Governing Magazine reports:

In what some call an effort to demonize the Islamic faith, Alabama this fall will become the newest state where voters will deliberately banning their courts from considering foreign, international or religious law.

The ballot measure, “American and Alabama Laws and Alabama Courts Amendment,” would clarify the state constitution to say that that other state laws or foreign law cannot be used in ways that violate state law or rights under the Alabama Constitution or the U.S. Constitution. The unsuccessful precursor to the 2014 measure, also proposed in the legislature by Republican Sen. Gerald Allen, was an amendment for the 2012 ballot that would have explicitly banned state courts from implementing Islamic Shariah law.

Amos Toh, a co-author of a Brennan Center for Justice report that cast such bans as anti-Muslim and “thinly concealed attempts” to demoralize the faith, said the Muslim community remains the target in these wider, foreign law bans.

“The motivation underlying the passage of the legislation is very much a fundamental misunderstanding about Islam and a belief in stereotypes,” he said.

But Allen said the goal of the amendment is to “take every measure” to ensure that the United States and State Constitutions come first in the interpretation of our laws.

“This is not an effort to demonize any religion,” he responded in an email, “but rather an effort to ensure that the laws on which our great country was founded are never eroded.”

Six states have similar foreign law bans, most recently North Carolina’s last year. Missouri also passed a measure banning foreign law last year but Gov. Jay Nixon vetoed the bill because of its potential impact on international adoptions. Oklahoma’s voters approved a ban, which explicitly referred to Sharia law, in 2010. But this year it was struck down by a federal appeals court for being discriminatory. Arizona, South Dakota, Kansas, Louisiana and Tennessee all have passed measures banning implementation of foreign or religious laws. Still, the issue has permeated across the country: all but 16 states have considered such a measure in the past five years.

It does not happen much on appeal, but it does happen — and there are trial court judges who are more prone than others to raise an issue that the parties have not. So, when should it happen?

Thanks to judge Wayne Gorman, we know a little more about the Canadian approach to the issue.

In R. v. Mian, 2014 SCC 54, September 12, 2014, the accused’s acquittal was overturned by the Alberta Court of Appeal.  One of the reasons for doing so involved an issue that the parties had not raised, but was raised by the Court of Appeal. On appeal to the Supreme Court of Canada, the Court considered when an appeal court should raise an issue not raised by the parties and concluded that the Court of Appeal had erred in doing so in this case.

In reaching this conclusion, the Supreme Court set out “guidelines” for an appellate court to apply when determining whether to raise an issue on its own motion. Though these  guidelines are designed for appeals, they may also prove useful to trial judges who are attempting to determine if they should raise an issue at trial that the parties have not pursued. The guidelines are as follows (at paragraphs 57 to 59):

First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing (E.M.W., at para. 4). If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument.  At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings.

Second, I agree with the submission of the Crown that the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will be dependent on a number of factors, including the complexity of the issue and the obviousness of the issue on the face of the record.

Finally, I agree with the submission of the Crown that the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. As the Crown in this case says, this determination is properly in the hands of both the court and the parties. In my view, the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.  

Can domestic violence be so brutal that our nation needs to provide refuge for those who are subject to it?

The New York Times reports that the answer, after decades of litigation, is Yes:

The nation’s highest immigration court has found for the first time that women who are victims of severe domestic violence in their home countries can be eligible for asylum in the United States.

The decision on Tuesday by the Board of Immigration Appeals in the case of a battered wife from Guatemala resolved nearly two decades of hard-fought legal battles over whether such women could be considered victims of persecution. The ruling could slow the pace of deportations from the Southwest border, because it creates new legal grounds for women from Central America caught entering the country illegally in the surge this summer in their fight to remain here.

The board reached its decision after the Obama administration changed a longstanding position by the federal government and agreed that the woman, Aminta Cifuentes, could qualify for asylum.

Since 1995, when federal officials first tried to set guidelines for the immigration courts on whether domestic abuse victims could be considered for asylum, the issue has been reviewed by four attorneys general, vigorously debated by advocates and repeatedly examined by the courts. With its published decision, unusual in the immigration courts, the appeals board set a clear precedent for judges.

Continue reading here.

