California Bans State Judges From Joining Boy Scouts

By:  Eric G. Young, Esq.

California Supreme Court

On January 23rd, the California Supreme Court unanimously decided that state judges can no longer belong to the Boy Scouts of America.   Under a statewide judicial ethics provision, California’s judges are prohibited from belonging to an organization that “practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.”  (Canon 2C, California Code of Judicial Ethics.)

Until the Court’s decision, this ethics provision was mitigated by two exceptions. First, California judges are permitted to belong to religious organizations notwithstanding those organizations’ discriminatory practices.  Second, judges were permitted to belong to nonprofit youth organizations, an exception implicitly benefiting the Boy Scouts and its member affiliates.

The Court eliminated this second exception, characterizing the Boy Scouts as an organization that practices “invidious discrimination” because it prohibits openly gay Scout leaders from participating in the organization.  In reaching this conclusion, the Court adopted the recommendation of the California Advisory Committee on the Code of Judicial Ethics and the California Judges Association. The decision also brings California in line with a similar prohibition included in 1990 as part of the American Bar Association’s Model Code of Judicial Conduct.

Though unstated in its decision, the underlying rationale for the Court’s decision is, apparently, a concern that state judges retain at least the appearance of impartiality in their conduct.  Such conduct includes the organizations in which state judges declare membership.

On its face, the Court’s decision seems well-founded.  Judicial fairness and impartiality are of paramount concern to society.  Without these, a core function of the judiciary is lost – the ability to follow the rule of law unscrupulously despite the pressures of political will.  And, it is not far-fetched to argue that a judge’s membership in a discriminatory organization like the Boy Scouts gives the appearance that the judge might not be fair and impartial, at least under certain circumstances.

The problem with the California Supreme Court’s approach is that, no matter how laudable its intentions, it may be trampling on state judges’ First Amendment right to free association.  Although not expressly mentioned in the First Amendment, the right to free association was recognized by the U.S. Supreme Court in National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958).  The Court also stressed the importance of the right of free association in Roberts v. United States Jaycees, 468 U.S. 609 (1984) , writing:

“Implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

As an article in BloombergView pointed out, me, you, all of us have a right to join whatever organizations we see fit.  Consequences may result from our decision to join an organization that discriminates against others.  Nevertheless, the freedom of association protects our right to make that decision.  Should the rule of law be different for state judges?  Might it depend on the organization the judge has joined?  For example, what if the case involved a judge who was a member of the Ku Klux Klan?

The answers to such questions are not necessarily clear in a case involving judges. The U.S. Supreme Court has limited government employees’ First Amendment rights under certain circumstances.  See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) [district attorney had no free speech protection for statements made pursuant to his public duties].  The Court might well decide that similar limitations ought to apply to state judges – particularly when judicial impartiality is at issue – and leave regulation of such conduct up to the states.

On the other hand, in the first campaign finance case to involve the judiciary, the U.S. Supreme Court heard oral arguments on January 20th in Williams-Yulee v. The Florida Bar.  Williams-Yulee raises the issue whether state judicial candidates have a First Amendment right to solicit campaign contributions.  As an NPR article observed, 30 states currently have laws banning such solicitations. Like the ban announced by the California Supreme Court, the reasoning behind laws prohibiting judges from soliciting campaign contributions is to preserve judicial impartiality.

State laws banning campaign solicitations by judges, however, presumably have no more force than state ethics provisions pertaining to judges.  Therefore, if the U.S. Supreme Court disapproves of campaign finance bans and recognizes a First Amendment right among state judicial candidates to solicit campaign contributions – despite impartiality concerns – then state judges may have some right to free association under the First Amendment notwithstanding impartiality concerns.  If that is the case, then California’s ban may be of dubious constitutionality.

Supreme Court Strikes Down Calif. Video Game Law

Reprinted from my blog, Cyber-Esq.  The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”

On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far.  Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation.  However, because of the litigation, the law never went into effect.

This is the highest-level decision to date on the subject of legal restrictions on violent video games.  In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies.  Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words.  These protections do not wane with the advent of new technologies.  As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”

On the question of “strict scrutiny,” the Court found that California failed to meet its burden.  Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media.  In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.

According to an article in ZDNet:

“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”

What do you think of the Court’s decision?  In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction.  Is this a defensible analogy to violent video games?

 

Ohio Law Student Not Qualified To Be Atty If Debts Not Paid, Supreme Court Rules

According to an ABA Journal article, Ohio’s highest court has ruled law grad Hassan Jonathan Griffin of Columbus, Ohio failed to satisfy the “character and fitness qualification” requirements to be an attorney because he had no visible means to pay back his law school loans or credit card debt.  Mr. Griffin works part-time in the public defender’s office, earning $12/hour.  He has $170,000 in loan debt and $16,500 in credit card debt.  Griffin provided information that he was remaining at his part-time job in the hopes that it would become a full-time position

To the Ohio Supreme Court, these facts rendered Griffin unfit to practice law based on low moral character.  The opinion is downloaded to the Box for those who wish to review it.

