Today (at 12 p.m. PST | 1 p.m. MST | 2 p.m. CST | 3 p.m. EST), there will be a jointly sponsored webcast between IAALS and NJC on E-Discovery.  It is available at no cost and will have great information for state court judges.

For more information, and to sign up, go here.

Governor Jerry Brown’s latest budget proposal no doubt helps treat the California judiciary’s wounded budgets.

The Governor’s budget raises the state court system’s budget from last year’s $3.29 billion to $3.47 billion, with most of that increase headed to the 58 trial courts around California hit hardest by past cutbacks.  Courts in counties across the state have been forced to reduce public hours, lay off employees and shutter remote courthouses as a result of prior cuts that at one point exceeded $1 billion over several years

Meanwhile, things are not as good in Kansas. The Kansas Supreme Court plans to propose legislation this session that would allow it to tap its “electronic management filing fund” to fill a large hole in this year’s operating budget, according to Chief Justice Lawton Nuss.

Kansas courts are currently looking at a $3.6 million funding shortfall to finish out this fiscal year. If allowed to use its e-filing money, that would cover $3.1 million of the shortage, Nuss says. The courts would make up the rest primarily by not filling a large number of vacant positions. The court sent a letter out to judicial branch employees earlier this week explaining its decision. The letter notes diverting the money won’t hurt the continuing move to electronic filing because the court system can’t do any additional work on developing the system this year anyway.

For most judges, you rarely need to think about mens rea in deciding probable cause or in drafting jury instructions. But when you do need to think about it, the issue can be confounding.

One resource is a recent posting by Alex F. Sarch (University of Southern California – Center for Law and Philosophy) Condoning the Crime: The Elusive Mens Rea for Complicity on SSRN.

Here is the abstract:

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention that the underlying crime succeed, while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime — the so-called “derivative approach.” However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This paper develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than existing approaches. Moreover, it demonstrates that certain reforms to the current legal regime are warranted: most importantly, that a distinction between full and lesser complicity be recognized.

The Constitutional Law Professor’s blog reports:

In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state’s criminal harassment statute as applied to “conduct” that largely involved speech and often occurred using electronic means.

The statute provides that whoever “willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment.”

Of particular First Amendment concern is the statute’s provision that the

conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

The facts are rather chilling, escalating from incidents that might properly be called “pranks” to incidents that were clearly malicious. The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons. The defendants and their “handyman” placed a false advertisement on Craigslist, causing many people to arrive at the Lyons’ home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm. Next, there was an email entitled “Let the Games Begin!” that included the victims’ personal information, including social security number and banking information. Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home. And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15.

Read more here.

Chris Rickert is the metro columnist for the Wisconsin State Journal. He recently wrote a piece for the Journal that is well worth reading. His observations may apply elsewhere.

There’s nothing wrong with encouraging judges — or people in any profession — to retire by a specific age. Eventually, we will all need to take up gardening or bingo and let the young’uns take their shot at running the world.

But mandating a retirement age is silly, especially when Wisconsin is pretty loose with the requirements for elective office at the other end of the age spectrum. Basically, you have to be 18. For judges, you have to have at least five years as a licensed attorney.

Besides, increasing life expectancies and advancements in medical technology mean seniors today are more capable than ever of considering a complicated collective bargaining law or, say, placing their hands on another person’s neck in an alleged attempted throttling.

Last week, the state Supreme Court’s chief justice and, at 81, oldest member, characterized as anti-democratic an effort by state Rep. Dean Knudson, R-Hudson, to exercise a 1977 constitutional amendment that appears to require the Legislature to set a mandatory retirement age of no younger than 70 for judges. Specifically, Knudson wants them gone by 75.

Shirley Abrahamson is also opposed to a proposed constitutional amendment that would allow the high court to elect its own chief justice. Now, the top spot goes to the justice with the most time on the court.

“To the extent that either enactment affects presently sitting judges and justices, it ignores and overturns the vote of the people,” she told this newspaper.

She makes a fair point.

Of course, the “vote of the people” is at least partially frustrated when the justices the people elect can’t pick their own leader. It’s also arguably frustrated by 37 years worth of inaction on a constitutional amendment approved by voters and the Legislature.

How that amendment got so wantonly ignored remains a mystery.

According to news coverage from the time, setting a retirement age was a noncontroversial part of a broader set of reforms to the state’s court system, also passed by referendum. This newspaper framed it as a way for lawmakers to raise the retirement age from what was then a constitutionally mandated 70 years old.

To further complicate matters, a 1984 law repealed the mandatory retirement age for judges. The problem is that no law can override a constitutional mandate, and drafting notes from when the legislation was being written suggest the legislation was constitutionally suspect.

