For people in the United States, we have never seen such an event:  a person is appointed to the Supreme Court and the Supreme Court itself is called upon to rule whether or not the nominee is eligible. But, the same is true for Canadians.  The ruling that is expected this Friday is simply unprecedented.

After sitting in limbo for months, Prime Minister Stephen Harper’s latest appointee to the Supreme Court of Canada, Justice Marc Nadon, will learn on Friday whether his prospective new colleagues deem him legally qualified for the job.

Justice Nadon, the first supernumerary (semi-retired) judge chosen for the Supreme Court, was tabbed in late September to fill one of the three Quebec seats, and sworn in a few days later.  But, he never heard a single case, because his appointment was quickly challenged in Federal Court by Toronto lawyer Rocco Galati, and then unanimously criticized by a Quebec National Assembly.  Justice Nadon immediately stepped aside, and the federal government asked the Supreme Court whether the appointment was legal.

For more on the story see this link to the Globe & Mail.  The story says, in part:

The ruling will have national-unity implications, at a time when Quebec is in the middle of a fraught election campaign. If the court rules that Federal Court judges are not legally qualified, it must also decide whether the federal government can rewrite the law without seeking provincial consent.

As a result, the case will be seen in Quebec “as a test of Harper’s brand of centralized federalism,” said Hugo Cyr, who teaches law at the University of Quebec at Montreal.

Carissima Mathen, a University of Ottawa law professor, said the case will be “tremendously exciting because the case has morphed beyond the initial question about statutory interpretation, to Quebec’s place in our legal system and to questions about constitutional amendments. It has the potential to be one of the most important decisions from the Supreme Court this year, and in the last several years.

Thanks to Judge Wayne Gorman for sending a case that is of interest to Canadian judges, but is equally important for United States judges.

It is never easy for a judge to determine who is telling the truth. We would like to think we have training and experience that gives us unique insight into who is telling the truth but studies have shown that judges are not any better than anyone else in ferreting out the truth.

In R. v. Fleig, 2014 ABCA 97, March 10, 2014, the accused was convicted of the offence of second degree murder in a trial before a judge sitting alone.  The accused appealed from conviction, arguing in part that the trial judge erred in his application of the W.(D.) test in determining if the accused’s evidence raised a reasonable doubt.

The Alberta Court of Appeal indicated, at paragraph 24, that the “primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other. W(D) proposes an approach intended to avoid dilution of the presumption of innocence and any shifting of burden of proof from the Crown to the accused. As noted in Vuradin, the “central consideration” is the principle of reasonable doubt.”  The Court held that though W.(D.) “is not to be applied in some mindlessly formulaic manner…a recital of the analysis in W(D) does not necessarily convert flawed reasoning into unassailable reasoning.”

In this case, the Court of Appeal allowed the appeal and ordered a new trial.  It held that the judge’s reasons did “not give assurance that a correct application of the burden of proof occurred.”  The Court of Appeal found error in the trial judge’s reasoning, including his reliance on the accused having a motive to lie because he “had a personal interest in the outcome of the case” (at paragraph 27):

The reasons of the trial judge demonstrate reviewable error in his crucial finding that Fleig’s version was unworthy of belief because Fleig had a motive to lie to extricate himself from guilt. The manner in which the trial judge dealt with Fleig’s motive for untruth was a form of circular reasoning which, at least in this case, cannot withstand scrutiny. He gave pride of place in his reasons to the following finding answering his rhetorical question “do I believe Mr. Fleig when he denies he had anything to do with Mr. Prevey’s murder”:

The answer to this question is no. There are many reasons for Mr. Fleig to be dishonest, not the least of which is that he has a personal interest in the outcome of this case.

The Court of Appeal concluded that though the “motive of any witness to give evidence is always a relevant consideration. It is not error to consider it. But motive to lie is, like demeanour of a witness, a factor that itself should be considered in light of other factors, and in light of the way the case unfolds in evidence and argument. Context is everything: R v Laboucan, 2010 SCC 12 at paras 18 to 22, [2010] 1 SCR 397. Taken entirely by itself, the motive of a person on trial for murder to give false evidence to extricate himself from his legal predicament could be matched with a similar motive to give true evidence if doing so would extricate him from his legal predicament. By itself it is usually a neutral consideration, although that may not always be the case.”

