Judicial ethics and Supreme Court exceptionalism

By Amanda Frost

Editor’s note: The following is an excerpt selected by Professor Frost from her full 49-page research paper. The paper is available at the Social Science Research Network (registration is required) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304287.

In his mild-mannered way, Chief Justice John Roberts has set the stage for a constitutional conflict between Congress and the Supreme Court.  Roberts’ 2011 Year-End Report on the Federal Judiciary focused on judicial ethics, a subject that has been much in the news lately.

Link: Read Year-End Report

In the course of that year, several of the Justices were publicly criticized for theiralleged involvement in political fundraisers;  acceptance of gifts and travel expenses paid for by groups with political viewpoints; failure to report a spouse’s employment; and, most controversially, refusal to recuse themselves from the constitutional challenges to the health care reform legislation despite alleged conflicts of interest.

Existing laws already cover some of this claimed misconduct, and the spate of negative publicity inspired the introduction of new federal legislation that would further regulate the Justices’ behavior.

Roberts’ Year-End Report acknowledged these accusations of impropriety, as well as the legal framework that governs in this area.  Then, in a shot across Congress’s bow, he stated that the Court had “never addressed” Congress’s constitutional authority to prescribe ethics rules for the Supreme Court—which many took to be a broad hint that, at least in the Chief Justice’s view, Congress lacks that authority.

To be sure, the Chief Justice was careful to note that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.”

But he went on to say that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and noted that the constitutionality of the recusal statute in particular has “never been tested.”  With those words, Roberts put the nation on notice that Congress’s authority to regulate the Justices’ ethical conduct is an open question.

The Chief Justice’s Report raises serious questions about the constitutional status of existing ethics legislation, as well as the Supreme Court Justices’ willingness to abide by laws that at least some of them may consider to be invalid, and thus non-binding.

Currently, federal legislation requires that the Justices recuse themselves from cases in which they have a conflict of interest, mandates that they file annual reports in which they publicly disclose many aspects of their finances, and bars them from accepting money for most outside employment.

Although the Justices appear to follow these laws, the Chief Justice’s Report suggested that he is not sure they have to.

His comments also cast doubt on the constitutionality of the Supreme Court Ethics Act of 2013, which was recently introduced by Representative Louise Slaughter and Senators Chris Murphy, Richard Blumenthal, and Sheldon Whitehouse.  Although the Chief Justice’s Report has provoked vociferous responses from those on either side of the issue, thus far there has been little academic analysis of the constitutional issues.

Jeffrey Bellin (William & Mary Law School) has posted Attorney Competence in an Age of Plea Bargaining — and Econometrics (Ohio State Journal of Criminal Law, Forthcoming) on SSRN.

Here is the abstract:

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of counsel claims into America’s untidy plea bargaining regime. The second part of the Essay highlights the extraordinary empirical methods employed to unearth the findings described in Part I. As empiricists apply increasingly sophisticated tools to the extraordinarily complex criminal justice system, gaining insight into the advantages and shortcomings of various methodological approaches can be just as important for those interested in criminal justice as any particular study’s substantive contributions.

Pleas from judicial leaders for filing judicial vacancies are increasingly common place in the United States and particularly in the federal court system. There are examples of delays in filing vacancies at the district court level in Texas of over 1,000 days. There are notable examples of appellate court vacancies or nominations being stalled for very long periods of time. Is it a broken Washington DC political system? Perhaps it is a broken judicial confirmation system. Or perhaps there is just something inherently hard about filing judicial vacancies. Chritin Schmitz has a very interesting story in The Lawyers Weekly on the judicial appointments issue in Quebec.

Biker gang and other prosecutions risk being thrown out for unconstitutional delay if Ottawa keeps dragging its heels on urgently needed judicial appointments, warns Quebec Superior Court Chief Justice François Rolland.

 

In an exclusive interview, the head of Quebec’s 145-judge superior trial court told The Lawyers Weekly he doesn’t know why the government has not moved to amend the Judges Act to create the seven new superior trial positions requested by the Quebec government last year. Five of those posts are expected to be dedicated to criminal matters.

 

“It’s really urgent,” Chief Justice Rolland told The Lawyers Weekly at the Canadian Bar Association’s legal conference here Aug. 17.

 

“Something is not functioning in the system and the solution is there. As far as I’m concerned, as an institution we’ve established our needs more than two years ago with [the Quebec government], and last year Quebec has agreed and has [authorized] seven more judges … [We need them] as soon as possible.”

 

Quebec has already seen high profile charges stayed in one mega-trial due to a shortage of judges and high-security courtrooms. In 2011, 31 alleged members and associates of the Hells Angels motorcycle club who were arrested in 2009, along with 125 others targeted in an investigation into gang-related murders and drug dealing, had their drug charges thrown out for unreasonable delay because the presiding judge concluded the case could not be heard until 2019.