After that, the question of mandatory judicial retirement ages appears to have fallen victim to the legislative version of, ahem, a senior moment.

Republicans who back a mandatory retirement age for judges will be accused of two things: ageism and — because the two oldest members of the Supreme Court are part of its three-justice liberal wing — playing politics.

They can’t do much about the second, but they can blunt the first by bringing in a young member or two who may have faced age discrimination, too – just on the other end of the spectrum.

Forced judicial retirements aren’t about discriminating against the old, they could argue, they’re about expanding job opportunities for the young!

In the ABA Journal, Mark Walsh previews the oral argument in Reed v. Town of Gilbert, in which the Court will consider “the role of a governmental motive or purpose in weighing whether a sign code is content-neutral.”

Courts are sometimes required to make decisions that no matter what the outcome are just plain sad. That is what has happened in Connecticut. Connecticut’s highest court last week ordered a 17-year-old girl suffering from Hodgkin’s lymphoma to undergo cancer chemotherapy against her will and the wishes of her mother.

Michelle Edgely (University of New England (Australia) – School of Law) has posted Why Do Mental Health Courts Work? A Confluence of Treatment, Support & Adroit Judicial Supervision (37 International Journal of Law & Psychiatry 572-580) on SSRN.

Here is the abstract:

The article contributes to the understanding of ‘what works’ in mental health courts (MHCs). There are now almost 400 MHCs in the US and more worldwide. A substantial body of evidence demonstrates that MHCs can succeed in reducing recidivism among offenders who suffer mentally disorders. This article argues that MHCs succeed when they have achieved the right confluence of essential elements, including providing evidence-based treatment and psychosocial supports and using adroit judge-craft.

After a brief review of some of the studies demonstrating MHC success, this article discusses the research into the necessary foundations of rehabilitation programs. It is argued that, although treatment and psychosocial services should be supplied within an evidence- based framework, neither of two leading conceptual models – Risk-Needs-Responsivity and the Good Lives Model – are empirically proven with offenders who suffer from mental disorders. Despite the absence of proof, the Good Lives Model is argued to be appropriate for MHCs because it is normatively consonant with therapeutic jurisprudence. The MHC judge is another essential element. The judicial role is assayed to elucidate how it functions to promote the rehabilitation of offenders with mental disorders. It is argued that the role of the MHC judge during supervisory status hearings is to establish a therapeutic alliance and practice motivational psychology with each MHC participant.

The ABA Tech Journal Monthly reports:

The Atlanta-based 11th U.S. Circuit Court of Appeals is warning users of its electronic filing system about a pop-up “survey” that is actually a virus. According to the court, a lawyer reported that while he was logged into the electronic filing system, a popup message invited him to take a survey from the bankruptcy court, the South Florida Lawyers blog reports. The lawyer clicked “OK” and his computer was infected with the virus.

“Please know that we do NOT currently have a survey being sent through CM/ECF or any other source,” the 11th Circuit announcement says. “If you receive an email or pop-up requesting your participation in a survey from our court, do not open it. Please delete it.”

Charles Hall, a spokesperson for the Administrative Office of U.S. Courts, tells the ABA Journal that the courts have received only one complaint about the virus, which is not generated by the federal courts’ information technology system.

“Attempts to hack computer systems are widespread across the Internet, and the judiciary devotes substantial resources to protecting the integrity of its IT systems,” Hall said. “In this case, the virus scheme is not connected with the judiciary’s IT systems.”

The WSJ Law Blog reports:

“I want to bring blind justice to the Michigan Supreme Court,” said Detroit-area attorney Richard Bernstein as a Michigan Supreme Court candidate. Legally blind since birth, Mr. Bernstein makes history as the first blind person to serve on the state’s highest court.

According to an Associated Press profile:

Bernstein is widely known in southeastern Michigan because his family’s personal-injury law firm regularly advertises on TV. He spent more than $1.8 million of his own money to campaign for the state Supreme Court. His slogan? “Blind Justice.”

As one of only two Democrats on the seven-member court, Bernstein is unlikely to crack the court’s conservative sway. But he’s still expected to make a difference.

“His own experience and background is different than anyone else’s at the conference table,” said Justice Bridget McCormack, who was a law professor before being elected in 2012. “Richard knows a whole lot about disability law the rest of us don’t. We don’t get a lot of those cases. Who knows how it will be useful?”

In November, he was elected to an eight-year term. As the AP notes, he’s not the first blind judge to sit on the highest court of a state.

Missouri Supreme Court Justice Richard B. Teitelman, who is legally blind, was appointed to the court in 2002. On the federal level, there’s David Tatel, a blind judge serving on the U.S. Court of Appeals for the District of Columbia Circuit.