Have you made plans to attend the AJA midyear and symposium?  It is not too late:  http://aja.ncsc.dni.us/conferences/

If there is one thing that many trial court judges think they know how to do it is to fine people. Patricularly judges who serve in limited jurisdiction roles, fining is something that is done with great regularity. So the Supreme Court’s decision in Southern Union Co. v. United States could be one of the most significant  Apprendi cases.   SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

……… in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding — and if Apprendi applies to fines — the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines — the sanction for corporate “persons” — are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance ofOregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union’s guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court — going further than Smith — held Apprendi didn’t apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury’s role beyond what it has done in the past.

Southern Union and its supporters — which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief — say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi….

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. “This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty,” Verrilli said.

The former is a “deprivation of property,” while the latter is a “deprivation of liberty or life,” he said.  Verrilli delved into English common law in making the case that judges traditionally had “more discretion with respect to fines than they did in imposing terms of imprisonment or death.”…

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. “It’s a narrow category of cases,” said criminal law expert Ryan Scott, an associate professor at Indiana University’s Maurer School of Law….

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court whenApprendiwas decided and two — Justice Elena Kagan and Justice Sonia Sotomayor — have been appointed since Ice was decided.  As Scott put it, it is an “unusually difficult one to guess.”

Below is a speech given for the Austin Bar Association in honor of Law Day.

Introduction: Richard Pena, Esquire; Past President, State Bar of Texas; Past Chair, American Bar Foundation

Speaker: The Honorable Fred Biery; Chief United States District Judge, Western District of Texas

No Courts, No Justice, No Freedom

If I switch between the names Richard and Dickie, it is because we have known each other since elementary school. Richard’s voluntary service to our profession was foretold when he was treasurer of our senior class. My own career on the judicial bench was predicted by my college basketball experience, where I spent a lot of time “on the bench.”

Dickie and I were on such a good team in high school though that Hollywood had an idea of a movie and a sequel. But alas, the title had already been copyrighted so it never became reality. (What was the name of the movie?) “White Men Can’t Jump.” And the sequel was to be “Brown Men Can’t Jump Either.” But, as Richard says, “I just lower the basket.” He always was smarter than I was.

This year’s Law Day theme brings to mind true stories of the real life impact of No Courts, No Justice, No Freedom. Past American Bar Association President Stephen Zack and his family fled the Cuba of Batista and Castro. Mr. Zack keeps a copy of the old Cuban Constitution on his desk as a reminder that the document is only words on paper because there were not lawyers and courts to make it mean what it said, a concept we native born Americans too often take for granted.

One of the jurors in our court chose to become an American, having grown up in Latin America. Following a jury verdict of guilty, I explained to them the government could have sought the death penalty but did not because the defendant was extradited from a Latin American country which did not have the death penalty. The juror from Peru corrected me when she said, “Oh, no, Judge, we have the death penalty in Latin America; you just don’t go to Court before the government kills you.”

President Musharraf of Pakistan did not like decisions of the Supreme Court of Pakistan, and so he fired the chief justice and had justices put under house arrest. Courageous Pakistani lawyers took to the streets.

Recently, the President of Hungary did not like what Hungarian judges were doing and had the mandatory retirement age reduced to 62 so the President could name judges who would do his bidding.

Should we think the rule of law and an independent judicial system are safe and secure in the United States, may it be remembered that there are those who have tried and ultimately stepped back from undermining the separation of powers, including President Lincoln who suspended the writ of habeas corpus.

President Franklin Roosevelt tried to pack the Supreme Court with judges who he thought would rule in his favor and interned Japanese-Americans without due process of law. A current presidential candidate would have judges arrested and brought before Congress to explain their rulings. This latter threat may or may not be “Newtralized” by the electoral process. Newtralized is spelled N-E-W-T.

We know that in 1787 our Constitution in many ways applied only to white males who owned property. But because there are courageous lawyers who go to independent courts, our Constitution has evolved to be much more inclusive.

Robert Griffin III won the Heisman Trophy, but in 1787, his ancestors could not vote and were counted only as three-fifths of a human being.

