determining how courts might make use of expert testimony about factors that reduce the probative value of statements obtained during interrogation (although it also questions the methodology of much of the research that might form the basis for such testimony). 

To ensure the evidence necessary for this constitutional and evidentiary analysis, interrogations must be recorded. While a recording requirement has been endorsed by commentators from all points of the political spectrum, here too the Court has been silent. This article summarizes why recording is required under the Due Process Clause, the Fifth Amendment and the Sixth Amendment, not just in the stationhouse but any time after custody. The article ends with comments on how all of this should apply to interrogations of suspected terrorists. Together, these prescriptions give courts the concrete guidance the Supreme Court has failed to provide despite 50 years of caselaw.


How Popular Is Asset Forfeiture?

posted by Judge_Burke @ 15:30 PM
March 7, 2017

Civil forfeiture has a history dating back several hundred years, with roots in British maritime law to the British Navigation Acts around the middle 1600s. In many respects, it is an embedded feature of the criminal justice system. Drunk drivers lose their cars. Drug dealers lose their cash & valuables. But, in the past few years, the number of critics has grown.

In some states, civil forfeiture can occur even if there is not a conviction. Opposition to forfeiture without a conviction is particularly controversial. Seventy percent (69.9%) of Oklahoma’s likely-voters supported  legislation that would allow law enforcement only to keep confiscated property when a criminal conviction is achieved. Results varied only slightly based on party affiliation, with 58 percent of Republicans strongly supporting the legislation, 53 percent of Democrats, and half of all Independents. Support was also seen among both liberals and conservatives, with 59 percent strong support among those who identified themselves as “very liberal,” and 72 percent among those who identified themselves as “very conservative.”

More recently, in a statewide poll done for the Texas Public Policy Foundation, Baselice & Associates asked 922 registered Texas voters (+/- 3.2% margin of error) from Jan. 22 to 29, 2017, the following question:  “Civil asset forfeiture is when the state or federal government takes and keeps a person’s property without necessarily charging them with any criminal behavior. Should the state or federal government be allowed to take and keep a person’s property without a criminal conviction?”

Based on the results, an overwhelming majority of Texan voters don’t believe the state or federal government should be allowed to take and keep a person’s property without a criminal conviction. Below are the results of the poll, as well as crosstabs and the questions asked of voters:




Thinking About Crime Labs

posted by Judge_Burke @ 16:23 PM
March 6, 2017

Brandon L. Garrett (University of Virginia School of Law) has posted The Crime Lab in the Age of the Genetic Panopticon (Book Review) (Michigan Law Review, Vol. 114, 2017) on SSRN.

Here is the abstract:

“Scientific evidence really nails this man to the wall,” the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson’s Cops in “Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories.”

Second, I turn to Erin Murphy’s book, “Inside the Cell: The Dark Side of Forensic DNA,” to explore Murphy’s compelling account of why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado’s book, “Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law, but focusing here on cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice. 


What Should You Do When Your Spouse Is Politically Active?

posted by Judge_Burke @ 15:57 PM
March 3, 2017

The ABA Journal recently had an interesting story by Debra Cassens Weiss. The story centers on Supreme Court Justice Clarence Thomas’s wife, Ginni Thomas. Ms. Thomas has been a long time political activist. At one point in her career she worked for Republican Congressman Dick Armey. The story Ms. Cassens Weiss wrote, in part, is:

Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, reportedly sent an email to a conservative group email list that asked how she could organize activists to support President Donald J. Trump.

The Feb. 13 email and a recent article by Ginni Thomas could raise recusal issues for justice, the Daily Beast reports. The publication obtained a copy of the email but did not reveal the source.

The email sought a way to counter grassroots efforts by a group called Daily Action, which opposes the Trump agenda, including the president’s temporary travel ban. In a recent article for the Daily Caller, Ginni Thomas commented on an interview with Christian Adams, the lawyer-author of Injustice: Exposing the Racial Agenda of the Obama Justice Department. Adams thinks acting Attorney General Sally Yates should have been dismissed even before she refused to defend the travel ban.

Thomas sounded a warning in her Daily Caller article. “Today, a subversive alt-government is emerging, in line with the alt-left’s growing resistance to use any means necessary to slow, stop and obstruct Trump’s agenda, from inside the government, to make America ungovernable,” she wrote.

