There is an interesting commentary by Caren Meyers: Morrison on United States v. Jones

Caren Myers Morrison (Georgia State University – College of Law) has posted The Drug Dealer, the Narc, and the Very Tiny Constable: Reflections on United States v. Jones (California Law Review Circuit, Forthcoming) on SSRN.  Here is the abstract: 

This past January, the Supreme Court held unanimously in United States v. Jones that the installation and use of a GPS tracker on a suspected drug dealer’s Jeep constituted a search under the Fourth Amendment. The outcome had been fairly well foreshadowed: at oral argument, the Justices had seemed perturbed by the thought that police could put trackers on cars — even the Justices’s own cars — seemingly at will, and there was a clear thread running through the questions that the practice smacked a little too much of George Orwell’s 1984.

For a less academic reaction to the Jones case see “FBI chief describes GPS problem from court ruling” by Pete Yost of The Associated Press in this report.

It is taken almost as an article of faith that retention elections are enhanced with the addition of a judicial performance commission. Some states such as Utah have taken steps to enhance that state’s commission with onsite observation of judges and a focus on procedural fairness. Regardless of whether you are a proponent or skeptic of judicial performance commissions looking at the website of the Utah Commission is worthwhile. http://judges.utah.gov/

But as illustrated by the action of the Kansas House of Representatives there are critics. Republicans in the House moved to abolish a judicial performance commission that annually reports on evaluation of state judges working in Kansas. The commission was a creation of the 2006 Legislature, but critics of the assessments don’t believe the work delves deeply enough into judicial failings to be a meaningful source of information for those voting on retention of judges. The argument of the proponents was that the Kansas commission was too easy on the judges…..or in the parlance of law school professors, there is grade inflation in Kansas.

Perhaps the Kansas Commission was too lenient, but there is another quite plausible explanation for exemplary judicial performance in Kansas. Kansas is one of the epicenters of judges who are members of the American Judges Association. Two recent presidents of the American Judges Association are from Kansas (Terry Elliot and Steve Leben). For more on the debate in Kansas see: http://cjonline.com/news/2012-03-06/house-wants-pull-plug-judicial-reviews

For sitting judges, hate crimes are among the most difficult cases to preside over. Perhaps the challenge is applying the particular law of of your jurisdiction, but more often than not, hate crimes by their very nature are emotionally tolling.  There is an interesting debate about hate crimes in the New York Times. It is worthwhile to take the time to read…..and worthwhile to reflect how regardless of the precise statutory scheme presently in your jurisdiction, judges can ensure that the law is fair and wise. 

http://www.nytimes.com/roomfordebate/2012/03/07/are-hate-crime-laws-necessary/?ref=opinion

Since the decision in Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), there has been heightened interest in judicial recusal, but it is mostly driven by concerns about when judges should disclose potential conflicts or recuse. Participating in democracy by voting has always been deemed appropriate in the United States. Until recently, judges in Canada did not vote.  Speaking out about the political issues of our time makes many judges and judicial ethicists nervous, but it does happen. Judge Posner of the Seventh Circuit is prolific in his writings, and some of his commentary is far afield from traditional notions of advocating issuesthat affect the administration of justice. Regardless of whether you agree with him or not, Judge Posner is a very respected judge.

So if voting by judges is ok, what about signing recall petitions? That is the issue presented in Wisconsin.

MADISON – The Republican Party of Wisconsin on Wednesday filed a complaint against Dane County Circuit Court Judge David Flanagan with the state Judicial Commission, a party spokesman confirmed.

Judge Flanagan granted a temporary injunction this week halting the implementation of Wisconsin’s voter identification law, but it was learned soon afterward that Flanagan had signed a recall petition against Governor Walker.

“The Republican Party is requesting that a full investigation be conducted into the failure of Judge Flanagan to maintain the appearance of impartiality in the Voter ID case before his court,” Republican Party Communications Director Ben Sparks said.  “Governor Walker is listed as a defendant in the case, and by signing a petition to recall the Governor, Judge Flanagan made his bias clear.” 

And what about campaign contributions?

