Professor Steven D. Schwinn has an interesting post:

The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri’s statute banning flag desecration was facially unconstitutional. The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction. The court also rejected the arresting officer’s claim of qualified immunity.

The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law. The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer’s statement of probable cause to the county prosecuting attorney.

The ruling couldn’t have been a surprise to anyone, except possibly the officer and the county prosecutor. (The ruling included this telling sentence: “Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court’s decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.”) The court ruled that Missouri’s statute was facially unconstitutional under those cases.

The court also ruled that the officer did not enjoy qualified immunity. The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant. He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant.

But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate’s involvement did “not end the inquiry into objective reasonableness.” The court also noted that the standard in Malley v. Briggs survived Messerschmidt. The Malley standard says that there’s no qualified immunity where “if it obvious that no reasonably competent officer would have concluded that a warrant should issue.” Here, it was obvious.

The ruling upholds a lower court ruling granting attorney’s fees to the plaintiff.

The Silha Bulletin, published by the Silha Center for the Study of Media Ethics and Law, recently reported on two cases regarding online speech:

On January 7, 2014, the Virginia Court of Appeals ruled that Virginia law required social reviewing website Yelp.com to reveal the identities of anonymous online reviewers to a business claiming it was defamed by the reviews.  Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678 (Va. Ct. App. 2014).  Hadeed Carpet Cleaning alleged that Yelp reviews of its business contained false and defamatory statements.  Pursuant to its defamation claim, Hadeed subpoenaed Yelp for the names of the authors of seven reviews which described Hadeed’s poor service.  The court ruled that the reviews were “commercial speech,” and that Hadeed’s right to reputation trumped the reviewers’ right to anonymous speech.

Hadeed argued that the authors of the reviews had represented themselves to be customers of Hadeed by writing personal reviews of the business, but Hadeed could not verify in its records that the reviewers were actually former customers.  Based on this, Hadeed alleged that the reviews were false and defamatory, because if the reviewers were not customers, they falsely claimed to have received poor service.

Meanwhile…

Ninth Circuit Recognizes First Amendment Protections for Bloggers

On January 17, 2014, a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit ruled that bloggers receive the same First Amendment protections as institutional media in defamation lawsuits.  Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014).

The case involved a dispute between Kevin Padrick, a principal with Obsidian Finance, a firm that advises financially troubled businesses, and Crystal Cox, a self-described investigative blogger.

There may well be no other motion more likely to cause judges to quickly become defensive.  “How dare they question my fairness!”  “Never in my career has such a thing happened!”  Too often, when the judge asks a colleague, the response is reflexive:  “Hang in there.”

But, if each of us is committed to fairness – really committed – then openness and having a willingness to reflect are essential elements to being a good judge.

Ray McKoski has posted Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard (Arizona Law Review, Vol. 56, No. 411, 2014) on SSRN.

Here is the abstract:

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.

Josh Gerstein, who writes for Politico, had an interesting story about forgetting to record oral argument in the 7th Circuit:

A federal appeals court has ordered an unusual re-argument in a terrorism cases after clerks failed to record the public portion of oral arguments held in the case on Wednesday.

The Chicago-based U.S. Court of Appeals for the 7th Circuit announced Friday afternoon that it will try to make up for the error by hearing argument again next Wednesday in the case of Adel Daoud, who’s accused of plotting to set off a bomb at a Chicago bar in 2012. Prosecutors filed the appeal after a district court judge ruled that Daoud’s lawyers should be able to see classified surveillance that led to the investigation.

“By inadvertence, the device that makes a sound recording of the oral arguments of our cases was not turned on for the public argument in this case on Wednesday,” Judges Richard Posner, Michael Kanne and Ilana Rovner wrote in an order (posted here). “Since there is no other record of the oral argument, the court has scheduled a new oral argument for next Wednesday, June 11, 2014 at 2:30 p.m.”

The judges went on to say that no law requires appeals arguments to be recorded electronically or by a stenographer, so there’s “no legal obligation” to have the case argued again. But they suggest that the appearance of the recording screw-up persuaded them the argument should be re-done.

Read the full story here.

There are those who do not agree with Linda Greenhouse, but that misses the more fundamental point:  Ms. Greenhouse encourages us to think.

A recent New York Times op-ed by Ms. Greenhouse argues that the recent focus on political polarization in the Supreme Court obscures a deeper problem: “The problem is not only that the court is too often divided but that it’s too often simply wrong,” writes Greenhouse. “Wrong in the battles it picks, wrong in setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance.”

Greenhouse argues that the Court’s Republican majority “is committed to harnessing the Supreme Court to an ideological agenda . . . from the way the court invited and then accepted a fundamental challenge to public employee labor unions in Harris v. Quinn . . . to its brick-by-brick deregulation of campaign finance; to its obsession with race and with drawing the final curtain on the civil rights revolution.”

Greenhouse, therefore, does not view the polarization in our Supreme Court as a simple reflection of the polarization in our political branches:  “I wonder whether the Supreme Court itself has become an engine of polarization, keeping old culture-war battles alive and forcing to the surface old conflicts that people were managing to live with. Suppose, in other words, that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.”

