The Commonwealth of Massachusetts has a rather unique process that allows citizens to introduce bills in the legislature. As you might expect occasionally some citizen introduces a bill that is driven by personal dissatisfaction with how a judge ruled on a case. The bills in once sense can be a little comical.   Massachusetts SB 651  declares “The Courts of the Commonwealth of Massachusetts are becoming worse in their disdain for the law and facts and in their support of an old boys network to protect favored attorneys whom the Judges might know or with whose law firm the Judges might wish to curry favor.” While the language and effect of the Massachusetts legislative proposal may be worth a chuckle what is happening in the State of Washington is no laughing matter.

Andrew Cohen, wrote a commentary for the Brennan Center which highlights a profound misunderstanding some legislators have about courts in our democracy.

“When the Supreme Court of Washington last week voided a controversial new state initiative that would have required a “super-majority” two-thirds legislative vote to pass any tax increase, the political reaction was predictable. Those who had supported the legislative measure were dismayed by the Court’s 6-3 ruling. Those who had opposed the new voting requirement, including Governor Jay Inslee, were relieved.

But what happened next was not predictable at all. On Wednesday, just six days after the contentious tax ruling, Republicans in the state senate introduced a bill that seeks to reduce the number of state Supreme Court justices from nine members to five. As if the concept of a “court unpacking plan” itself doesn’t intrude upon core principles of judicial independence, the language of the proposed measure makes it clear that the lawmakers who endorse it are using it to try to punish the Court for performing its requisite check upon political power. Here’s some of the text of the measure:

The state Constitution in Article IV, section 2 provides that there shall be five supreme court judges. For over one hundred years, the legislature has seen fit by statute to add four additional justices to that august body. Recent opinions by the Washington state supreme court have demonstrated that this legislative decision may be constitutionally problematic. First, the court has made it clear that the state legislature should be focused on prioritizing its budget according to constitutionally mandated duties, McCleary v. State, 173 Wn. 477, 269 P.3d 227 (2012). Given the nature of this mandate, the legislature finds that it can no longer justify the luxury of four additional supreme court justices.

In addition, the Washington state supreme court has indicated that the legislature may exceed its authority when it adds to the minimum requirements provided in the plain language of the state Constitution, League of Education Voters v. Gregoire, Case No. 87425-5 (2013)… With due deference to the doctrine of separation of powers and the Washington state supreme court as head of a coequal branch of government, the legislature finds that the state supreme court should return to the minimum number of judges provided for and enshrined in the state Constitution.”

The full commentary can be found here.

Berry on Criminal Constitutional Avoidance

William W. Berry III (University of Mississippi School of Law) has posted Criminal Constitutional Avoidance on SSRN. Here is the abstract:

Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.

This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases.

The Full article can be found here.

While most of the nation in the last several years has seen marked deterioration in the economy that is not the case in North Dakota. While it is a small state the  justice system is a vital part of the  North Dakota infrastructure.  SBAND’s Board of Governors approved and appointed a Justice System Energy Impact Task Force in May, 2012, to gather and analyze information regarding the effect of energy development on the  justice system, and provide direction to SBAND and to o state government in addressing justice system needs resulting from energy development.  The Task Force Report has been presented to all three branches of North Dakota’s  state government, and can be accessed on the SBAND website here.

The Brennan Center Fair Courts reports,

“The American Bar Association has issued Formal Opinion 462, speaking to the question of social media and the judiciary. According to the ABA’s opinion, “A judge may participate in electronic social networking but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.” The ABA further clarifies, “A judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification. For example, a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an ESM [electronic social media] connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification. However, nothing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.” The Wall Street Journal reports, “‘It is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge,’ the guidelines say. That said, ‘judges should be aware that clicking such buttons on others’ political campaign [social media] sites could be perceived as a violation of judicial ethics rules that prohibit judges from publicly endorsing or opposing another candidate for any public office.’”

Sources: American Bar Association, Formal Opinion 462, Judge’s Use of Electronic Social Networking Media [PDF], February 21, 2013; Jacob Gershman, Judges Urged to Think Before ‘Liking’ Someone, Wall Street Journal Law Blog, February 22, 2013″

From SCOTUSblog:

The case of Alleyne v. United States (docket 11-9335) is a potentially historic dispute over the modern phenomenon of “mandatory minimum” sentences, and the roles of judges and juries in imposing such sentences. At stake are laws in which a legislature decides that some aspects of a specific crime justify a sentence longer than the bottom of the range (such as having or displaying a gun during the crime), and dictate an add-on sentence that is still within the range but may be more than the judge would otherwise have selected.  They are defended on the ground that they make sentencing for such crimes more uniform, but the actual impulse seems to be to limit the discretion of kind-hearted judges to go easy in such cases.

The Los Angeles Times and The Washington Post rarely find a statement attached to a denial of cert so newsworthy that the story is on the front page of the newspaper. Justice Sotomayor issued a statement, joined by Justice Breyer, concurring in the Court’s decision not to grant cert in Calhoun v. United States but criticizing the prosecutor for asking a witness, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you–a light bulb doesn’t go off in your head and say, ‘This is a drug deal?’” The statement also criticizes the Government for failing to acknowledge the inappropriateness of the comment during subsequent appeals. There are not many statements attached to a denial of Cert that are worth reading but this one definitely is.

Don’t forget the AJA Midyear Meeting coming up May 2-4 at the Wyndham Lake Buena Vista in Orlando, Florida.  In addition to business meetings and a full day of excellent education sessions on Will Facebook be Friends with Courts:  Social Media, Digital Evidence and Emerging Trends, you and/or your family members may have time to enjoy the many attractions in the area.  Disney has created a complimentary webpage for AJA attendees to have access to some unique options and special savings on pre-arrival purchases for Disney theme park tickets.  The link is http://www.mydisneymeetings.com/wlbv.  For complete information about the meeting, you can go to http://aja.ncsc.dni.us/conferences/.

First it was not uncommon for judges in individual cases to make as a condition of pre-trial release or probation that sex offenders use of the Internet be restricted. Then came statutory bans that not infrequently were written very broadly. Now a  unanimous three-judge Seventh Circuit panel declares unconstitutional a recent Indiana statute prohibiting most registered sex offenders from using social networking web sites, instant messaging services, and chat programs.

You can read the opinion here.

A well written opinion has an introduction that captures what the case is about. It is all too often the lead in stories that are written about the decision. Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

 

The full opinion can be found here.

The Chicago Tribune reports that, “An Alsip man was sentenced today to probation and ordered to write an essay about the lynching of blacks in America after he pleaded guilty to an attack two years ago in which he and two friends put a noose around the neck of an African-American teenager and threatened to kill him.

Matthew Herrmann, who turns 20 on Thursday, is white and originally was charged as an adult with felony counts of committing a hate crime, unlawful restraint and battery

But in an unusual deal with Cook County prosecutors, Herrmann pleaded guilty last year to a misdemeanor count of battery and agreed to participate in a “peacemaking circle” with the victim, family, clergy and school counselors. The approach – typically used only in juvenile cases – is designed to provide healing for the victim as well as resolve the underlying issues that caused the act, according to prosecutors.

Criminal Court Judge James Linn agreed today to go along with the deal and sentenced Herrmann to 2 years of probation for the misdemeanor conviction. Herrmann must also participate in a follow-up peacemaking circle with the victim and write the essay on lynching.

See more here.