Frankly, and I agree with the ABA writers, this decision is outrageous!  In my opinion, this young man is being penalized for a legal education system that yokes its students with back-breaking student loan debt, often well into the hundreds of thousands of dollars.  The fact that Griffin is working – whether part-time or full-time – in a public interest career ought to be encouraged, not be grounds for punishment or banishment.  In fact, it is not at all unusual – instead, quite typical – for public interest jobs to be less than full-time at first, often working into more stable situations for those graduates that are able to stick it out.  In the present economy, Griffin is not doing anything extraordinary – certainly not immoral – when you consider the many articles recommending volunteer work as a means to land a full-time job.

If Mr. Griffin has any further avenues available to him to pursue this matter, this author strongly encourages him to do so against what is truly an inequitable decision, one with far-reaching implications.  For example, what if Mr. Griffin – like me – wanted to go directly into his own solo law practice, but lacked any clients at first.  Would that evidence insufficient morals to practice law?  If so, then can only the super rich, or super lucky, practice law in Ohio?

 

 

California Governor Signs “Expedited Jury Trials Act”

As many already know, alternative dispute resolution (ADR) is a common feature in today’s civil litigation.  The goal of ADR is to assist litigants in resolving their disputes without the need for a full-blown jury trial on the merits of an action.  ADR can take many forms, including arbitration, mediation and early neutral evaluation.

One form of ADR that never seemed to gain traction in most jurisdictions, however, is the “summary jury trial.”  (See, Thomas B. Metzloff, Reconfiguring the Summary Jury Trial, 41 DUKE L.J. 806, 806. (1992).)  Typically, a “summary jury trial” involves a smaller number of jurors impaneled to hear cases with a lower dollar value, and the proceedings are usually limited to a short period of time (e.g., less than one day’s trial time).  Ordinarily, both sides must agree in order to submit a case to such a procedure.

One jurisdiction where “summary jury trials” have been used in some civil matters is South Carolina.  You will find a law review article entitled Summary Jury Trial in Charleston County, South Carolina in the Box, which discusses the use of this ADR procedure in South Carolina.

Now, the “summary jury trial” is expected to become a more oft-used feature of California’s ADR processes.  On September 30, 2010, Governor Arnold Schwarzenegger signed into law Assembly Bill 2284 known as the Expedited Jury Trials Act.  The Act will take effect on January 1, 2011 and self-expire on January 1, 2016 unless a later-enacted statute deletes or extends the date.  The Act is modeled on South Carolina’s “summary jury trials.”

How Will Summary Jury Trials Work In California?

Under the Act, the parties to a civil dispute must agree to submit their case to this procedure; they cannot be compelled to submit their case to the procedure.  Their case will be heard by a jury of eight jurors (or fewer in some circumstances) with no alternates, and six of these jurors must agree on a verdict.  Counsel will be limited to three peremptory challenges.  Each side will have no more than about three hours in which to present their cases.  They must waive their right to appeal an adverse decision or to make certain other post-trial motions.  Finally, expedited jury trials will typically involve “high/low agreements”, a written agreement entered into by the parties specifying a minimum amount of damages a plaintiff is guaranteed to receive from the defendant and a maximum amount of damages that the defendant will be liable for regardless of the ultimate verdict returned by the jury.

Goal Of Summary Civil Trials

Like many states, California has a severe backlog of cases percolating through the judicial system.  Many of these are low-value cases.  The proponents of the Act contend that the procedure has the potential to drastically reduce the cost of such litigation as well as relieve the court’s docket.

What do you think?  Do you think ADR is a good idea in general?  What about “summary” or “expedited” jury trial in particular?

Related articles

• Are Trials About to Get Quicker in California? (blogs.wsj.com)

Elena Kagan Faces First Vote In Senate; Party Line Vote Expected

Image via Wikipedia

This morning, the Senate Judiciary Committee is wrapping up its confirmation hearings for Supreme Court nominee, Solicitor General Elena Kagan.  Much of the speech in opposition to General Kagan centers on an alleged lack of appropriate experience for the Supreme Court.  While listening to the hearings, it seemed appropriate to provide a quick summary of General Kagan’s legal experience and qualifications:

1. Masters in Philosophy, Oxford University, 1983
2. Graduate, Magna Cum Laude, Harvard Law School, 1986
3. Law Clerk to Supreme Court Justice Thurgood Marshall, 1988
4. Counsel to President Clinton, 1995-1999
5. Appellate Justice, D.C. Circuit Court of Appeals, 1999-2003
6. First female Dean of Harvard Law School, 2003-2009
7. First female Solicitor General, appointed January 5, 2010

Aside from an apparent lack of experience as a practicing attorney, General Kagan brings strong academic credentials and judicial experience on the Nation’s most powerful appellate bench.  It is singularly interesting to watch one Republican after another decry General Kagan’s nomination when many, if not most, of these same Senators were all but committed to supporting President George W. Bush‘s failed nomination of White House Counsel Harriet Miers, a far more political position than Solicitor General.