Thomas sounded a similar theme in her email to the group email list.

“What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable?” Thomas wrote. She then referred to Daily Action and its popularity on Facebook.

“But there are some grassroots activists, who seem beyond the Republican party or the conservative movement, who wish to join the fray on social media for Trump and link shields and build momentum,” she wrote. “I met with a house load of them yesterday and we want a daily textable tool to start. … Suggestions?”

The Daily Caller spoke with ethics experts who said the timing of Thomas’ email suggests she was trying to organize support for Trump’s executive orders, including the temporary ban on entry into the United States by refugees and immigrants from seven majority-Muslim nations.

That kind of conduct by a justice’s spouse could spur “a nonfrivolous disqualification motion” by travel ban challengers, should the issue reach the U.S. Supreme Court, according to Georgetown University Law Center professor Heidi Li Feldman.”

So, what does a judge need to do when their spouse has their own political career? It may be reasonable to be concerned, but there are famous couples with decidedly different political views, e.g. James Carville & Mary Matalin. We no longer live in an era where husbands could simply tell their wives what job, if any, they could accept. Nor, for that matter, do we live in an era where wives can simply tell their husbands what job, if any, they can accept. So how does the modern-day judge appropriately deal with the political activity of their spouse.


The issue of recusal is not just an issue for judges in the United States. Judge Wayne Gorman provided some insight in Canadian thinking about recusal:

In Cabana v. Newfoundland And Labrador, 2014 NLCA 34, Mr. Cabana applied for an interlocutory injunction concerning the development of a hydro-electric power plant at Muskrat Falls in Labrador.  The application was dismissed. Mr. Cabana appealed, arguing that the application judge should have recused herself. The Newfoundland and Labrador Court of Appeal indicated that the “grounds of appeal on which Mr. Cabana submits that the judge was required to recuse herself” included judge’s spouse as a partner in a law firm; legal work for Newfoundland and Labrador Hydro done by the judge prior to her appointment; and political donations made by the judge prior to her appointment…The final issue is disqualification of the judge based on the conduct of the hearing.”

Litigation – Judge’s Husband as Partner in a Law Firm:

The Court of Appeal indicated that Mr. Cabana “is being sued by Alderon Iron Ore Corporation and an individual. They are being represented, not by the judge’s husband, but rather by other lawyers in the firm in which the judge’s husband is a partner. Mr. Cabana says this gives the judge a pecuniary interest arising from her husband’s share of the fees from the Alderon litigation.”

The Court of Appeal concluded, at paragraph 26, that the “fact that the judge’s husband earns money as a partner in the law firm and that a portion of that money comes from litigation undertaken by the firm cannot form the basis for a finding of reasonable apprehension of bias by the judge in this case. The allegation does not pass muster when the Wewaykum test of an informed person, viewing the matter realistically and practically – and having thought the matter through – is applied.”

Legal Work for Hydro:

The Court of Appeal noted that in 2007, the applications judge “represented Newfoundland and Labrador Hydro in hearings before the Public Utilities Board. The hearings related to setting rates for electricity, which the Board regulates. Representing Hydro may be characterized as akin to representing Nalcor, which is a party to this proceeding, because Hydro is a wholly-owned subsidiary of Nalcor.”

The Court of Appeal concluded, at paragraph 38, that this did not form a basis for recusal.  It indicated that “the judge did work for Hydro six years before Mr. Cabana raised the issue of apprehension of bias in this case. The work the judge did had no direct relationship to the issues at play in this case. The judge was not an employee of Hydro, having done the work on a contractual basis, and there was no evidence of an on-going solicitor-client relationship.” 

However, the Court of Appeal also indicated that “it would have been preferable for the judge, at the outset, to disclose these facts, to give the parties an opportunity to consider their positions.”

Political Donations:

The Court of Appeal indicated that Mr. Cabana “sought to put into evidence information concerning political donations the judge made prior to her appointment as a judge.”  The Court of Appeal held that the application judge “correctly refused to allow the evidence. A lawyer is free to engage in political activity and to make donations to political parties. This changes upon appointment as a judge.”