The ABA Journal reported on the ABA Midyear Meeting which hosted a public hearing on the issue of proposed changes to its model ethics rules, including requirements that law firms report their attorneys’ donations to judicial election campaigns and on how judges should use such information when deciding whether to recuse themselves. Justice at Stake’s Matthew Berg reported that his organization, in partnership with the Brennan Center for Justice at New York University School of Law, found that 83% of Americans believed that campaign contributions have a great deal or some influence on how judges make their decisions.  Almost everyone at some level will acknowledge that statistics like this suggest that the legitimacy of judicial decision making in the United States is imperiled but recognizing the issue and agreeing on the solution are two far different things.  

 
The current ABA Model Rules state that judges should recuse themselves when they receive contributions over a set amount to be determined by each state upon adoption of the Model Rules. A proposed change would instead require recusal when contributions can be considered “substantially important to the judge’s most recent campaign.” The ABA Journal also reported that:
 
“The proposal would also create a rebuttable presumption that judges know ‘the amount, source and value of direct and indirect campaign contributions’ if they are matters of public record and reasonably available.”
 
Another proposed change to a model Supreme Court rule which would require law firms to report information on judicial campaign contributions by their lawyers and employees to their state’s supreme court. There are some who suggest that the effect  of some of these approaches will make raising money ethically problematic in those jurisdictions where like it or not the law provides for judicial elections. Moreover with the advent of independent expenditures not all of which disclose who the donors are the rebuttable presumption is simply wrong. Judges or candidates may have a rebuttable suspicion at best. 

The Los Angles Court is among the nationst largest courts. It is far bigger and faces more complex problems than many state court systems. The Court Executive Officer John A. Clarke is among the most experienced court managers anywhere. But strong leadership cannot magically print money. California courts are hurting financially. The most recent announcement paints a very grim picture.

According to a memo issued  by Presiding Judge Lee Smalley Edmon and Court Executive Officer John A. Clarke, the court must make immediate spending reductions totalling $30 million, which will impact more than 350 employees and 50 courtrooms. Included in the coming round of cuts:

• The layoff of judicial assistants and courtroom assistants in 50 courtrooms.
• The elimination of 60 court reporter positions.
• $4.8 million in cuts from the juvenile courts.
• The layoff of an additional 100 court staff positions not associated with the 50 courtrooms already impacted.

“The budget crisis that began in fiscal year 2008-09 continues with little improvement,” writes Judge Edmon in the memo. ” Since that time, the California courts have been given permanant budget reductions totaling $652 million. Solutions are dwindling while reductions continue and uncertainty looms.”

Though the memo outlines a challenging situation, it does offer a glimmer of hope at the end. “The ultimate impacts of this blow will be determined by our response to it,” writs Judge Edmon. ” That is why, while we are greatly concerned about our future, we do not despair. Our Court has a history of working together in the best interests of justice; that history will serve us well as we all come to grips with the coming changes

The AJA blog tries to cover things of interest to judges all over. On Monday the Minneapolis Star Tribune published a commentary I wrote. The Commentary begins with this paragraph:

The letter was to the point: “Dear Judge, I am 16 and self-reliant. I have been employed in some way for nearly a year. I have been emotionally and psychologically damaged from the events surrounding and the aftermath of my parents’ divorce. Although I believe I am healed (not fully of course) there is an excess of emotional trauma I have to cope with. I have night terrors, anxiety, paranoia, depression, and insomnia and have trouble paying attention in school. These symptoms have all built up on each other since I was in sixth grade. Now I deal with pent-up repressed emotions. I am technically ‘homeless’ at the moment. I have been a pawn in this ridiculous legal battle between my parents for years and I am ready to voice my opinion and wishes. I would like to be emancipated, gaining full rights to myself.”

To read the full commentary (it is only 900 words) see:

http://www.startribune.com/opinion/commentaries/141250693.html

A day hardly goes by without some media attention of the effects of underfunding of state courts in the United States. The American Bar Association has championed the issue of the need for adequate and stable funding for state courts. Regrettably underfunding courts is not a peculiar phenomenon of state courts. Arguably the situation in British Columbia is every bit the crisis that exists in many states. The Globe & Mail reports that:

The number of cases on the edge of being thrown out because of unreasonable delays sits at more than 2,500. These involve defendants charged with everything from attempted murder to drug dealing to drunk driving. In some cases, the accused have committed other crimes while awaiting trial.

