Mention the legal system and most Canadians think of crime – publicly funded overpriced lawyers, interminable gang trials, and judges who are too soft on thugs. But the vast majority of court time is devoted to civil, family and non-criminal cases.  The federal Conservative omnibus crime bill is grabbing attention, but it’s the moribund civil system that requires resuscitation and reform.  In B.C. last year, 48,591 civil cases, 13,088 family cases and a paltry 1,054 criminal cases were filed in the province’s Supreme Court.  The lower provincial bench had 87,567 traffic and bylaw cases filed as well as 18,064 small claims, 41,551 family and 8,097 youth cases, compared with 101,865 criminal briefs – about 40 per cent of the filings for 2010.

Unfortunately, government under-funding and ever-increasing costs have seriously gummed up the cogs of civil justice, and most Canadians don’t realize how bad things are until they get fired, evicted, separated, or have a credit dispute.  Then they quickly understand something has gone terribly awry – the proverbial wheels of justice are not simply turning slowly, but seem to have completely seized up.”  Read more: http://www.vancouversun.com/news/Better+funding+only+crippled+civil+justice+system/5754247/story.html#ixzz1euwezTKM

 The Chief Justice of British Columbia’s Supreme Court has issued a  call for judges  to speak out against provincial funding cuts that he says threaten B.C.’s judicial system. In a recent speech Chief Justice Robert Bauman said, “The stability and integrity of our courts and judicial system are being slowly eroded by a lack of funding……Our judicial system is one of the best in the world. But it is threatened, if not in peril.”

The entire sppech can be found at: http://www.courts.gov.bc.ca/supreme_court/about_the_supreme_court/speeches/Challenges to the Budget for Court Services Branch- CBA-BC Las Vegas meeting.pdf.

 Chief Justice Baumen said the court  budget will be reduced by more than 10 percent between 2008 and fiscal 2012-13, a cut that he said “translates directly to a reduction in staffing levels.”  He said staffing shortages at court registries have meant delays of up to six months in the processing of court orders, which he said impedes access to justice for litigants.  Read more: http://www.vancouversun.com/news/Judge+sounds+alarm+over+funding/5766133/story.html#ixzz1euqGovEe

 The headline for an Orlando Sentinel editorial about the state’s court funding crisis delivers a concise message: “Judges should carry gavels, not tin cups.”  Before the end of the most recent fiscal year on June 30, Florida legislators had to seek an emergency infusion of funds for the courts. With a wave of foreclosure cases halted, a primary source of revenue for Florida’s courts under a revised funding formula was affected, and the courts faced for a time a large shortfall in funding (see Gavel Grab).

More recently, Gov. Rick Scott approved an emergency $45.6 million loan to help plug a major funding gap for Florida’s courts; it was requested by Florida Chief Justice Charles Canady.  The editorial agrees with Justice Canady’s remark that “This is not the way to run a branch of government.” It adds:  “Especially not the judicial branch, which has a constitutional duty to check abuses of power by the executive and legislative branches. What happens when courts must depend on the governor or Legislature for periodic bailouts?”

 Finally the New York Times reports, ““The justice system’s funding has been decreasing in constant dollars for at least two decades,” said David Boies, co-chairman of a commission formed by the American Bar Association to study court budget issues. “We are now at the point where funding failures are not merely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.”   For the complete New York Times Story see: http://www.nytimes.com/2011/11/27/us/budget-cuts-for-state-courts-risk-rights-critics-say.html?_r=1&adxnnl=1&hpw=&adxnnlx=1322406030-0tGu3Te8Os+hQhaMAMu3RQ

A lot of national press attention has focused on how the State of California is struggling to find ways to reduce its state prison population and cost, but the issue is not peculiar to California. The Atlanta Journal Constitution in a story written by Bill Rankin reports that, 

Shortening sentences for some nonviolent offenses and creating a statewide network of accountability courts could help prevent Georgia taxpayers from spending more than $250 million to accommodate an expanding prison population, a state panel said. The Special Council on Criminal Justice Reform said changes are needed to control the unimpeded growth in state prison spending, which has doubled over the past two decades to $1.05 billion a year. The panel noted the growth is being fueled by drug and property offenders who account for about 60 percent of all prison admissions.

The council noted more than 3,200 offenders enter prison on a drug possession conviction each year and two-thirds of these inmates have been found to be low risks to offend again.

For that reason, the panel recommended the creation of a statewide system of drug, mental health and veterans’ courts that offer alternatives to incarceration and a more robust supervision of offenders released from custody to reduce recidivism. Some of the cost savings from the reforms can be used to help fund these programs, the report said.

The report can be found at http://www.legis.ga.gov/Documents/GACouncilReport-FINALDRAFT.pdf

The Supreme Court recently heard a case in which prosecutors withheld from the defense information that might have acquitted a murder defendant. The court can rectify this one injustice by ruling for the defendant, but broader reforms are necessary to prevent prosecutors nationwide from concealing evidence.