Mr. Griffin is engaged to be married to Ms. Rebecca Liddicoat. Were they to have been married in 1966, the year Dickie and I graduated from high school, Ms. Liddicoat would have been subject to prosecution under Article 386 of the Texas Criminal Code: “If any white person shall, within this state, knowingly marry a Negro … he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.”

In 1967, lawyers persuaded the Supreme Court in Loving v. Virginia that such statutes violated the Constitution.

My sister’s in-laws tried to have a picnic in a public place in 1954. That family would eventually produce two United States congressmen, but they were excluded from Landa Park because their name was Gonzalez. Lawyers who brought public accommodation cases like Heart of Atlanta Motel  helped to right that wrong.

Our high school classmate Alfred Valenzuela became one of the first Hispanics to earn the rank of major general in the United States Army. But had his father come back from World War II with the Medal of Honor, he could not have served on a jury in south Texas because his name was Valenzuela. San Antonio lawyer Gus Garcia prevailed in the Supreme Court in Hernandez versus Texas.  Such practices were stopped. Black athletes could not compete against white athletes until Jackie Robinson and Sporty Harvey broke the color line. Mr. Harvey did it by going to court to desegregate boxing represented by lawyers Carlos Cadena and Maury Maverick, Jr. in Harvey vs. Morgan. Texas citizen and taxpayer Harry Bellinger wanted to go to law school in the 1930s, but he was not allowed to travel from San Antonio to Austin for his education because his ancestors had been involuntarily brought to the United States from Africa. Instead, he went to the University of Pennsylvania. Justice was finally done when UT Law School was desegregated by the case of Sweatt versus Painter Mr. Bellinger did become a lawyer and joined a legal team led by Thurgood Marshall which made it possible for Mr. Bellinger’s daughter, Dickie and me to graduate from an integrated public school. Ms. Charlie Bellinger Bethea went on to serve on the Texas Board of Pharmacy. And by extension, those same lawyers who were cursed and threatened made it possible for a descendant of slaves to now be known as Chief Justice Wallace Jefferson. The ladies in our country in many ways fared even worse. They finally received the right to vote about 90 years ago, but it was not until the 1950s that Texas women could serve on juries because lawyers and others helped to amend the Texas Constitution of 1876. By the way, there was a scrivener’s error in 1876. The document calls for the Texas legislature to meet 140 days every two years. It was supposed to read that it would meet two days every 140 years. Financially successful married women who wanted to invest in real estate could not do so without their husband’s consent until lawyers helped remove the tradition of coverture in the 1960s. Women who wanted to pursue careers in law enforcement and politics were effectively excluded, but today the daughter of migrant workers and our classmate, Lupe Valdez, has twice been elected sheriff of a little place north of here called Dallas County, Texas. In the 1960s, Kay Bailey was a UT cheerleader and is now United States Senator Kay Bailey Hutchison. But she could not be a Lady Longhorn athlete because there was no such thing until Title IX became law and lawyers went to federal court if necessary to enforce it. And now Title IX makes it possible for Lady Bear Brittany Griner to lead Baylor to a national championship. Our fellow lawyers who go to court to defend those accused of crime are often asked, “How can you defend a criminal?” One answer lies in Adanandus vs. Johnson: “In a nation whose landscape is dotted with synagogues and churches, the entreaties of “thou shalt not kill” and “forgive your enemies” are challenged by retribution and revenge, understandable responses to violent crime. The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death,  collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution. For the Constitution to be more than mere words, even those accused of terrible crime must have competent advocacy against the strength and resources of government. Though frequently and pejoratively quoted out of context, Dick the Butcher recognized lawyers as protectors of English rights; hence they must be killed to achieve the illegitimate seizure of sovereignty.”

