The Supreme Court of Canada ruled last week that the Saskatchewan Public Service Essential Services Act (PSESA), which limited the ability of public sector employees who perform essential services to strike, violated the Canadian Charter of Rights and Freedoms. At the same time, the court upheld an act that increased the level of required written support, and reduced the time period for receiving support, to certify a union.

In striking the PSESA, the court held that the Canadian Charter of Rights and Freedoms, Section 2(d), free association, protects a fundamental right to strike, and that the PSESA wasn’t saved by Section 1, the “reasonable limits” provision. The court wrote that the right to strike is “an indispensable component of” the right to bargain collectively, and “essential to realizing” the values of “human dignity, equality, liberty, and respect for the autonomy of the person and the enhancement of democracy.” The court also noted that “international obligations also mandate protecting the right to strike . . . .”

The court said that the breach of Section 2(d) wasn’t justified by Section 1, which “guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The court wrote that the maintenance of essential public services is obviously “pressing and substantial,” but that the PSESA wasn’t sufficiently tailored. In particular, the court said that the PSESA allows too much given in defining “essential services” and the employees who perform them.

Two justices dissented, arguing that the political branches should have the flexibility to determine the scope of workers’ ability to strike.

The title of this post is the title of a paper by Melissa Hamilton, now available via SSRN.

Here is the abstract:

Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points.  Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified?  The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned.  This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.

As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct.  This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism.  Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming.  A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments.  Various criminal history measures pervade these newer evidence-based practices as well.

Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments.  Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.

Ric Simmons (Ohio State University (OSU) – Michael E. Moritz College of Law) has posted The Missed Opportunities of Riley v. California (Ohio State Journal of Criminal Law, Vol. 12, No. 253, 2014) on SSRN.

Here is the abstract:

In the landmark case of Riley v. California, the Supreme Court prohibited law enforcement officers from searching a defendant’s cell phone as part of a search incident to a lawful arrest. The unanimous decision was widely regarded as a major victory for defendant’s rights, but in fact the Court missed two significant opportunities when deciding this case. First, the Court failed to repair the critically flawed search incident to arrest doctrine, and second, the court failed to provide useful guidance for law enforcement officers faced with emerging technologies. Like the Court’s other search incident to arrest opinions, Riley’s rationale was confused and inconsistent. And like the Court’s other Fourth Amendment technology cases, Riley’s arguments focused too much on the technical details of a specific new technology and not enough on basic Fourth Amendment principles. As a result, the true legacy of Riley is likely to be further confusion both in rules and in underlying doctrine.

Thousands of people arrested in Connecticut for marijuana possession now have the right to get their convictions erased after the state Supreme Court ruled Monday that the violation had been downgraded to the same legal level as a parking ticket.

The 7-0 ruling came in the case of former Manchester and Bolton resident Nicholas Menditto, who had asked for his convictions to be overturned after the Legislature decriminalized possession of small amounts of pot in 2011.

“It’s a topic multiple states will have to be facing,” said Aaron Romano, Menditto’s attorney. “Because marijuana is being decriminalized across the United States, this issue needs to be addressed.”

Colorado, Washington state, Washington, D.C., and Alaska have legalized the recreational use of pot. Oregon’s law legalizing it takes effect in July. Connecticut and 22 other states allow marijuana for medicinal purposes, and 18 states have decriminalized possession of varying amounts.

Last year, Colorado’s second-highest court ruled that some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the state law that legalized recreational marijuana. Officials in the other states are grappling with the issue.

View Full Story from the Hartford Courant

The thought that we prefer to let the guilty man go free rather than convict the innocent is pretty axiomatic in criminal justice parlance, but do we really believe that?

Nicholas Scurich (University of California, Irvine) has posted Criminal Justice Policy Preferences: Blackstone Ratios and the Veil of Ignorance (Stanford Law & Policy Review, Vol. 26, p. 23, 2015) on SSRN.