The case before the court arose from gruesome circumstances. In 1995 in New Orleans, a birthday party was interrupted by armed men looking for money and marijuana. The men opened fire, killing four occupants of the house; a fifth occupant died of her injuries within a week. Juan Smith was charged with and convicted of five counts of murder, largely on the eyewitness testimony of a survivor, Larry Boatner, who said, “I’ll never forget him.”

After Smith’s conviction, his lawyers learned about evidence in the prosecution’s possession helpful to him. Among other things, it indicated that Boatner repeatedly told authorities that he couldn’t describe the figure who first entered the house (although he did eventually identify Smith in a photo lineup). Under a landmark 1963 Supreme Court decision known as Brady vs. Maryland, prosecutors have a duty to disclose information potentially helpful to the defendant. The court in that case could hardly have been clearer: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

The New Orleans district attorney’s office argued that there was no Brady violation because the evidence denied to the defense was not admissible. Given the importance of the evidence, that assertion is implausible. The Supreme Court should grant Smith a new trial

A victory for Smith would remedy this particular injustice, but violation of the Brady rule is widespread in the criminal justice system. The National Assn. of Criminal Defense Lawyers has proposed model legislation that would ensure that the Brady rule would be faithfully followed. For example, it would require prosecutors to disclose information that is “favorable” to the defendant even if it’s not considered admissible. Prosecutors also would have to disclose material sought by the defense “without delay.”

The proposed legislation would apply to federal prosecutions, but it could serve as a model for the states as well. Both state and federal prosecutors are bound by Brady, and both have been guilty of undermining it. Congress must act because the Supreme Court alone can’t deal with all the abuses.

There is perhaps no current substantive  topic in criminal law that has had as much debate and discussion as the confrontation clause. Academics spend considerable of their scholarship time writing about it and trial judges struggle to make consistent sense of what rulings they should make. There is an interesting recent law review article that is worth reading: 

The Incredible Shrinking Confrontation Clause

Jeffrey Bellin 

Southern Methodist University – Dedman School of Law

November 1, 2011

SMU Dedman School of Law Legal Studies Research Paper No. 84 

Abstract:      
Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded with the decisions in Davis v. Washington and Bryant v. Michigan – decisions that revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right. 

Scholars seek to reanimate the doctrine by expanding the definition of “testimonial” – modern Confrontation Clause doctrine’s central term. This Article seeks a similar objective through a less traveled path. It accepts the Court’s focus on, and definition of, “testimonial” statements as a valid, even inevitable, jurisprudential development. The Article seeks instead to expand the reach of the confrontation right to “nontestimonial” hearsay, arguing that constitutional limits – albeit less strict ones – are also warranted for this type of hearsay in light of the policies, text and history of the Confrontation Clause. The Article then details how the Supreme Court can (consistent with the overarching historical, textual and policy arguments noted above) integrate these limits on the admission of nontestimonial hearsay into its new jurisprudence

The New Politics of Judicial Elections 2009-10

Nearly 40 percent of all campaign cash in 2009-10 came from 10 organizations

A report released by Justice at Stake and supported by The Joyce Foundation’s Money and Politics Program found that non-candidate spending in state high court elections nearly doubled as a share of total costs in 2009-10, compared to the previous off-year election. The report, The New Politics of Judicial Elections 2009-10, also found that the rise in non-candidate TV advertising made the election cycle the costliest non-presidential election cycle ever for TV spending in judicial elections.

Other findings include:

• Nearly one-third of all funds spent on state high court elections came from non-candidate groups ($11.5 million out of $38 million in 2009-10).
• Nearly 40 percent of all funds spent on state high court races came from just 10 groups, including national special interest groups and political parties.
• Though outside groups paid for only 40 percent of total ads, they were responsible for 3 in 4 attack ads.

The report is just the latest in a series that has monitored spending in judicial campaigns. Since 2000, Justice at Stake reports, spending on state high court elections has more than doubled, increasing from $83.3 million in 1990-1999 to $206.9 million in 2000-2009.

Download the report.

Ariane de Vogue of ABC News has this blog post that shows just how different the world is today with respect to gender equality. The article recounts Justice Ginsburg’s recent talk about a court decision stemming from a state law that favored men over women.  The law existed in 1971 at a time when Ginsburg was working as a young lawyer and law professor with an expertise in gender discrimination.  It was an Idaho probate law that read “males must be preferred to females” when more than one person was equally qualified to administer an estate.  Long before she took the bench as a Supreme Court Justice, Ginsburg challenged the law and won the decision.