The Florida Supreme Court rejected the centerpiece of the 2003 medical malpractice overhaul law. The opinion accused the Legislature of creating an “alleged medical malpractice crisis” and held that the cap on wrongful death non-economic damages violates the state constitution’s equal protection clause.

The caps limited payments for pain and suffering to $500,000 or $1 million, depending on the circumstances and the number of people involved. The Supreme Court concluded the law unconstitutionally discriminates against “those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants.’’

The decision will effectively remove the cap on so-called “non-economic” damages when someone dies because of medical malpractice. Victims whose cases were resolved between the time the law took effect in late 2003 and today, however, will have no recourse. The Florida Justice Association estimates there are more than 700 medical malpractice cases pending statewide.

You can access the ruling at this link.

For several years, Val Gunderson was the Director of Communication for the Minnesota Judiciary.  She now is a freelance writer and the founder of Gunderdog Communications, LLC, a Twin Cities-based public relations and public affairs firm that serves clients around the country.

With her permission:

The Mouthing of Turkeys: Good Reasons to Communicate Clearly

 

March 8, 2014

I am fortunate to live in the woods where wildlife wanders by. It’s one reason I am well-acquainted with the sounds of turkeys. The other is that I spent part of my career in government.

This is not the slam you were expecting; without fail, I worked with smart, dedicated public servants. But each day, we all had to wade through a squalid swamp of acronyms, legalese and jargon. If you care about good, clear communication, spending a day deciphering or listening to this kind of drivel is like getting poked in the brain with a plastic fork. Repeatedly.

This unpleasant experience is not confined to the public sector. Bureaucratese is the official language of many corporate offices as well. Some might argue “bureaucratese” is a kind of jargon too, so let’s use a term everyone understands: gobbledygook. This helpful phrase was:

“…coined by Texas Congressman Maury Maverick ‘thinking of the old bearded turkey gobbler back in Texas, who was always gobbledy-gobbling and strutting with ludicrous pomposity. At the end of this gobble there was a sort of gook.’ In other words, gobbledygook is the mouthing of a turkey.” (Forbidden Words, by Keith Allen and Kate Burridge, 2006, Cambridge Press, p. 65.)

To his credit, Minnesota Governor Mark Dayton has decided to de-gobbledy the gook of his executive branch. He signed a Plain Language Executive Order, directing all state agencies “to use commonly used language, write in clear and concise sentences, and reduce the use of jargon and acronyms that make state government nearly impossible to understand.” The plain language standard is one all communicators should strive for: the audience must be able to understand it the first time they read or hear it. Amen! The order even comes with a handy addendum of examples.

The Plain Language Standard: The audience must be able to understand it the first time they read or hear it.

Minnesota’s efforts appear to be modeled after a national movement to promote plain language and a 2010 executive order signed by President Obama suggesting federal agencies do likewise. Unfortunately, this is the kind of verbiage one finds immediately after the federal order’s plain language requirement:

“…This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things…”

Gobble, gobble.

If you have ever wondered why we feel compelled to mimic the gibberish of large, wattled birds, researchers Allen and Burridge offer possible motivations:

“…The matters with which bureaucrats deal are mostly mundane and can be fully described and discussed in sixth-grade English. In order to augment their self-image, therefore, bureaucrats create synonyms for existing vocabulary using a Graeco-Latinate lexicon, seeking to obfuscate the commonplace and endow it with gravity… While jargons facilitate communication among in-groupers on the one hand, on the other, they erect communication barriers that keep out-groupers out.”

Sadly, we may unconsciously encourage the use of unclear and exclusionary communication. One study found that people were more likely to seek counseling from a professional who was introduced with abstract psychological jargon than one who was introduced with plain language.

When people rattle off things we don’t yet understand, we assume they know something we don’t. A little part of our brain says, “Oooo! They’re smart!” and a little part of the speaker’s brain recognizes this, causing the fluffing of tail feathers and a bit of strutting around.

Dayton’s and Obama’s plain language orders do not apply to the judicial or legislative branches, but I wish the rest of government would follow suit. Lawyers, in particular, tend to squawk in indignation at this suggestion. We need to write and talk this way! It’s based on hundreds of years of tradition and we went to law school to learn it!

Turkey teeth, says none other than the editor of Black’s Law and author of Legal Writing in Plain English, Bryan Garner:

“…The world is complex and so is the law. You might think that good legal writing is necessarily complex. You might even be tempted to make your writing more complex than necessary just to impress. But… if you want to write well, you’ll have to resist sounding like a machine.”

