The California State Supreme Court’s ethics advisory committee wants the court to prohibit California judges from membership in the Boy Scouts because the 2.7 million-member youth organization bars gays and lesbians from becoming troop leaders.

If the Supreme Court agrees, California will join 21 other states whose judicial ethics codes have antidiscrimination provisions that forbid judges from affiliating with the Boy Scouts.

Banning scout membership would “promote the integrity of the judiciary” and “enhance public confidence in the impartiality of the judiciary,” the ethics committee said.  Deron Smith, a spokesman for the Boy Scouts said the Scouts “would be disappointed with anything that limits our volunteers’ ability to serve more youth . . . [t]oday, more than ever, youth need the character and leadership programs of Scouting.”

In 2003, the California Supreme Court ordered judges to disclose any connections to the Boy Scouts in cases involving gay rights and related issues, and to disqualify themselves for any conflicts of interest.

The deadline for comment is April 15, 2014.  The invitation to comment is posted on the California Courts website at http://www.courts.ca.gov/policyadmin-invitationstocomment.htm.

Comments should be sent to Ms. Camilla Kieliger, Administrative Office of the Courts, Legal Services Office, 455 Golden Gate Avenue, San Francisco, California 94102, the committee said.  The committee is chaired by Justice Richard Fybel of the Fourth District Court of Appeal, Div. Three.

Ham Sandwich Nation: Due Process When Everything is a Crime

Glenn Harlan Reynolds

University of Tennessee College of Law

January 20, 2013

University of Tennessee Legal Studies Research Paper No. 206

Abstract:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

It seemed like such a brilliant idea.  If you can post “No Trespassing” or “No Weapons” signs, why not just prohibit the police?

Thanks to Judge Wayne Gorman, there is an interesting case from British Columbia:

In R. v. Felger, 2014 BCCA 34, January 29, 2014, the accused Mr. Felger owned and operated a store (DaKine) located in Abbotsford, British Columbia, which “sold a variety of marihuana-related products.  Mr. Felger employed Ms. Healy at the store.  On his store window, adjacent to the door, Mr. Felger posted a sign which read”:

No Police Officers Allowed In The Store Without A Warrant. Especially Badges #315 & 325.

Undercover police officers entered the store and purchased marihuana on five separate days.  Mr. Felger and Ms. Healy were jointly charged with three counts of trafficking in marihuana.

At trial, the accused were acquitted. The trial judge held that Mr. Felger had by posting the sign maintained “his privacy rights in the premises with respect to police officers” despite operating a store to which the public had access.  The trial judge concluded that the evidence obtained by the undercover officers should be excluded because it had been obtained in breach of section 8 of the Canadian Charter of Rights and Freedoms.

The Crown appealed. The British Columbia Court of Appeal indicated that the question raised by the appeal was “whether an individual may create a right to privacy under s. 8 of the Charter, in a publicly accessible retail establishment, by posting a sign prohibiting entry by police officers.”

The appeal was allowed and a new trial ordered. The British Columbia Court of appeal concluded that the accused “had no reasonable expectation of privacy in conducting the business of the DaKine store, regardless of whether Mr. Felger had excluded police officers from the premises or not” (at paragraph 50):

As noted already, the question of the reasonableness of the expectation of privacy also incorporates a balancing of societal interests in privacy with the legitimate interests of law enforcement (Tessling, at para. 17). In my view, in balancing those societal interests, an objectively reasonable expectation of privacy in a retail store could not be achieved simply by posting a sign excluding law enforcement officers. This would give too much weight to the subjective aspect of the s. 8 analysis. Privacy for the purposes of s. 8 must be assessed on an objective basis: would an objective observer construe the activities as being carried out in a private manner?  In this case, and considering that s. 8 “protects people not places”, the overwhelming evidence is that the activity of selling drugs was done in a public setting. There is an element of artifice in the respondents’ claim to privacy in a place in which they were publicly and brazenly selling marihuana, conduct that is currently unlawful. I conclude that the respondents had no reasonable expectation of privacy in conducting the business of the DaKine store, regardless of whether Mr. Felger had excluded police officers from the premises or not.

Justice Antonin Scalia told law students in Hawaii this week that the Supreme Court’s Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.

