Should a Judge Issue a Parenting Time Order for a Dog

posted by Judge_Burke @ 15:30 PM
December 22, 2016

Dogs are not children and most jurisdictions hold dogs are property to be divided up in the case of divorce. “Dogs are wonderful creatures,” read the first line of a ruling from a Canadian judge.

Over the next paragraph, the judge continued singing the praises of man’s best friend:  Dogs are often highly intelligent, he wrote. Sensitive. Active. Constant and faithful companions.“Many dogs are treated as members of the family with whom they live,” the judge noted. But, none of that matters when it comes to the court of law, concluded Justice Richard Danyliuk of the Court of Queen’s Bench for Saskatchewan. At least not in his court of law.

How much is a pet dog worth? A court will soon decide. “After all is said and done, a dog is a dog,” Judge Danyliuk wrote in an August ruling that was recently reported by CBC News. “At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.” Judge Danyliuk would spend 15 more pages outlining why — in this case of a divorcing couple arguing over what would become of their pets — the court could not treat the dogs in question as “children.

”The case landed in court after the wife argued that she should keep their three dogs — 13-year-old Quill, 9-year-old Kenya and 2-year-old Willow — while allowing for visitation rights of an hour-and-a-half at a time to her soon-to-be ex-husband. Judge Danyliuk noted that the woman’s request was “more akin to an interim custody disposition than it is to a property order” and that he could not comply, because for legal purposes, dogs must be treated as property.

But, is there harm in judges at least attempting to settle dog conflict in a divorce? In a case a few years ago there was bitter conflict about who would get custody of the dog. The Minnesota factors about child custody are totally meaningless when it comes to placing the dog. There is the King Solemn approach, “The dog is property! If  you cannot agree I will order the dog sold and divide the cash.” It might work, but it is a bit brutal. The market for “used” dogs is often pretty thin. There is the, “We Will Have a Dog  Custody Trial” approach. Each party prior to trial is ordered to the local animal humane society to view the homeless animals (who knows…one party may fall in love with a kitten). The dog is ordered to attend the trial and the parties are told, “Your lawyer does not have to attend” (lawyers cost money), but each party will be able to demonstrate in court the dog’s wishes by showing just how well the dog responds to their commands. It sounds ridiculous…and it works. The parties inevitably settle rather than risk never seeing their pet.  


The Presumption of Innocence

posted by Judge_Burke @ 15:30 PM
December 20, 2016

Nicholas Scurich and Richard S. John (University of California, Irvine and University of Southern California) have posted Jurors’ Presumption of Innocence (Journal of Legal Studies, Forthcoming) on SSRN.

Here is the abstract:

The presumption of innocence explicitly forbids jurors from using official suspicion or indictment as evidence of guilt in a criminal trial. A behavioral experiment tested whether jurors follow this prescription. It revealed that, compared to when an individual had been merely named, jurors thought the individual was significantly more likely to be guilty after a detective referred the case to the district attorney, and when the individual was formally charged and thus a criminal defendant. A judicial instruction to presume innocence reduced jurors’ beliefs about the defendant’s guilt. Regression analyses indicated that jurors’ priors predicted their posteriors, and further that their priors were predictive of verdicts even after accounting for their posteriors. The findings suggest that jurors make different assumptions about the guilt of a criminal defendant prior to the introduction of evidence, and that these assumptions influence their overall evaluation of the case as well as their verdict.


What Does the Public Think of Courts

posted by Judge_Burke @ 21:44 PM
December 19, 2016

For several years, the National Center for State Courts has contracted with GBA Strategies to conduct a comprehensive public opinion survey of 1,000 registered voters.

This year, the survey was conducted by telephone between November 14-17, 2016. For those who care about courts, the National Center’s survey is a must read. Survey findings are considered accurate within  +/- 3.1 percent, 19 times out of 20.

