The Huffington Post recently reported:

The Massachusetts Supreme Court chief justice has issued a powerful and encouraging reminder to Muslims amid a wave of Islamaphobic sentiment:  The U.S. Constitution is on your side.

Chief Justice Ralph Gants spoke at the state’s largest mosque, the Islamic Society of Boston Cultural Center, following afternoon prayer on Friday. Gants acknowledged it was a “difficult time” for Muslims in America, with the attacks in Paris and San Bernardino, California, igniting a fresh wave of discrimination, hate and even violence.

“And I am here to assure you that you do not stand alone,” Gants said. “You have a Constitution and laws to protect your right to practice your religion, to protect you from discrimination and the denial of your equal rights, and to protect you from acts of violence that might be committed because of your religion or your nation of origin.”

Read Gants’ full speech here.

Robyn L Holder (Griffith Criminology Institute) has posted Specialist Domestic Violence Courts: Planning (and Researching) for Long Haul System Change on SSRN.

Here is the abstract:

The numbers of specialist domestic violence courts in the USA is over 400; there are about 70 in Canada and 140 or so in the United Kingdom. Recently some of the first such courts in Australia – those in Western Australia – were announced to close and Queensland’s first has just commenced a pilot phase. This presentation reflects on what researchers and policy-makers alike might learn from this picture. Drawing on experience with two long established criminal family violence courts – the ACT Family Violence Intervention Program (Australia) and the Manitoba Family Violence Court (Canada) – it is argued that clarity of problem-analysis, and longer term thinking and planning is critical.

The Kansas Supreme Court recently struck down a section of state law that took away the court’s authority to appoint chief judges in the state’s 31 judicial districts in a case that could threaten court funding.

The court said the section violates a provision of the state constitution giving the state supreme court general administrative authority over the state’s courts, reported the Kansas City Star, the Topeka Capital-Journal and the Lawrence Journal-World. The law had switched power to appoint the chief judges from the state supreme court to the judges in each district.

The court also found a violation of the separation of powers doctrine.

The decision “may bring the state closer to a crisis over court funding,” according to the Capital-Journal. A nonseverability clause in the 2014 law says a decision striking down any provision of the law would invalidate the entire law, including, apparently, provisions for state funding of the judiciary.

Wyoming Governor Matt Mead’s budget recommendations for the upcoming 2017-18 biennium include a nearly $4.8 million reduction in funding for the state’s Court Supervised Treatment programs such as Drug Court and DUI Court.

The programs are administered by the Department of Health’s Behavioral Health division.  The suggested cuts amount to about 56 percent of the budget for those programs.  DOH was counting on receiving that money as part of the state’s tobacco settlement funds.

Wyoming and 45 other states take in millions of dollars each year as the result of a settlement reached back in the late 1990s with the country’s five largest tobacco companies.  But that revenue has been slowly declining over the past few years.

Dog wins its day in court after defendant challenged canine’s presence in Akron trial

The Akron Beacon Journal recently had an article that begins, “An Ohio appeals court has rejected an Ohio prisoner’s claim that the wagging tail of a dog brought into an Akron courtroom to put a young victim at ease swayed the jury in the case.”

In the opinion, the Court of Appeals said, “[s]pecial accommodations . . . are often allowed for child victims of sexual abuse to minimize the emotional trauma and stress of having to testify in a courtroom full of strangers, along with the accused.” State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 2011-Ohio-3126, ¶ 100; see also Holder, All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant’s Right to a Fair Trial, 50 Hous.L.Rev. 1155, 1158 (2013) (“Children experience unique challenges on the witness stand, and in response, they receive special accommodations.”).

You can access the ruling of Ohio’s Ninth District Court of Appeals at this link.

The California Ethics Advisory Committee published an advisory statement saying judges could keep their Boy Scout affiliations for either of two reasons: if the troop allows gays and lesbians as leaders, or if it excludes them for religious reasons. The ban on discrimination in the judicial ethics code contains an exemption for exclusions motivated by religion.

To comply with ethical standards, a judge must determine that a Scout troop with an antigay policy is “an organization dedicated to the preservation of religious values of legitimate common interest to the troop members,” the committee said.

The ethical code has long forbidden judges to belong to organizations that discriminate on the basis of sexual orientation. But since 1996, the state’s high court has exempted membership in “nonprofit youth organizations” to accommodate judges affiliated with the Boy Scouts. That exemption will end in January.