On June 11, 2014, IAALS and the National Judicial College will co-host Fundamentals of E-Discovery for State Court Judges, a webcast available for state court judges at no cost.

Ten years ago, e-discovery was an issue that was seen as a most pressing for those in federal court. In 2006, the Federal Rules of Civil Procedure were amended to include electronically stored information (ESI) as a separate category of discoverable materials and to address some of the challenges related to electronic discovery. Since then, however, many states have changed, or are in the process of changing, their rules of civil procedure to accommodate e-discovery.  Moreover, the creation and discovery of ESI has become more and more prevalent in state court litigation. What began as a big-case phenomenon now has the promise of being an every-case phenomenon. While e-discovery continues to pose challenges for the civil justice system, and for individual courts, the judge who understands e-discovery may be uniquely positioned to guide the litigation in a way that works better for all litigants—and for the court itself.

This webcast will enable judges to:

1.         Adjudicate disputes involving ESI, including the identification, preservation, search, review, production, and admission of ESI;

2.         Apply ESI terminology such as metadata and native format correctly; and

3.         Use resources developed by IAALS to assist state court judges in effectively handling e-discovery.

The webcast faculty includes Justice Daniel J. Crothers (North Dakota Supreme Court), Maura R. Grossman, Esq. (Of Counsel at Wachtell, Lipton, Rosen & Katz), and Judge Thomas A. Zonay (District Court, Vermont), with an introduction by IAALS Executive Director Rebecca Love Kourlis.

This 90-minute webcast is free for state court judges and is scheduled for June 11, 2014 at 12:00 p.m. Pacific Time.

Learn more and reserve your spot today.

On May 28 the Louisiana Senate passed HB 96, a repeal of the state constitution’s mandatory judicial retirement age. The House had already passed it in April. With the Senate’s action, voters will be asked on November 4:

Do you support an amendment to remove the constitutional requirement that a judge retire upon attaining the age of seventy or, if his seventieth birthday occurs during his term, that he retire upon completion of that term? (Amends Article V, Section 23)

This will be the fifth time in the last 4 elections voters have had the chance to increase or repeal the mandatory judicial retirement age in their state; three prior efforts failed (Ohio 2011, Arizona 2012, New York 2013; details here and here) and Hawaii will be voting on an effort to increase their mandatory judicial retirement age from 70 to 80 this November as well.

According to the actuarial note on the bill, of the state’s 320 district, appellate and city judges, 39 are now between the ages of 65 and 70, while 56 are between 60 and 65.

Jacob Gersman writes in the Lawblog:

To err is human. To make a mistake and stubbornly refuse to acknowledge it — that’s judicial.

So says Judge Andrew D. Hurwitz of the Ninth U.S. Circuit Court of Appeals, who in a new essay argues that judges should get over their fear of fallibility.

His article — appearing in the Arizona Law Review — is timely. Law Blog and other legal observers have pointed to several factual holes, mostly of minor importance, in some recent Supreme Court opinions.

Judge Hurwitz’s intent isn’t to pile on, he says, but to encourage judges at all levels to be less shy about confessing to goofs:

My thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional “goof.” Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.

Most of the time, in his court at least, judges correct opinions without comment. Judge Hurwitz writes that when judges do explain their errors, they do so grudgingly and “go to extraordinary lengths to avoid changing the ultimate outcome.

The full article is here.

Shaun Martin, has this post at his California Appellate Report blog, critiquing a 4-3 decision of the California Supreme Court that distinguishes unreasonable mistakes from delusional ones for purposes of determining the availability of an imperfect self-defense claim

Delusional beliefs, the majority concludes, can only be raised as part of and pursuant to the limitations on the insanity defense.

Here’s Shaun’s excerpt from the case explaining the distinction:

[U]nreasonable self-defense, as a form of mistake of fact, has no application when the defendant’s actions are entirely delusional. A defendant who makes a factual mistake misperceives the objective circumstances. A delusional defendant holds a belief that is divorced from the circumstances. The line between mere misperception and delusion is drawn at the absence of an objective correlate. A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation is not delusional. One who sees a snake where there is nothing snakelike, however, is deluded. Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant‟s mind.

The Brennan Center reports:

A recent NPR story highlights new research by Maya Sen and Adam Glynn examining how the gender of a judge’s child could affect judicial rulings. “Sen and Glynn studied 2600 rulings of 240 judges on the US Court of Appeals and they looked to see if having a daughter made a difference to their rulings.” “We found having at least one daughter means that a judge will be about 7 percentage points more likely to vote in sort of a feminist direction on gender related cases,” said Sen.“Things like employment discrimination, pregnancy discrimination, abortion, Title IX, things like this.” The researchers found the effect was strongest among male Republican judges. The difference in rulings “emerges only for cases involving gender. It doesn’t emerge for cases involving bankruptcy or other kinds of the law.” NPR correspondent Shankar Vedantam concludes, “I think what the study is pointing to is the fallacy of imagining that judges rule on the bench without bringing their personal experiences to bear. The better question to ask might be, what biases do you want the judges to have, not whether the judges are biased at all.”