There were 109 youth and criminal cases stayed in 2011, which is almost double the number from the previous year. Despite hiring 14 new judges in the past two years, the province is still 17 judges short of 2005 levels, which is helping create historic backlogs. 

http://www.theglobeandmail.com/news/national/british-columbia/courts-bleeding-from-understaffing/article2340122/?utm_medium=Feeds%3A%20RSS%2FAtom&utm_source=Home&utm_content=2340122

Judge Jeff Tauber was a pioneer in creating and expanding drug courts. His  career has been marked by a deep commitment to court innovation.  More recently he has been involved in reentry courts and heads a group called Rententry Solutions. Their blog carried this story: 

President of the American Judge’s Association Speaks Out

Judge Kevin Burke, president of the American Judge’s Association, recently wrote a blog describing “the closing of the highly successful San Francisco Parole Reentry Court”. He wrote his blog, “San Francisco Reentry Court: May it Rest in Peace”, after reading a New  York Times article describing the closing of the Reentry Court  (see “Parole and Probation Courts in San Francisco are Closing After Budget Cuts” ). Judge Burke commenting on that New York Times article, wrote, ”The story speaks volumes about two things: (1) budget cuts to courts have real consequences and (2) there are emerging new ways that courts can reduce recidivism.

Let me speak to Judge Burke’s first point. In times of adversity, it is the problem-solving courts that are the first victims of cost-cutting. The argument, of course, is that the programs cost too much in resources and staffing. It’s an argument that has been debunked by numerous studies done on drug courts and other problem solving courts over the last twenty years (A recent national study by the Urban Institute found that for every $1 invested in Drug Court, taxpayers save as much as $3.36 in avoided criminal justice costs alone. When considering other cost offsets such as savings from reduced victimization and health care service utilization, studies have shown benefits range up to $12 for every $1 invested). It simply is no longer acceptable to cut one of the most beneficial, but least political aspect of the courts. Resources must be found to sustain and expand these critical programs.

Some argue that the case for reentry courts is less than compelling. That dealing with parolees and ex-prisoners is an executive and not a judicial function, and that they are best left to the jurisdiction of Corrections and Parole. But courts in California, as well as other states are getting into the prisoner supervison business,whether they like it or not. In California, legislation took effect last October, requiring county courts to sentence offenders (who would have previously been sent to prison) to county jail and then to supervise them in the community. States like California ( and those that will surely follow), now have the jurisdiction and the responsibility to rehabilitate and supervise the high-risk offender that are under their jurisdiction.

As San Francisco’s Reentry Court Judge over its fifteen month demonstration period, I have my own perspective on these issue. We recognized the danger and attempted to limit court costs. We reduced staffing to a bare minimum, using a retired part-time judge and clerk, and doing without a reporter, (except when requested by counsel). We held drug relapse, cogntive therapy and other program sessions in the court building and in many case, the closed courtroom itself to reduce administrative costs ( ”A minimalist reentry courts for recessionary times”). After our best efforts at reducing costs, we were still closed when the budget was cut.

What’s is of greatest interest, is Judge Burke’s second point; “there are emerging new ways that courts can reduce recidivism”. The success of the San Francisco Parole Reentry court has been documented (One Year San Francisco Reentry Court Report Card). The real success of reentry courts lies not in their cost savings, but in their  potential for salvaging damaged lives, restoring them to their communities and families, and preventing their future “return to prison”. The thing to keep in mind is that there are new ways for the court to deal with the returning prison offender, and that we have an moral obligation to investigate, develop, implement, and evaluate those court-based alternatives, as we have so successfully done in the past for drug courts.

Reentry Courts, ShowcaseJudge Kevin Burke, New York times article, President of American Judges Association, SAn Francisco Parole Reentry Court Leave a reply

Judge Wayne Gorman of the Provincial Court of Newfoundland and Labrador has written a piece entitled REASONABLE APPREHENSION OF JUDICIAL BIAS IN TRIAL PROCEEDINGS.  It addresses an important issue and is worth reading.  This article was based upon JUDICIAL CONFLICT OF INTEREST-TRIAL PROCEEDINGS