Two last examples of how the intertwined worlds of law and politics can provide opportunities to succeed which their forebearers did not have: The son of a postal worker became one of the first in his family to go to college and he was the first to be a lawyer. He hung out a shingle, gives much time to pro bono work and is the first Hispanic President of the State Bar of Texas. The other is the son of a mom who picked cotton for eight cents a pound in Hill County in the 1930s on land owned by other people and of a father who grew up in an orphanage. Because of a federal law called the GI Bill, the dad went to college and bought a home for $84 a month. Because of their hard work, frugality, and a law called the Social Security Act of 1935, that couple today lives comfortably. Their son stands in awe and gratitude for the opportunities the passage of laws and courts and lawyers have provided to our generation. Lest we believe those legal roots are strong and deep and can never be eroded by legal and political droughts or fires or floods, may we recall three thoughts:

The first was written by a senator and philosopher 55 years before Jesus was born: “The budget should be balanced, the treasury should be refilled, public debt should be reduced, the arrogance of officialdom should be tempered and controlled, and the assistance to foreign lands should be curtailed lest our country become bankrupt. People must again learn to work, instead of living on public assistance.”

The senator was known as Cicero and his country was Rome. In the modern era a fellow named Adolf in 1920s Germany wrote: “What good luck for rulers that people do not think.”

And from a lady named Barbara who served in the Texas Senate and the United States Congress and whose words from a dark time in our history give us warning and inspiration and hope: “My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.” In England, on occasions like this, barristers and solicitors raise a toast: “Long live the Queen.” We rebelled against the divine right of kings. May our words be: “Long live the Constitution.”

In February 2012, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted the resolution below. The resolution, Urging Congress to Respect Separation of Powers and Principles of Federalism with Regard to Enacting Legislation to Address Child Custody, was recommended for adoption by the CCJ/COSCA Government Affairs Committee.

CONFERENCE OF CHIEF JUSTICES

CONFERENCE OF STATE COURT ADMINISTRATORS

Resolution 4

Urging Congress to Respect Separation of Powers and Principles of

Federalism with Regard to Enacting Legislation to Address Child Custody

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators,

in fulfilling their leadership role for state judicial systems, have traditionally taken

positions to defend against proposed policies that threaten principles of federalism or that

seek to preempt proper state court authority; and

WHEREAS, historically, the federal government has deferred to state law in matters involving

domestic relations; and

WHEREAS, in recent years, federal legislation has been introduced that would amend the

Servicemembers Civil Relief Act (Public Law 108-189) to address child custody

arrangements for parents in the Armed Forces who are deployed or anticipated to be

deployed in support of a contingency operation; and

WHEREAS, in the 112

th Congress, H.R. 1540 would have: (1) restricted temporary custody

orders based solely on deployment or anticipated deployment; (2) excluded parental

absence based on deployment or possible deployment in determining the best interests of

the child in permanent orders to modify custody; (3) made clear that a federal right of

action is not created; and (4) not preempted state law if the applicable state law involving

a temporary order provides a higher standard of protection for the servicemember; and

WHEREAS, federal efforts to legislate matters of child custody would preempt state family law

and potentially discourage state efforts to enact broader and more helpful state laws; and

WHEREAS, family law cases are complex and states are in the best position to balance the

interests of deployed servicemembers and their family members within the context of

their own domestic relations laws; and

WHEREAS, at least 30 states have already enacted state law that addresses the special

circumstances of parents who are serving in the military; and

WHEREAS, the Department of Defense continues to work with the other states, through its State

Liaison program, to enact specific child custody legislation and to redraft its Family Case

Plan Instruction to emphasize the importance of child custody planning before

deployment;

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and Conference

of State Court Administrators urge the Congress to ensure that: (1) during its

consideration of such legislation, the Congress take all available and reasonable steps to

obtain meaningful and timely input from appropriate state government branches and

agencies with respect to principles of federalism and separation-of-powers; and (2) a

federalism assessment of the proposed legislation be included in every pertinent

committee and conference report; and

BE IT FURTHER RESOLVED that the Conferences urge the Congress to continue to reject

legislative proposals to preempt state family law.

Adopted by the Conference of Chief Justices as proposed by the CCJ/COSCA Government

Affairs Committee at the 2012 Midyear Meeting on February 1, 2012 and by the Board of

Directors of the Conference of State Court Administrators on February 10, 2012.