You can watch the hearings on C-Span3’s Live Stream.  You can read a full overview of General Kagan’s background here.

Map Of U.S. Circuit Courts of Appeal Available In The Box

Have you ever wondered what the geographic boundaries of the U.S. Courts of Appeal are?  How about the U.S. District Courts?  If you have, then you may want to check out the excellent map in The Box, courtesy of Wikipedia.  The map shows each of the 11 U.S Circuit Courts of Appeal’s territories as well as the District Court territories within them.  This map would be a useful teaching tool for teachers or for student projects.  Link to the Wikipedia article here.

Enjoy!

Jury Hits Pharma Giant Novartis With Sex Discrimination Verdict

Breaking News from NYC:

A NYC jury has rendered a verdict against pharmaceutical giant, Novartis, finding that the company had engaged in a pattern and practice of discrimination against women.  In particular, the jury found that the company paid women less than men and treated pregnant women unfavorably.  You can link to an article from ABC News here, discussing the case.

Second Sex Discrimination Verdict Against Novartis:

This verdict is the second sex discrimination verdict the company has suffered in the last few months.  In early March, a jury in the United States District Court for the District of Columbia rendered a verdict in favor of pharmaceutical sales representative Mary Kate Breeden against Novartis, awarding her $289,669on on a claim of retaliation for taking leave under the Family and Medical Leave Act (FMLA).

Senate Confirms Denny Chin To Second Circuit Court of Appeals

Today, the Senate voted 98-0 to confirm President Obama’s nominee, Judge Denny Chin, to serve on the United States Court of Appeals for the Second Circuit.  President Obama nominated Judge Chin in October of 2009.   Unfortunately, as part of the GOP’s overall strategy of blocking any federal government action by the Obama administration, Judge Chin’s nomination had been subject to a GOP filibuster effort.  This effort was ended when Democrats pushed successfully for cloture earlier this month, which you can read more about here.

To illustrate the ridiculousness, dis-ingenuousness, and dangerousness of the GOP’s filibuster policy, once the filibuster was broken by cloture, the Senate voted 98-0 to confirm Judge Chin.  This clearly demonstrates the GOP is simply trying to bring the Obama government to a standstill for whatever sad political gain they think it will give them instead of acting on genuine principles or policies.  All Americans should join together in denouncing the GOP’s actions as nothing more than political trickery, if not closely approaching a violation of the oaths the Senators take when assuming their offices.

Judge Chin will become the only Asian-American judge to sit on a federal Court of Appeals.  He gained notoriety recently as the judge who presided over the Bernie Madoff trial in which he sentenced Madoff to 150 years in prison for the largest-ever Ponzi scheme.

Judge Chin is widely viewed by most moderates and many liberals as an excellent choice by the Obama administration to fill the vacant seat on the Second District from which United States Supreme Court Justice Sonia Sotomayor was also chosen.

The Second Circuit is well-known as a federal appeals court which hears many white collar and finance-related crimes and wrongs, so our country certainly needs the best possible judges on this circuit in the wake of such outrageous wrongs as the Madoff scandal and the current allegations against Goldman Sachs.

You can read more about the Chin nomination here and here.

If you agree with me that the GOP’s filibuster tactics are wrong, join my Twitter stream here.  I frequently tweet about this issue as well as other progressive causes.

I also ask anyone who is as concerned about the actions of the GOP on the workings of the federal government, particularly President Obama’s administration, I ask that you join the Facebook cause, “I Support My President,” here.

Breaking News! Justice John Paul Stevens To Retire This Summer

The legal world was met with the news this morning that Justice John Paul Stevens, the senior-most member of the U.S. Supreme Court will retire this summer. The ABA Journal Law News Now released an interesting article this morning detailing two of Justice Stevens’ top cases while serving on the High Court.

clipped from www.abajournal.com Stevens’ Top Cases: Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) Rasul let Guantanamo Bay detainees challenge their imprisonment in federal courts; Hamdan “invalidated the use of military commissions, rejecting the Bush administration’s claim to unlimited executive power.” (Lawrence Rosenthal, clerk, 1983-1984) “The cases changed the framework of the way the U.S. fought terrorism.” (Joseph Thai, clerk, 2000-2001) AP Photo

Judge orders UC to repay $38 million in student fees – Inside Bay Area

Judge orders UC to repay $38 million in student fees – Inside Bay Area.

Very interesting article about the outcome of lawsuit against UC for fee hikes in certain programs.  My opinion is that the Judge is right on the mark here.  What do you think?