 The key to avoiding “oceans of linguistic dreck,” Garner says, is clear thinking.

Garner hits on the heart of the matter. Opaque, incomprehensible language—in the private and public sector — is often the result of thoughtful people trying hard to appease multiple interests. It is much more difficult to bushwhack through layers of dense, tangled interests in pursuit of a clear thought than it is to cobble something together that might make sense to a few people in the know.

Since I am not without sin, I have no sharp stones at the ready. I have authored my share of brain-poking blather. I use acronyms in meetings since, well, they take a lot less time to say. I learn the jargon of my clients’ industries. Yet if the editor of Black’s Law believes clearer thinking and communicating is possible in one the world’s most complicated institutions, we can all probably take it up a notch, can’t we?

“When Prosecutors Admit to Cheating:  Federal attorneys in San Diego knew they had gotten an unfair conviction.  And to their immense credit, they asked an appeals court to make things right.”

Andrew Cohen has this essay online at The Atlantic.  It says, in part, “Last fall, during oral argument (the video of which you can watch here), members of the federal appeals court bluntly urged Duffy over and over again to admit that the closing argument in the Maloney case was unprofessional, and perhaps unethical, and in any event a mistake of law.”

But, if you think everyone agrees with Mr. Cohen’s essay, think again.  Will Baude at The Volokh Conspiracy has a post critical of what he describes as the Ninth Circuit’s berating of an assistant US Attorney at oral argument into confessing error.  He notes that the court, contrary to his expectations, did write an opinion detailing the alleged wrongdoing, but notes that the court never actually says that the conduct was wrongful, and that the opinion will have no precedential effect.

Christopher Slobogin (Vanderbilt University – Law School) has posted Cause to Believe What?: The Importance of Defining a Search’s Object — Or, How the ABA Would Analyze the NSA Metadata Surveillance Program (Oklahoma Law Review, Forthcoming) on SSRN.

Here is the abstract:

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on the object of a search has particularly acute implications in the context of records searches. This article explores the ramifications of this gap in Fourth Amendment jurisprudence both generally and in connection with the NSA’s metadata program, with particular attention to how the American Bar Association’s Standards on Government Access to Third Party Records, the topic of the symposium for which this article was written, resolve the relevant issues.

In Miller v. Alabama, the United States Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.

Since that decision, state supreme courts and legislatures have grappled with how to deal with the implementation of the decision.

The Supreme Court of Nebraska issued three decisions applying the U.S. Supreme Court’s 2012 ruling in Miller v. Alabama, and you can access those decisions here, here, and here.

Many state constitutions have a provision in them that directly affords a right to education.  Over the last decade, several state supreme courts have grappled with how to decide cases that challenged school funding.

The cases are not easy.  There is a natural reluctance of judges to order the other branches of government to spend money.  Separation of powers and political question doctrines permeate the cases.  And then there is the political fallout.

The New Hampshire Supreme Court and the Washington Supreme Court, among others, took serious political heat for their conclusion that the schools were unconstitutionally funded.  And so we can now look to Kansas:

“Under the facts of this case, the district court panel did not apply the correct test to determine whether the State met its duty to provide adequacy in K-12 public education as required under Article 6 of the Kansas Constitution.”

So ruled a unanimous Supreme Court of Kansas in a 110-page per curiam decision issued today.

Thanks to Above The Law:

What’s a good excuse for getting out of jury duty?  Apparently not “having a heart attack RIGHT NOW!”

Access to Wisconsin’s online court records database soon could be limited.  Meanwhile, the Minnesota Supreme Court is deciding whether to start an inter branch constitutional fight as a result of opposition within the Minnesota judiciary to a statute that was passed in Minnesota which inhibits access to juvenile records on line.

The Wisconsin legislature is considering a bill that would prevent online access to court records in cases resulting in dropped charges or not guilty verdicts.  The Milwaukee Journal Sentinel reports:  Bill Lueders, president of the Wisconsin Freedom of Information Council, said the approach of the Wisconsin bill was “‘fundamentally wrongheaded’ because the solution to some people misusing information should not be to cut off access to that information for all people.”

During argument before the Minnesota Supreme Court, that was essentially the argument advanced by those who advocated that the Minnesota Judiciary ignore or refuse to implement the statute inhibiting electronic access to juvenile records.

So, how easy should it be to access court records?