Many states have been hard hit by funding cuts to courts. While there are a few states that have rebounded perhaps no state has been as challenged as California. Real budget cuts with profound consequences have hurt the courts and as might be expected diminished court employee morale has accompanied divisions among judges and the Judicial Council about how to best respond to the court funding crisis. The problems are real and there are few easy solutions. But there has emerged a renwed spirit in the legal community that something must change, Richard Zorza reports on his blog, for example, that In San Francisco there was a rally organized by the San Francisco Bar Association, with participation from legal aid leaders, law schools, big firms, prominent plaintiff firms, the State Bar, coming together to support the courts and protest the closing of courts and self help centers and courts due to lack of funding. Here is a report on the rally: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202549475928&Rally_for_Court_Funding_Draws_Hundreds_in_San_Francisco The array of speaker was impressive—a list of who is who in the legal community across the state. http://www.sfbar.org/calendar/eventdetail.aspx?id=X120036/X120036. Other local bar associations also joined the effort, including Contra Costa Bar Association http://www.cccba.org/attorney/news/press-20120315.php and the Santa Clara Bar Association. https://m360.sccba.com/event.aspx?eventID=49135&instance=0.  So this rally cannot be dismissed as a San Francisco event only—San Francisco being well known to take first time positions in many issues. And private firms are also supporting the rally.  http://lieffcabraser.com/media/pnc/5/media.1255.pdf and http://rftmlaw.com/?email-campaign=rally-to-support-court-funding-april-18-2012-in-san-francisco.

There is no perfect model for how states can better advocate for adequate and stable funding but what is happening in California might work in other states.

Can court leaders learn from the private sector? Of course what we do is radically different, but if there is any benefit from the current court funding crisis, it is it creates an environment where learning from others is imperative. Nancy Schlicting, CEO of Henry Ford Health System recently said “The most important word that creates an entrepreneurial and innovative environment: ‘yes.’ ”  In other words, empower your people and good things will happen. The same can be said of courts.

For trial judges who are a bit cynical limiting instructions given to a jury are worthless…..but we give them anyway. So it is interesting to have someone take a serious and scholarly look at the issue. That is what Professor David Alan Sklansky did.

David Alan Sklansky (University of California, Berkeley – School of Law) has posted Evidentiary Instructions and the Jury as Other (Stanford Law Review, Vol. 65, 2012) on SSRN. Even for judges with far too much to read, Professor Sklansky’s article is worth looking at. Here is the abstract:

Limiting instructions and instructions to disregard inadmissible evidence are widely believed to be both ineffective and necessary. Courts presume that juries follow evidentiary instructions, but the presumption is almost universally acknowledged to be false, a kind of professional myth. But we have it backwards. The real myth about evidentiary instructions is not that they work. The real myth is that they don’t work, but that we need to rely on them anyway. Both of these ideas about evidentiary instructions are wrong or at best greatly exaggerated. Evidentiary instructions probably do work, although imperfectly and better under some circumstances than others. Furthermore, evidentiary instructions are not an essential part of jury trial, and the legal presumption that they work flawlessly is even less fundamental.

The conventional wisdom about evidentiary instructions is part of a broader way of thinking about lay adjudicators that holds deep appeal but that we would do well to jettison: the idea that juries are something other than groups of human beings called together to sit in judgment, that trial by jury is something other than trial by people, that the jury is not a workaday committee but a kind of intuitive, unmethodical, pre-discursive oracle — the “voice of the community.” Thinking about juries as groups of people — inherently flawed, just as people are inherently flawed, but capable of reason, just as people are capable of reason — would allow us to think more sensibly, and more responsibly, not only about evidentiary instructions but about adjudication more generally.

Full-time and well educated judges, prosecutors, criminal defense attorneys, court staff members are relatively new positions in the American justice system. The benefits of this organizational development are closer adherence to proper procedures, stronger advocacy and a more orderly and controlled legal process to the extent that even the critics of the court world never call for a return to part-time and lay practitioners. Yet, the costs associated with the best and the brightest plague the quality of justice as mosquitoes plague campers.