 

And there are more unreasonable delay motions to stay proceedings pending, the chief justice pointed out. “So hopefully, by having these additional judges, the trials will be able to take place before 2017, [perhaps] in 2013 or 2014.”

 

Chief Justice Rolland emphasized “delays are increasing, and not only in criminal matters, but in civil matters. It’s a very difficult situation. That’s why we’ve asked for seven additional judges.”

For the complete story click here.

How expansive the Second Amendment is since the decision of the United States Supreme Court in Heller is likely to be debated for a significant period of time.  One notable recent decision is from Oregon where the court dealt with what right does an individual have to carry loaded firearms in a public place.  State v. Christian (Ore. Aug. 15, 2013):

[W]e conclude in the first instance that the ordinance [limited carrying] does, to some extent, burden protected conduct falling within the scope of the Second Amendment’s guarantee. [Footnote: … Although Heller did not define the scope of the right to self-defense outside the home, we read the opinion as recognizing a right to self-defense outside the home to a degree yet to be determined by the Court….]

The Oregon Court concluded that the ordinance in Christian did not restrict the right to bear arms too much, partly because Oregon is a shall-issue state and people remain free to carry if they get a concealed carry license.

How Appealing reports that the “New Mexico Supreme Court rules that photography business discriminated against gay couple”: The Associated Press has this report.

And Reuters reports that “Refusal to photograph New Mexico same-sex couple ruled illegal.”

You can access the ruling of the Supreme Court of New Mexico at this link.

Legal Feeds reports that, “Justice Minister and Attorney General Peter MacKay is highlighting the “pressing need” to appoint more female judges and ensure the bench reflects “the changing face of Canada.”

The federal minister spoke with Legal Feeds this morning, elaborating on some of the themes that arose yesterday afternoon when he spoke at the Canadian Bar Association’s annual conference in Saskatoon.

In a question and answer session yesterday, he said the government would consider whether greater transparency around judicial appointments would encourage more diversity.

But he added: “I think the more pressing issue is answering the disparity and appointing more female judges, if I can be so frank.”

He said he knew of “a number of cases” where the pool of applicants suggested by judicial advisory committees included insufficient numbers of women.

“The first course of action would be to “ensure we have fully functioning JACs that include women, that have a greater gender balance. That, I think, will help facilitate some of the disparity,” he said.

He told Legal Feeds encouraging women and people from ethnic minorities to become superior court judges was a “very important objective,” to ensure the bench is drawing from the strongest possible pool of candidates and is a “reflection of the changing face of Canada.” For the full article see: http://www.canadianlawyermag.com/legalfeeds/1634/a-pressing-need-for-more-female-judges-mackay.html

Group of D.C. government judges seeks to organize for first time

Some District judges have found themselves in the unusual position of envying the city’s teachers, firefighters and garbage collectors. Those jobs come with something not currently available to those who wear robes to work: the ability to join a union.

Now a group of city administrative law judges is seeking to organize for the first time, and the months-long effort — taking place over the strenuous objections of the judges’ supervisor — has generated frustration among union advocates who think Mayor Vincent C. Gray has failed to match his pro-labor rhetoric with action.

Simply parroting another web site post rarely makes sense but there are exceptions to the rule. The Brennan Center for Justice had this recent post:

“The Brennan Center for Justice, along with the ACLU of Michigan, and the Michigan State Planning Body filed an amicus brief late Friday appealing the prison sentence of Joseph Bailey, whose inability to pay his court-ordered restitution was not considered during sentencing. The amici are represented by the international law firm of McDermott Will & Emery LLP. The brief argues that jailing Bailey for being too poor to pay is unconstitutional under the Equal Protection Clause and the Michigan constitution.

Although the U.S. Supreme Court has previously ruled that indigent individuals may not be incarcerated based on their inability to pay criminal-justice related debt, Michigan routinely jails poor defendants who cannot pay court-ordered fees and fines.

“Imprisoning defendants who are too poor to pay court-related fees is more than just a violation of their constitutional rights,” said Jessica Eaglin, counsel in the Justice Program at the Brennan Center. “It perpetuates an endless cycle of poverty and punishment that worsens the growing costs of unnecessary incarceration. The court needs to create a system that imposes suitable penalties for criminal action while protecting defendants, their families and the economy.”

The brief urges the court to clarify what constitutes a fair system for assessing defendants’ ability to pay. It emphasizes that rather than incarceration, courts can establish payment plans, substitute community service, or waive certain legal financial obligations — all of which make it more likely that individuals will repay their court-ordered debt.