How courts can more effectively deal with sexual violence/domestic abuse cases is one of the greatest challenges facing judges. While it is often difficult for courts to simply adopt innovations or approaches from foreign countries, at a minimum thinking about how thoughtful leaders approach reform is useful. At a minimum, it requires us to think about what we do, why, and can it be more effective.

On December 14, 2015, the New Zealand Law Commission released its report: The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes:

In this report, the Law Commission reviews the trial processes in New Zealand in relation sexual violence cases and makes recommendations for change. These recommendations include “a consideration of whether a non-criminal process is a viable alternative way of dealing with certain incidents of sexual violence.” Interestingly, the Law Commission recommends that “judicial specialisation should be achieved by requiring judges to hold a designation before they may sit on sexual violence cases” (at page 102). The Law Commission also suggests that there is a lack of confidence among participants in the criminal justice system (at page 128):

Research indicates that participants in the criminal justice system find it to be “an artificial, alienating and disempowering process that does not produce an outcome in which they have confidence.”

In the forward to its report, the Law Commission suggests that “incremental change…will not bring about the desired result of bringing…complainants within the formal justice system or satisfying their legitimate needs”:

…a significant number of complainants are “opting out” of the very system that is supposed to recognise their rights and support their needs. They are doing so largely because they perceive the formal criminal justice system to be alienating, traumatising, and unresponsive to their legitimate concerns.

The fundamental task for the Law Commission in this Report has been to assess and make recommendations on how the position of complainants might be improved, but without compromising the trial rights of defendants. It has to be said that this is no easy task. Indeed, it is one of the more challenging law reform exercises that can be posed today.

The Commission is of the view that useful improvements can and should be made to the existing formal system, and we have addressed these in our Report. The Commission has however also reached the view that incremental change, which has been struggling forward over the last three decades, will not bring about the desired result of bringing these complainants within the formal justice system or satisfying their legitimate needs.

The Law Commission concludes that “a specialist sexual violence court, however formally constituted, is required, and potentially as a division of the District Court.”

Recommendations:

Among the Law Commission’s eighty-two recommendations are the following:

R1 Legislation should require that, save in exceptional circumstances, all cases involving sexual violence should be set down for hearing within a specified time of the filing of the charge.

R19 The objectives of the specialist court should be:

·to bring specialist judges and counsel together in a venue that enables robust fact-finding without re-traumatising the complainant; and

·to facilitate a coordinated and integrated approach among the various organisations and people who deal with complainants in sexual violence cases.

R27 The Government should consider the desirability of funding a long-term research project to examine the feasibility and design of a specialist sexual violence court to operate post-guilty plea, in the form proposed in the Law Commission paper Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012).

The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota:  Whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.

Among the best legal blogs is Howard Bashman’s How Appealing.  He recently had this post:

Court to decide whether Islam-education order went too far

The Associated Press has a report that begins, “After a landlord was convicted of pushing her Muslim tenant down a flight of stairs, a judge ordered her to respect the rights of all Muslims and to take an introductory course on Islam. Now the highest court in Massachusetts is being asked to decide whether the judge violated the landlord’s constitutional rights.”

The case is scheduled to be argued on January 8, 2016 in the Supreme Judicial Court of Massachusetts. You can access the parties’ briefs via the court’s docket entries for the case.

One of the legal profession’s great thinkers has some wisdom for appellate judges (and trial judges) when writing their opinions and orders:

A Way For Courts to Show They Are Serious About Making The Law Accessible — Plain Language Explanations of Appellate Decisions

by richardzorza

Here is an idea for how appellate courts could demonstrate their commitment to making the law accessible. They could include in all decisions a short explanation of the decision in plain language (great examples of plain language in box in linked doc). This would help ensure that the increasing free access now being developed would actually be comprehensible, and would maybe help answer fears that providing such access would be inadequate, misleading, or even cause judicial hostility if it lead to real or apparent failure to understand and correctly argue from cases (for a frightening example, see here).

Including such a plain language explanation might be made a formal requirement by court rule. Appellate court staff would then be responsible for drafting the explanation, for review by the writing judge. Sometimes the staffer would get it wrong — surely a signal that the opinion needed revision to clarify the intent of the court. At other times the staff might be unable to find the words, again an indication of something needing attention. In any event, such a process would surely sensitize staff and judges to the practicalities of plain language.

There are many tools for measuring comprehensibility. Indeed Word has one built in. In an embarrassing disclosure, I should admit that the score using the Flesch-Kincaid Grade Level test for the text above is 11.7, meaning that you would have to be very near graduating from high school to understand it. Oops.

Perhaps some courts should experiment with this, so that they can develop the skills and experience needed, and then share that with others.”