In an interesting and perhaps even landmark decision decided in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by federal prosecutors to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky’s Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, “either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.”  The Court held that “the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney’s liability for malpractice, (3) induces, by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel.”

The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today’s Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney’s duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter.

Thanks to the National Football League, our nation has seen a lot of discussion about domestic violence recently which actually, in the long run, might be good. Surely there are areas the criminal justice system can improve on.

So, when an article is published that suggests we need to be thoughtful about how to improve the criminal justice system, it is worth reading. The Criminal Law Professor’s blog has a posting on an article by Erin R. Collins (New York University School of Law) posted on SSRN:  The Evidentiary Rules of Engagement in the War Against Domestic Violence (New York University Law Review, May 2015, Forthcoming).

Here is the abstract:

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.

As first reported in the Sentencing Law & Policy blog, “The New Hampshire Supreme Court in In re Petition of State of New Hampshire, No. 2013-0566 (N.H. Aug. 29, 2014) (available here), declared that the Supreme Court’s Eighth Amendment ruling in Miller v. Alabama should be applied retroactively. Here is how the court’s ruling begins and ends:

In this Rule 11 petition, see Sup. Ct. R. 11, the State appeals the determination of the Superior Court (Smukler, J.) that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the imposition of mandatory life-without-the-possibility-of-parole sentences on juvenile offenders under the age of eighteen at the time of their crimes, applies retroactively to the respondents (petitioners in the trial court), Robert Dingman, Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review.  We affirm….

We conclude that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review.  Consequently, we find that the respondents are entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.  In light of our decision, we decline to address the respondents’ argument that we should “apply a broader retroactivity doctrine than the federal courts apply.”

Judicial independence from political interference seems like such an indisputable concept. It gets complicated when dealing with the independence of administrative law judges – as two cases (below) illustrate – and that is decidedly not good.

The Brennan Center reports:

“Gov. Terry Branstad’s [R] administration has changed a high-ranking administrative law judge’s position to ‘at-will’ status — a move that effectively strips the job of protection from political influence,” writes Clark Kauffman for The Des Moines Register. “‘This sets a really dangerous precedent,’ said Rep. Bruce Hunter, a Des Moines Democrat on the House Labor Committee. ‘When you turn this job into an at-will position, the judge is serving at the whim and desires of the governor rather than deciding cases on their merit.’” This marks the second time Branstad has attempted to make the administrative judgeship an at-will position. “In April 2013, the administration notified Joseph Walsh, then the chief administrative law judge at Iowa Workforce Development, that he would soon become an at-will employee. Walsh challenged the move, citing federal labor laws that prohibit such a move to protect the integrity of the judicial process. The administration backed down, but four weeks later included Walsh in a layoff of state workers, citing budgetary reasons. Walsh is now suing the state.”

Meanwhile, the Associated Press reports:

An immigration judge has sued the Justice Department, alleging that an order recusing her from hearing the cases of Iranian immigrants because of her involvement in the Iranian-American community is discriminatory.

Immigration Judge A. Ashley Tabaddor in Los Angeles filed the lawsuit Tuesday in federal court, claiming she was targeted in the 2012 recusal order after she attended the Roundtable with Iranian-American Community Leaders organized by the White House Office of Public Engagement.

Other immigration judges who were active in their religious and ethnic communities had not been subject to a blanket recusal order when Tabaddor, who was born in Iran and participated in dozens of public speaking engagements, was recused, the lawsuit said.

“Unless the agency is prevented from having unbridled power to issue recusal orders against immigration judges, based on their race, national origin, religion or perceived interests, the effect is that immigration judges will be improperly manipulated and intimidated by Justice Department officials, and their decisional independence will be severely threatened,” the suit said.

Kathryn Mattingly, a spokeswoman for the Executive Office for Immigration Review, which oversees the immigration courts, declined to comment on pending litigation or personnel matters. A message left at the Justice Department was not immediately returned.

Tabaddor, a former federal prosecutor, wants the order reversed and to be assigned cases randomly, as is done with other immigration judges. Since the order was issued, she has recused herself from eight cases. Officials did not accuse Tabaddor of bias but issued the order to avoid an appearance of impropriety, the lawsuit said.

Later in 2012, the office sought to recuse an Armenian-American immigration judge from cases involving Armenians if she attended a meeting with the U.S. Ambassador to Armenia, the lawsuit said.