Consider the fact that professionalism leads to two distinct vocabularies governing what is happening in open court, chambers, and hallways. Practitioners have one set of terms, concepts, and methods of expression and the public, including witnesses, jurors, and litigants have another. The former reflects the formal training, experience, and and on the job norms and and the latter reflects the shallow understanding held by everyone else. No wonder criminal defendants are skeptical and even dissatisfied with public defenders because they virtually have no grasp of what their counsel says to them and to others. And no wonder the public sees attorneys in general as scheming and judges relying on technicalities. I seriously doubt if any member of the public knows what has come to be called the court room working group in crimial cases. And many a doctor who has eluded a trial court judgment thinks there is no reason to considering settlement in an appeal by a patient because the possibility of an appellate court reversal is so close to zero, it likely is zero given measurement ertor. Hey, I’ve already won. Why should I bargain my position?

What does the public generally fail to know? Well, for starters, the public sees courts as just another branch of government and hence the policy making process is assumed to operate in the legal arena. The basic differences between the policy making process and the legal process are lost on the public. The public believes popular sentiments have a key role in judicial decision-making.

Another misconception that the public has is that judicial decisions primarily are the product of a judge in a given case. In fact, the public sees courts as simply as loose collection of individual, autonomous lawyers who have been appointed to the bench. There is very limited appreciation for the fact that the decision in an individual case are in a real sense a product of a judiciary. The decisions made by other judges constrain and direct what any individual judge might decide in a given case. Unpopular decisions are thought to be the product of wierd and out of touch judges.

In my opinion, professionalism both enhances the legal process and makes it difficult for the public to comprehend what, why, how, when, and where official participants make decisions. This observation is not novel, but it does imply the gap between the pros and the public will grow if left unintended. The legal process is unlike many sports where many fans have grown in knowledge to the extent they consider themselves as de facto managers and in some instances deserving of de jure status.

If it is the case that public understanding is worthwhile, the contemporarycourt performance movement should incorporate this element in its proclaimed efforts to establish goals and measures of respect, dignity, and accountability to the multifaceted public. Increase understanding will not make public prone to second guess judges; it is likely to have the opposite effect and make room for a more informed acceptanceof desirable judicial independence. The aim is not to make every member of the public an intrepid court watcher. Instead, a viable objective is to offer a comprehensible message of what is the role of courts in a democratic system. Such an effort will not right every misconception, but it will connect the process closer to the public in meangingful ways.

President Barack Obama offered a commentary on the US Supreme Court last week and suggested the Affordable Health Care Act would not be found unconstitutional by a five to four vote. He added that unelected judges would not think of contravening a law passed by a majority of democratically elected  of US Senators and US Representatives. The policy benefits and constitutionality of the Act aside, the Presidents words seem odd.

The entire Executive Branch of the Federal Government is unelected except for two positions, the Presidency and the Vice-Presidency. None of the other remaining millions of executive branch employees are elected. Cabinet members and other selected executive officers require US Senate confirmation, but so do federal judges (federal magistrates do not). Needless to say, a lot of decisions made and orders issued by executive employees never receive any judicial review. Hence, President Obama might do well by setting an example for future Presidents in ceasing and desisting from criticizing federal judges on the grounds they are unelected.

Furthermore, federal judges may be removed from office through the impeachment process. That is not just a theoretical possibility. Several federal judges at all levels have been impeached and convicted, including former Judge Alcee Hastings. Interestingly, Mr. Hastings subsequently ran and was elected to the US House of Representatives where currently he is a member of the Democratic Party representing a Congressional District in Florida. So an individual found not worthy of holding a non-elected federal judgeship, Hastings was found guilty of bribery, holds an elected federal legislative position. Such an situation undoubtedly is one known by President Obama and thereby should make him particularly cautious in raising questions about unelected federal judges.

One can argue an elected federal judiciary is superior to an appointed one, but to argue against possible decisions of particular judges on those grounds seems taking an ad hominem argument to its logical conclusion.

Justice Alito wrote the opinion for the unanimous Court in Rehberg v. Paulk.