“It is imperative that the criminal justice system has a sound process in place to determine a defendant’s ability to pay,” said Joshua Rogaczewski, a partner at McDermott. “Without such a process, defendants who lack the ability to pay court-ordered fines or penalties are exposed to the unacceptable risk of incarceration for failing to pay those fines or penalties. We’re proud to be a part of this important matter.”

•             Read the amicus brief

•             Read Criminal Justice Debt: A Toolkit for Action (July 2012)

•             Read Criminal Justice Debt: A Barrier to Reentry (October 2010)

In the United States it is common for trial judges to complain about appellate courts; reverse me but do not remand or do not reverse me for more findings since I made up all the findings I could the first time. One very colorful trial judge once told a Minnesota Supreme Court Justice you cannot make chicken salad out of chicken shit.  But the concern about finding and an adequate explanation is not peculiar to the United States. After the Supreme Court of Canada’s decision in R. v. Vuradin, 2013 SCC 38, it may have been thought that lack of reasons as a ground of appeal had been extremely restricted.  However, this has not turned out to be the case.  Consider the following example.

In R. v. BROWN; R. v. REID, 2013 ABCA 289, August 23, 2013, the two accused were convicted of second degree murder after a trial before a judge sitting alone.  The deceased was shot after an argument at a casino.  Both accused appealed from conviction.  Brown’s appeal was dismissed, but Reid’s was allowed and a new trial ordered.  Reid argued, in part, that the trial judge failed in his reasons to address the essence of his defence.

At the trial, two security personnel provided evidence of the “shooter” possibly being someone other than Reid.  Reid argued that this evidence should have caused the trial judge to have had a reasonable doubt concerning his involvement in the shooting. The Alberta Court of Appeal noted that “nowhere in his reasons did the trial judge even advert to this theory much less respond to and deal with it.”

The Court of Appeal indicated, at paragraph 52, that appellate courts “are to consider the sufficiency of a trial judge’s reasons as a whole, in the context of the evidence, the arguments and the trial and with an appreciation of the purpose or function for which they are delivered” and that the Supreme Court of Canada said in REM that what is required is that “the trial judge’s reasons, when read in the context of the record and the submissions on the live issues in the case, ‘show that the judge has seized the substance of the matter.’”

In this case, the Alberta Court of Appeal concluded that “while the trial judge’s reasons did seize upon ‘the substance of the matter’ as it relates to the Crown’s case against Brown, the same cannot be said with respect to the case against Reid.  Nowhere did the trial judge deal with the theory being advanced by Reid’s counsel that the testimony of the two security guards raised a reasonable doubt regarding his client’s guilt.  Rather the trial judge dismissed their testimony in a very summary fashion.”

The Court of Appeal held that its earlier comments in R v Bisaro, 2010 ABCA 90, 477 AR 385 at paragraph 20, were “therefore apropos”:

One appropriate reasoning process in a case where the Crown calls evidence that on its face exonerates the accused is the approach to defence evidence in R. v. W. (D.), [1991] 1 S.C.R. 742. Although the order of considering the evidence is the option of the trial judge, the judge must explain why the evidence is not believed and why it does not raise a reasonable doubt as well as moving on to a consideration of the other Crown evidence. In this case, these belief and doubt steps were missed. As a result, the proof beyond a reasonable doubt test was not applied.

In a letter sent earlier this month to leaders of the House and the Senate and the Judiciary and Appropriations committees in both chambers, the judges described themselves as “the boots on the ground in our nation’s federal trial courts.” They offered a detailed, firsthand view of the judiciary’s “unprecedented financial crisis” and its “devastating impact on court operations nationwide. Observers of the federal court system cannot recall the last time such a thing has happened, if it ever has. Chief judges in 86 of the 94 Federal District Courts around the country — more than half of them Republican appointees — have now joined to sound an alarm about the grave damage to the nation’s justice system caused by years of flat financing followed by Washington’s lunatic across-the-board budget cuts known as sequestration. Their urgent plea to stop starving federal courts of adequate resources to fulfill the judiciary’s constitutional responsibilities deserves a response from Congress.

For the full editorial see : http://www.nytimes.com/2013/08/26/opinion/federal-courts-in-crisis.html?ref=opinion

Meanwhile Peter Hardin reports in Gavel to Gavel that U.S. Attorney General Eric Holder, calling the federal public defender program “in dire straits,” has urged Congress to restore funds slashed through automatic, across-the-board federal budget cuts called sequestration.

Holder made his appeal in a Washington Post op-ed, declaring that the nation’s systems for funding legal representation for indigent criminal defendants are “in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.” Holder concluded:

“Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure. Only Congress has the ability to restore the funding that federal defenders need to ensure that justice can be done. It is past time for our elected representatives to act.”

See more at: http://www.gavelgrab.org/#sthash.8kX5EOIc.dpuf