Speaking at the University of Hawaii law school, Scalia responded to a question about the 1944 ruling, which upheld an executive order that required the detention of Japanese Americans during World War II, the Associated Press reports.

South Carolina legislators have re-elected Jean Toal as chief justice of the South Carolina Supreme Court.

State lawmakers held a joint session Wednesday to decide if Toal or Associate Justice Costa Pleicones would lead the South Carolina Supreme Court.

In a 95 to 74 vote, lawmakers selected Toal, 70, to serve only two years of a 10-year term since she’ll be reaching the mandatory retirement age of 72 shortly.

South Carolina uses a rare judicial selection system in which the legislature elects the state’s chief justice.

If you give a test and, out of your 51 students, 42 of them flunk the test, is there a problem with the students or the test?

A recent report by the Center for Public Integrity created just that dilemma. The study gave an “F” to 42 of the 50 states and the District of Columbia.  The report found that judges in three states — Montana, Utah and Idaho — are not required to file any disclosure reports at all.  And, the Center’s report found 35 examples of questionable gifts, investments overlapping with caseloads as well as other entanglements.

California’s financial disclosure requirements for its judges are among the strongest in the nation.  The state even posts online the reports about judges’ income and investments — a level of transparency that almost every other state refuses to meet.  Yet California did not receive an “A.”

While it might be easy for judicial leaders to conclude the problem is with the test, a more thoughtful response might be appropriate.  Public trust in the judiciary is imperative.

Reflection, then, can start with reading a detailed, new report by the Center for Public Integrity on judicial financial disclosure.

Jonathan Rapping (Atlanta’s John Marshall Law School) has posted Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions on SSRN.

Here is the abstract:

This paper discusses the power of implicit racial bias (IRB) in driving unjust, racially disparate outcomes in our criminal justice system and examines the role of the defender committed to racial equality. The paper examines how IRB influences the decision making of every player in the system, including the defense lawyer, and offers strategies for how defense counsel can address IRB while simultaneously living up to his or her obligations to each client. The paper suggests a three prong approach for the defender: 1) working to overcome his or her own biases, 2) developing strategies to educate others in the system about their biases at every stage of the process, and 3) finding ways to sustain him/herself in the face of intolerable injustice in order to help build a more just system.

Minnesota owes more than an apology when it sends innocent people to prison, two state lawmakers say:

Michael Hansen served almost seven years in prison, convicted of murdering his infant daughter until a new investigation proved that the little girl had fractured her skull when she fell from a shopping cart several days before her death.

When Koua Fong Lee’s Toyota suddenly accelerated, killing a woman and two children in the vehicle ahead, Lee was convicted of vehicular manslaughter and served nearly three years until the conviction was overturned on appeal.

Both men lost years of their lives, lost their jobs and missed seeing their children grow. Legislation proposed Tuesday by state Sen. Ron Latz, DFL-St. Louis Park, and state Rep. John Lesch, DFL-St. Paul, would offer compensation — as much as $700,000, depending on the circumstances — to those who, too late, were proven not guilty.

Right now, Minnesota does more to help the guilty than the innocent, said Lesch, a prosecutor. Twenty-nine states, plus the District of Columbia, have laws offering compensation for wrongful imprisonment.

View full story from the Minneapolis Star-Tribune, here.

The transcript in Prado Navarette v. California is here.  Lyle Denniston recaps the argument at ScotusBlog, concluding, “From all indications, a tip by itself may not be enough — except in extreme situations where the potential threat really gets dire.”

This report card focuses on public access to the highest court in each state, in three areas that are central to the work of appellate courts:  opinions, oral arguments, and briefs (and other case filings).  Grading standards are described generally in the Grading Legend and then applied in the detailed state-by-state table.  This section summarizes the overall grading results, then discusses each of the three key areas:

• No top state courts received a failing grade.
• 6 states received some variety of A. Mississippi, Montana, New York, Ohio, and Wisconsin scored highest, each receiving an A. North Dakota received an A-.
• 18 states received some variety of B. That includes 10 states (Delaware, Florida, Massachusetts, Michigan, Missouri, Nevada, New Hampshire, Oregon, Texas, and Wyoming) that received a B+.
• 22 states received some variety of C.
• 4 states received some variety of D, with Alabama lowest (at D-) and Rhode Island next-to-last (at D).

The full report can be found here.