Here is the abstract:

Erroneous convictions or erroneous acquittals are an inevitable aspect of the criminal justice system. Jurists have historically considered errors of the former type to be more egregious, while college undergraduates seem largely indifferent between the two types of error. This article reports the results of an original empirical study that elicited criminal justice error preferences from an online sample of over five hundred adult United States citizens. Consistent with previous research, participants were asked, as a matter of policy, which type of error is worse and to what extent that type of error is worse than the other. Participants’ error preferences were then elicited beneath a Rawlsian veil of ignorance. The veil of ignorance “universalizes” judgments by forcing individuals to evaluate a policy without knowledge of how it would affect him or her personally. Thus, participants were asked whether they would personally prefer to endure the consequences of an erroneous conviction vis-à-vis an erroneous acquittal. As a policy matter, a majority of participants indicated that erroneous convictions are worse than erroneous acquittals, though there was considerable variability as to how much worse. Over 25% of participants effectively switched their preference when the implications of such a policy applied to them personally. These findings have implications for the administration of substantive law and criminal justice policy, as well as policy discussions more generally.

WASHINGTON (The Borowitz Report) – After a challenging week for the legislative body, the approval rating of the United States Congress has shrunk to a point where it is no longer detectable by the technology currently available, a leading pollster said on Friday.

Davis Logsdon, who heads the highly regarded Opinion Research Institute at the University of Minnesota, said that his polling unit has developed highly sensitive measurement technology in recent years to gauge Congress’s popularity as it fell into the single digits, but added that “as of this week, Congress is basically flatlining.”

“At the beginning of the week, you could still see a slight flicker of approval for Congress,” he said. “Then—bam!—the lights went out.”

Logsdon said, however, that people should resist drawing the conclusion that Congress’s approval rating now stands at zero. “They may have support in the range of .0001 per cent or, say, .0000001 per cent,” he said. “Our equipment just isn’t advanced enough to measure it.”

Logsdon said that the swift descent of Congress’s approval rating below detectable levels has surprised experts in the polling profession. “A couple of years ago, when they shut down the government, I wondered, What could they possibly do to become less popular than this?” the pollster said. “Now we know.”

A Washington state florist who refused to provide flower arrangements for a gay wedding “because of [her] relationship with Jesus” violated the state’s anti-discrimination and consumer protection laws, a judge recently ruled.

“Religious motivation does not excuse compliance with the law,” Benton County Superior Court Judge Alexander C. Ekstrom said in his 60-page opinion. “In trade and commerce, and more particularly when seeking to prevent discrimination in public accommodations, the courts have confirmed the power of the legislative branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”

Professor Eugene Volokh recently highlighted an interesting first amendment case involving gag orders. There may be times when a gag order is appropriate, but if you are a judge contemplating issuing one, be aware that the gag order itself can create a whole new set of problems.

A New Jersey federal court allows the lawsuit — brought by Paul Nichols, a Bergen Dispatch reporter who wants to interview one of the litigants — to go forward, and seems sympathetic to Nichols’s First Amendment argument, though the case is still at a preliminary stage and no declaratory judgment has been issued. Here are some excerpts from that opinion, Nichols v. Sivilli (D.N.J. Dec. 19, 2014):

Plaintiff Paul Nichols is a reporter for the Bergen County Dispatch who brings a First Amendment challenge to a gag order … issued by Judge Nancy Sivilli in Myronova v. Malhan, a divorce and custody suit pending in the family division of the Essex County Superior Court. Nichols wishes to interview one of the parties in Myronova v. Malhan, but is unable to because the Gag Order restrains all parties to the litigation from discussing any aspect of the divorce proceedings.

In order to understand Nichols’ First Amendment challenge, the Court first must provide a brief overview of the divorce proceedings that are the subject of the Gag Order. In 2011, a New Jersey court granted full child custody to Alina Myronova and stripped all custody rights from her husband, Surrender Malhan, after Myronova alleged that Malhan was an unfit parent.

According to the [Complaint], the state court stripped Malhan of his custody rights on a mere two hours’ notice without affording him an opportunity to refute Myronova’s allegations. For example, the court prohibited Malhan from cross examining Myronova or presenting physical evidence — such as bank records or video recordings — that would further demonstrate his parental fitness. The [Complaint] alleges that after the 2011 proceeding, Myronova retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time, “Malhan was never granted a plenary hearing.”