In the case Reed v. Reed, the Supreme Court, for the first time in history, applied the Equal Protection Clause of the 14th Amendment to strike down a law that discriminated against women. Ginsburg told an audience gathered to celebrate the 40th anniversary of the decision that the case was a turning point that led to a series of other cases striking down laws that discriminated on the basis of sex.  In a unanimous decision, the Court held that the law’s dissimilar treatment of men and women was unconstitutional.  Chief Justice Burger’s opinion said in part:

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intra-family controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

There are all kinds of lessons one could learn from the Iowa Supreme Court retention election last year. The one thing many observers are united in is a come wish that contests like that do not become the norm, but in an article in Gavel Grab there are warring signs that Florida may be the next focus of a campaign similar in character to the Iowa Supreme Court retention election. Peter Hardin wrote a piece which said in part,

Florida Bar President Scott G. Hawkins said state Supreme Court justices may be targeted by political groups for ouster in retention elections next year, and he also floated details of a proposal to stabilize state court funding.

Hawkins’s remarks were reported by a Daytona Beach News-Journal article, following Hawkins’ meeting with that newspaper’s editorial board. Regarding retention (up-or-down) elections, The Florida Bar wants to make a point, he said, that “if you are going to assess a judge, it is fair to look at one particular ruling or do you assess a body of work?” He said the ouster effort may come from political groups pushing one or another single issue.

Also participating in the discussion was Sandra C. Upchurch, a local representative of the Florida Board of Governors. Upchurch noted that a potential for attack campaigns against judges has been created by the electronic age and numerous social media.

Judges in Florida are not permitted to form campaigns until they face registered, organized opposition. This can prevent them from responding directly to the kind of opposition that surfaces in  social media networks.” Whether by rule or common practice many  judges in retention states historically have not formed any campaign operation or committee until there is announced opposition and some have not even respond when there is announced opposition. But as the retention election of Alaska Supreme Court Justice Dana Fabe shows there are problems with just assuming that retention races don’t require some thought and strategy if shortly before the election organized opposition surfaces. Justice Fabe will be one of the featured  speakers at the American Judges Association National Symposium on The Politicalization of the Judiciary: How to Respond on Friday May 18, 2012 at the Doubletree Hotel Downtown ($129.00 per night), 315 4th Avenue North, Nashville, Tennessee. To sign up for the Symposium follow this link:  http://aja.ncsc.dni.us/conferences/

Yesterday, my wife (Judge Susan Burke) and I presented Jan Crawford with the AJA’s Gavel Award.  Ms. Crawford is the chief legal correspondent for CBS and covers the Supreme Court extensively, including interviews with Chief Justice Roberts and Justice Stevens.  Her book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, published in 2007, became a New York Times Bestseller.

 Judges Negotiate Medical Negligence Lawsuits

Governing  Daily has an interesting post written by  Caroline Cournoyer, ” New York doctors pay some of the nation’s highest medical liability premiums, and in 2009 received the highest number of claims filed against them, according to American Medical News. So it’s natural that the state is expanding one strategy to reduce the resources spent on medical malpractice lawsuits. Judge-directed negotiation, which New York Judge Douglas E. McKeon set into motion in his Bronx court in 2002, saves hospitals money and resolves cases years earlier by having judges, attorneys, doctors and plantiffs take an hour to talk about cases in hopes of negotiating a settlement. Each judge in the program receives medical education and each court has the expertise of a registered nurse.  Tackling medical malpractice suits this way takes about nine months, compared to the three years it used to with conventional court methods, McKeon told amednews. Nearly all of the program’s more than 1,000 cases have ended in settlement, which usually results in lower payouts from the hospital. Since 2003, the New York City Health and Hospital’s Corp. has seen its medical liability payouts shrink by $60 million over the course of seven years. The negotiation program expanded to Brooklyn and Manhattan courts and hospitals last year and is expanding upstate to Buffalo this month.”

If you serve as a judge in a court system that is under funded nothing in  this new Associated Press piece, is new but if your court is still adequately funded but simply threatened then there are lessons from the Associated Press article:

Prosecutors are forced to ignore misdemeanor violations to pursue more serious crimes. Judges are delaying trials to cope with layoffs and strained staffing levels.  And in some cases, those charged with violent crimes, even murder, are set free because caseloads are too heavy to ensure they receive a speedy trial.

Deep budget cuts to courts, public defenders, district attorney’s and attorney general offices are testing the criminal justice system across the country.  In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake.

Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years.  At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.

The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases.

“It’s extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don’t do these jobs for the money.  They are in America’s courtrooms every day to protect victims and do justice,” said Scott Burns of the National District Attorneys Association.  “And they’re rewarded with terminations, furloughs and cuts in pay.”

The ripple effects have spread far beyond criminal cases to even the most mundane court tasks, such as traffic violations and child custody petitions.  The wait to process an uncontested divorce in San Francisco, for example, is expected to double to six months as the system struggles to absorb state budget cuts that have led to layoffs of 40 percent of the court’s work force and the closing of 25 of 63 courtrooms.”                                                                                                                                                                                                                

So what should courts do to advocate for adequate and stable funding? There are no simple answers but there are likely some principles that are at the forefront. first courts that are perceived to be dynamic and well run get funded the rest are told to do more with less. There is a danger in tough economic times that court leader hunker down but the problem with that approach is it feeds into less funding. What are your thoughts?