Last week, Sam Ervin IV took the oath to serve on the North Carolina Supreme Court, following in the footsteps of his grandfather.  Sam Ervin Jr. was an associate justice when he was appointed to the Senate in 1954.

See more here.

Mike C. Materni has posted Rebooting the Discourse on Causation in the Criminal Law: A Pragmatic (and Imperfect) Approach (Criminal Law Bulletin, Volume 50 Issue 6, Winter 2014) on SSRN.

Here is the abstract:

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the concept of cause to its function within the criminal law, the Article maintains that “cause” should be informed to the idea of necessity, not sufficiency — nor any other idea of “cause,” no matter how strong or even better that idea might be from the perspective of metaphysics. The proposal advanced in this Article, while necessarily imperfect, gives coherence to a concept (that of but for cause) that, as of today, has been thought to be faulty and flawed to the point of inadequacy. Only by understanding causation within this framework it will be possible to move past the flawed dichotomy of “cause in fact” and “proximate cause” and focus on the more delicate policy issues that relate to culpability. While it is not the Article’s goal to be the last word on the subject — indeed, the Article expressly aims to be an initial building block — the Article does clarify several basic (and yet, until now, somewhat obscure) concepts that relate to causation in the criminal law, thus raising the level of discourse and providing a stronger foundation for further debate on the subject.

Jury nullification is interesting to a lot of law students and to a very small niche of the Bar. A few states instruct juries on their right to nullification, but the prevailing rule is say nothing.

So, perhaps this is just about Kansas, but it is interesting.  Recently, Professor Eugene Volokh wrote for the Washington Post:

From the Kansas Supreme Court’s decision in State v. Smith-Parker (Kan. Dec. 24, 2014):

The [jury] instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) …

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Both the wording of the instruction at issue in Lovelace — “must” — and the wording at issue here — “will” — fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

Nothing requires states to offer vanity plates…other than the desire to get additional revenue. But, they can cause legal problems too.

The Constitutional Law Professor’s blog reports:

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit’s divided panel opinion, authored by Judge Edward Pardo, reversed the district judge’s grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a “reasonable observer” of the license plate would believe it was the speech of the automobile’s owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court’s unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

The constitutional status of license plates – – – whether they are specialty, vanity, or state-mandated – – – has been fertile ground for First Amendment litigation. As we’ve discussed, the Fourth Circuit recently held that North Carolina’s provision of a “Choose Life” specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring “good taste”; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.

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.”