Malhan, along with five other parents, subsequently filed a class action lawsuit in this District that is currently pending before the Honorable Freda Wolfson: Edelglass, et al., v. New Jersey, et al.. The class action suit alleges that the New Jersey family court system fails to provide adequate due process rights to parents in child custody proceedings. In February 2014, a New Jersey affiliate of a major news broadcasting company interviewed Malhan and two other Edelglass plaintiffs regarding their experiences in family court and their allegations that the family court deprived them of their constitutional rights. In response, Myronova initiated proceedings against Malhan, which resulted in Judge Sivilli entering the Gag Order. The Gag Order reads, in pertinent part:

All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties’ marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties’ divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party.

In addition to restricting their ability to discuss their divorce or related litigation with other individuals, the Gag Order also prohibits the parties from conveying such information on social media. The Gag Order also instructs Malhan to remove all divorce-related information from his blog.

In May 2014, Malhan filed for a temporary restraining order in Edelglass seeking to enjoin enforcement of the Gag Order. In a May 8, 2014 Order, Judge Wolfson expressed her view that the Gag Order “raises serious constitutional concerns” and that Judge Sivilli “failed to meaningfully weigh Plaintiff’s First Amendment rights.” She nonetheless denied Malhan’s motion because the relief he sought was barred by the Rooker-Feldman doctrine [which limits federal intervention in state proceedings -EV]. Malhan suffered another defeat when the Appellate Division of the Superior Court of New Jersey denied his application for an interlocutory appeal of the Gag Order.

After Malhan failed to enjoin enforcement of the Gag Order, Nichols filed the instant action in this Court.2 Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, “are a matter of public interest.” Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings.

The [Complaint] alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake. According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order “based on a generalized finding that publicity in family court is not in the best interests of children.” … Nichols seeks … a declaratory judgment that the Gag Order is unconstitutional ….

The [defendants’] motion to dismiss contends that the Gag Order is not a prior restraint and therefore must only be “reasonable,” a standard that, according to Defendants, is easily met here. In contrast, Nichols argues that the Gag Order is a prior restraint subject to the most exacting form of judicial scrutiny.

Once a court determines that a restriction on speech is a prior restraint, there will be a heavy presumption against its constitutional validity.. While the precise differences between a prior restraint and an ordinary restriction on speech are notoriously muddied, at the very least, prior restraints can be understood to “encompass[ ] injunctive systems which threaten or bar future speech based on some past infraction.”

The situation in this case, however, is less straightforward because the Gag Order does not impose any restrictions on Nichols; it restricts only the speech of Malhan, whom Nichols wishes to interview. [Footnote: Even though Nichols is not the subject of the Gag Order, his inability to obtain information from Malhan meets Article III’s injury-in fact-requirement.] The Third Circuit is silent on whether a gag order imposed on a trial participant can operate as a prior restraint on the press. Other Circuits that have addressed the issue are in disagreement. Compare In re Dow Jones & Co., Inc. (Dow Jones & Co.), 842 F.2d 603 (2d Cir. 1988) (gag order on trial participant does not operate as a prior restraint on the press), and Radio and Television News Assoc. of Southern California, 781 F.2d 1443 (9th Cir. 1986) (same), with Journal Publishing Co., v. E.L. Mechem, 801 F.2d 1233 (10th Cir. 1986) (gag order on trial participant is a prior restraint on the press presumed to be constitutionality invalid), and CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (same).

The Court need not choose which side of the split to follow because even assuming that the Gag Order is not a prior restraint on the press, Nichols has sufficiently pled that the Gag Order is not justified. See Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920 (5th Cir. 1996) (“We need not decide whether the confidentiality order constitutes a prior restraint on the news agencies because, even assuming that the order is not a prior restraint, its effect on the news agencies’ First Amendment rights must still be justified.” (citing Dow Jones & Co., 842 F.2d at 609)). The Dow Jones & Co. Court, which found that a similar gag order was not a prior restraint on the press, upheld the order only after concluding that it was justified. First, the court noted that the judge who issued the gag order examined specific circumstances unique to the case. For example, the judge found that press leaks attributable to the government revealed the identities and testimony of grand jury witnesses, which constituted a “shameful abuse of grand jury secrecy” that jeopardized the Sixth Amendment rights of the criminal defendants. Moreover, the judge issuing the gag order “properly recognized [that] before entering an injunction against speech he had to explore whether other available remedies would effectively mitigate the prejudicial publicity.” Dow Jones & Co., 842 F.2d at 609, 612 (citing Nebraska Press, 427 U.S. at 562).