“The whole theory of judges is to be blind,” said Ali Mojdehi, Tabaddor’s lawyer. “You are supposed to be calling balls and strikes without being partial toward who is in front of you, and this sort of order upends that notion that our system is based on.”

Immigration judges are encouraged to engage in civic life and the recusal order violates their right to participate in speaking and educational activities on their own time, the National Association of Immigration Judges said in a statement.

While the government once sought to appoint judges who reflected the country’s racial and ethnic.

The Brandeis Brief was a pioneering legal brief, claimed to have been the first in United States legal history to rely more on a compilation of scientific information and social science than on legal citations.

The Brief is named after Supreme Court Justice Louis Brandeis, who presented it in his argument for the 1908 US Supreme Court case, Muller v. Oregon. The Brief was submitted in support of a state law restricting the number of hours women were allowed to work.

The Brandeis Brief consisted of more than 100 pages – only two of which were devoted to legal argument. Are we now in an era of the Brandeis Brief on steroids?

Adam Liptak has an interesting sidebar in The New York Times:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

The full story is here.

Slate has an interesting commentary which begins:

In 2003, Supreme Court Justice Anthony Kennedy penned a great gay rights opinion in which he ruled that no state may constitutionally criminalize gay sex. The case dealt with two men, John Lawrence and Tyron Garner, who, the court informed us, were arrested while having sex in Lawrence’s apartment. In overturning the conviction, Kennedy slammed the state for degrading the “dignity” of Lawrence and Garner’s intimacy and relationship, describing their sex act as “but one element in a personal bond that is more enduring.”

But there’s a problem with these statements. Lawrence and Garner weren’t really having sex when the police entered the apartment. They weren’t even in a relationship. Kennedy rested his holding on fabrications—but through the power of the court, those fabrications were woven into law.

How could a Supreme Court justice be suckered into believing a set of facts with no bearing in reality? Actually, it happens pretty often. As Adam Liptak’s recent investigation illustrates, many of the justices have rather poorly calibrated bullshit detectors. Justice Samuel Alito recently cited a statistic about employee background checks that is, by most accounts, made up; Kennedy has relied on his intuition to assert that “an increasing number of gang members” are entering prison. Even Justice Stephen Breyer, whose usual fact fixation has led him to affix epically long appendices to multiple opinions, has gotten a little lazy, once citing a statistic that originated on a blog that has since been discontinued.

One possible culprit for the court’s sloppy fact-finding is the sudden profusion of amicus curiae (“friend of the court”) briefs. These briefs, written by third-parties with interests in the case, were once fairly limited; today, a high-profile case can draw dozens or hundreds of them. (Scores of groups filed amicus briefs in United States v. Windsor, from ex-gays to ex-ex-gays.) Nowadays, writing amicus briefs is nearly a profession in itself, as nonprofits, for-profits, cities, states, congressional representatives, and law professors compete to sway the court in their direction. Given the authors’ vested interest in a particular outcome, a number of these briefs are high on ideology, not so high on strict factual rigor.

It seems so simple:  In an increasing number of states there are laws that prohibit texting while driving, and in every state it seems like a good idea because accidents do occur when the driver is distracted.  But, when the law is the basis for not texting while driving, following the law may not be as clear as one might think.

From FindLaw:

Florida’s ban on texting while driving specifically notes that “a motor vehicle that is stationary is not being operated and is not subject to the prohibition.” As The Northwest Florida Daily News has explained, the law “allows texting while stopped at a red light, in a traffic jam or reporting criminal activity.”

In other states, the law is less clear. For example, California’s texting while driving prohibition merely states “a person shall not drive a motor vehicle” while writing or reading a text message (except if using a hand’s free operation). So is being stopped at a stoplight “driving” for purposes of this law? The California Highway Patrol seems to think so, telling San Francisco’s KGO-TV that it’s not OK to check email or read text messages while at a stoplight or in bumper-to-bumper traffic.

And even in states that explicitly allow or have a stoplight loophole in their texting-while-driving laws, any time being distracted by your phone causes you to impede traffic in a way that creates a dangerous condition for other drivers, such as not going on a green light, you can potentially be cited for distracted driving or even reckless driving.