Key findings of the survey include:

  • There are signs of positive momentum in public trust. This comes at a time when trust in government in general is fractured.
  • There is a glaring lack of understanding about court funding which is reflective of misconceptions about government spending generally.
  • The public seems willing to support reform of the practice of imposing fines and fees on poor defendants.
  • The public believes that the ethnicity of a judge may impact fairness. Prior polling by other organizations has found that to a moderate or significant extent the public believes judges make decisions based upon their own personal or political views.

For more detail on the survey findings, download the presentation slides.

The NCSC also surveyed public opinion in previous years, and has archived the 2015 and 2014 survey results.



News from The State Justice Institute

posted by Judge_Burke @ 15:30 PM
December 16, 2016

The State Justice Institute recently issued its November e-newsletter. You can check it out here

This month’s newsletter includes information about SJI’s first quarter grant awards, and it highlights recent reports on the landscape of civil litigation, the use of risk and needs assessment at sentencing, and a weighted caseload study for judges and staff in the Vermont trial courts.    


An Acrimonious Divorce Heads to Federal Court

posted by Judge_Burke @ 16:22 PM
December 15, 2016

Years ago, there was a conference attended by state and federal court leaders, convened by Chief Justice William Rehnquist. Among the topics presented was a plea from federal judges to figure out how to send diversity cases to state courts. “These are, after all, essential state claims,” the proponents argued. And so I made a joke:  ”I think it is a great idea! We in the state courts can take your diversity cases and you take the divorces.” The Chief Justice of a Midwestern state very much appreciated my humor, but few if any of the federal judges appreciated it.

And so we now move to the decision this week by the Seventh Circuit Court of Appeals. Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Mr. Epstein’s lawsuit arose from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula and her lawyer, Jay Frank, complied and produced copies of incriminating email correspondence between Barry and several women. According to the Seventh Circuit opinion:

On the face of it, the messages seem to have been forwarded from Barry’s email accounts to Paula’s. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a “rule” on his email accounts automatically forwarding his messages to her. With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C.§ 2520,which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry’s emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Copies of some of the intercepted emails were attached to the complaint as exhibits.


Apparently fearing that this was the beginning of Judge Kevin Burke’s attempt to move all divorce cases from state court to federal court in exchange for the diversity cases, the Federal District Court dismissed the case. This week, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit – in an opinion written by Circuit Judge Diane S. Sykes – reinstated Barry’s Wiretap Act claim against his estranged wife.

While the opinion may strike fear in the hearts of family court lawyers, there is some solace:  the Court of Appeals affirmed the dismissal of the claim against Paul’s family court lawyer, Jay Frank. Oh yes, it appears that Paula and Barry are still litigating their divorce in Cook County’s court.



Can We Safely Cut the Number of People We Incarcerate?

posted by Judge_Burke @ 15:30 PM
December 15, 2016

Nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason, according to a new report from the Brennan Center for Justice at NYU School of Law. The first-of-its-kind analysis provides a blueprint for how the country can drastically cut its prison population while still keeping crime rates near historic lows.

How Many Americans Are Unnecessarily Incarcerated? | Brennan Center for Justice


Surely the Truth Should Be an Essential Part of Our Democracy

posted by Judge_Burke @ 15:31 PM
December 13, 2016

A new Ipsos/BuzzFeed poll finds that fake news headlines fool American adults about 75% of the time. The survey also found that people who cite Facebook as a major source of news are more likely to view fake news headlines as accurate than those who rely less on the platform for news.

NPR has a similar story:

We Tracked Down A Fake-News Creator In The Suburbs. Here’s What We Learned.

Jestin Coler [the fake-news creator] was amazed at how quickly fake news could spread and how easily people believe it. He wrote one fake story for about how customers in Colorado marijuana shops were using food stamps to buy pot. “What that turned into was a state representative in the House in Colorado proposing actual legislation to prevent people from using their food stamps to buy marijuana based on something that had just never happened,” Coler says.


Read more here.