How much of an activist should a trial judge be?

Canada and the United States have a number of similarities in the roles judges should play. Both nations frown upon judges doing their own investigation, but at least in the United States there are notable examples of the United States Supreme Court. These issues are not always easy for a judge at any level to deal with. Among other things, the ready access to the Internet makes it tempting to “just find out a little more.”

In R. v. Bornyk, 2015 BCCA 28, January 23, 2015, the accused was charged with the offence of break and entry.  The key evidence against him was a fingerprint found inside the house.  The Crown called an expert fingerprint examiner who testified that the fingerprint had been deposited in the house by the accused.  Submissions were made and judgment reserved.

 

THE TRIAL

The trial then took a bizarre twist. After reserving judgment, the trial judge sent counsel four articles critical of the accuracy of fingerprint analysis.

After hearing further submissions, the trial judge entered an acquittal. In doing so he referred to the articles he had produced and his own comparison of the known print with the latent print.

 

THE APPEAL

The Crown appealed from the acquittal.  The appeal raised two issues: (1) did the trial judge err “in relying upon independently researched literature that was not properly introduced by either party, not tested in evidence, and not put to the fingerprint witness”; and (2) did the trial judge err “by engaging in his own unguided comparison of the latent print and known print.”

 

THE COURT OF APPEAL’S DECISION

The British Columbia Court of Appeal held that “the judge erred in both manners asserted by the Crown.”

The Court of Appeal noted that it “is basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken.” The Court of Appeal indicated that it was “apparent from the excerpts found in the reasons for judgment and the descriptive titles of the articles that the articles uncovered by the judge are discussions on the subject of fingerprint analysis, including opinion.  As articles commenting on forensic science, their contents are not matters of which the judge could take judicial notice.  It is thus axiomatic that it was not open to the judge to embark on his independent investigation.”

The Court of Appeal concluded, at paragraph 11, that the trial judge “stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of ‘advocate, witness and judge’”.

The Court of Appeal also concluded that the trial judge erred in “conducting his own analysis of the fingerprints” (at paragraphs 18 and 19):

…the judge also erred by conducting his own analysis of the fingerprints, absent the assistance of the expert witness. The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment:  Kelliher (Village) v. Smith, [1931] S.C.R. 672; R. v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.

The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict.

Few people are more dedicated to improving how courts deal with self-represented litigants than Richard Zorza. He had this recent post on his blog:

Do the New Judicial Ethics Rules on SRLs Increase Complaints About Judges

I have recently been involved in a discussion about whether rules authorizing judges to be more engaged with litigants in self-represented cases might increase complaints about judges, specifically for their failure to be more engaged.

These rules (or rather usually Comments to the Codes of Judicial Conduct (memo at link not necessarily up to date) vary from state to state, but make clear that judges “may” engage in certain forms of engagement, such as asking questions and making referrals, without being considered non-neutral.

Some people are fearful that such language will increase complaints because litigants will feel that judges should have done the things and failed to do so.

Probably the most important point to make in response to these concerns is that while many states have now passed some form of this language, we have heard of no such increases reported in any states.

Some have also made the excellent point that since these rules clarify that these practices, which most litigants find helpful, are permitted, it is likely that they may reduce, rather than increase the number of complaints.

Moreover, given that the language tends to the use the word “may” or equivalent, they tend to create discretion, rather than reduce it, thus making the chance of such complaints.

There is one caveat, which may be significant in some cases.  Since the rules/comment changes make clear that judges do have discretion to take such engaged steps, any judge who affirmatively refuses to consider the possibility that such steps would be appropriate in a case is engaging in an abuse of discretion.  “No, I am not allowed to do that.”  “The rules stop me doing that.” That is where the appellate cases are likely to come from.  Of course, a judge who explains why he does not think such a use of discretion in the circumstances of the case is appropriate will be well protected.  As always, transparency is best.