Sleep-Deprived Drivers Have Plenty in Common with Drunk Drivers

posted by Judge_Burke @ 15:41 PM
December 12, 2016

From The Washington Post:

Drivers who have had too little sleep are no different than those who have had three or four drinks and are too drunk to drive.

Those are the findings of an AAA Foundation for Traffic Safety report released Tuesday that draws on original research and past studies to create a troubling picture of the risk caused by a go-go world where many people don’t get enough rest.

About 35 percent of people get fewer than the needed seven hours of sleep, and 12 percent say they sleep for five hours or less, according to the Centers for Disease Control and Prevention.

Earlier research by AAA Foundation showed that 21 percent of fatal crashes involved a sleep-deprived driver. The group’s new work uses data from the National Motor Vehicle Crash Causation Survey to delve into how much driving ability decreases based on varying lack of sleep.

[Falling asleep causes 1 in 5 auto crashes]

Not surprisingly, the less sleep, the higher the risk of a crash.

“You cannot miss sleep and still expect to be able to safely function behind the wheel,” said David Yang, executive director for the foundation. “Our new research shows that a driver who has slept for less than five hours has a crash risk comparable to someone driving drunk.”

People who pride themselves on their ability to function on less sleep than the recommended seven-plus hours will contend otherwise, but the foundation used a sample of 4,571 crashes in which police determined a cause to conclude that those non-sleepers are wrong.


Read more here.



The Remarkable Justice Rick Teitelman

posted by Judge_Burke @ 15:34 PM
December 8, 2016

Missouri Supreme Court Justice Richard B.  Teitelman recently passed away. He was a remarkable person. He served his state and the nation’s courts with great honor. For many years he served on the board of the American Judicature Society where I got to know him. Kurt Erickson wrote of the Justice:

Judge Teitelman, known as “Rick,” began his service on the state’s high court in March 2002 and served as its chief justice from July 2011 through June 2013.

He was 69. Details of his death were not immediately available, but his longtime colleague and friend, former Supreme Court Justice Michael Wolff, said Teitelman had been ailing for several years.

“He’s had some serious health problems,” said Wolff, who is dean of the St. Louis University Law School.

In honor of Teitelman, the court canceled oral arguments scheduled for Tuesday, but will hear arguments as scheduled on Wednesday.

“It is with great sadness that the Supreme Court of Missouri acknowledges the passing of its beloved colleague,” the court said in a statement issued Tuesday morning.

Teitelman — the first Jewish judge to serve on the state’s high court — was born in Philadelphia. At a Missouri Bar Association event earlier this year, Teitelman said his mother had wanted him to become a doctor.

At age 13, however, he was declared legally blind. He graduated from University of Pennsylvania in 1969 with a degree in math and moved to Missouri where he attended law school at Washington University.

He worked at Legal Services of Eastern Missouri in St. Louis for nearly a quarter-century before being appointed to the Missouri Court of Appeals in 1998. He was elevated to the state Supreme Court by former Gov. Bob Holden, a Democrat, in 2002.

On Tuesday, Dana Tippin Cutler, president of the Missouri Bar, offered condolences to Teitelman’s family and friends.

“We join with the Court in recognizing his 18 years of service to the people of Missouri as an appellate judge and his career-long dedication to making sure all Missourians, regardless of their income, have equal access to justice in Missouri,” Tippin Cutler noted in a statement.

House Minority Leader Gail McCann Beatty said the court benefited from Teitelman’s dedication to equal justice for all.

“During his decades representing poor clients as a legal aid attorney and later as a jurist, Judge Richard Teitelman’s commitment to protecting the less fortunate from injustice was unwavering,” McCann Beatty said.

Thomas G. Glick, president of the board of directors of Legal Services of Eastern Missouri offered praise for Teitelman.

“He gave voice to those without representation and was tireless in his work to protect the vulnerable,” Glick said.”


The Key to Building Respect for Courts

posted by Judge_Burke @ 15:30 PM
December 6, 2016

We treat people as people as people, not as docket numbers.