Criminal Law Library Blog

Two days ago I posted information on this blog related to the New York Court of Appeals decision (Maron v. Silver, 16 ' Larabee v. Governor, 7 ; Chief Judge v. Governor, 18) addressing judicial compensation in that state within the framework of separation of powers. Today I have learned that the State of Connecticut is also confronted with separation of powers issues related to its judiciary. These issues relate at least in part to the unilateral reduction of Other Judicial Expense line items (where the law libraries are placed) by the Office of Policy and Management (Executive Branch) after the initial budget allocations have presumably been agreed upon.

Of special concern to many readers of this blog is the severe negative impact these judicial line item reductions are having on judicial law libraries in the State of Connecicut, as indicated in testimony of the Connecticut Chief Court Administrator to the Appropriations Committee included in this post and by the many expressions of concern among Connecticut citizens as reported elsewhere.

The Chief Court Administrator of Connecticut, Judge Barbara M. Quinn has argued before the Appropriations Committee on February 9 that the unilateral reduction of Other Judicial Expense line items by the Executive Branch infringes on the Separation of Powers and can be remedied by OPM simply transmitting the Judicial request unchanged to the legislature. Two sections of Judge Quinn's testimony are especially important and are highlighted below in this posting. The section on Law Libraries which highlights the importance of law libraries in Connecticut to both the Judiciary and the public has relevance both in Connecticut and throughout the nation. A second part of Judge Quinn's testimony highlighted below is her statement on "Concurrence in Allotment Reductions and Rescissions," which frames the issue nicely.

Sections of Testimony Highlighted:

Law Libraries
"The Governor's proposed budget provides no funding for law libraries. If this provision is enacted, it will be the second year in a row of zero funding. This is a critical gap; law libraries cannot function without updated research materials.

Let me explain something about law libraries that makes them different from your local library where perhaps you could curtail purchasing new books for a while and then start up again. Because the law is constantly evolving, the most up-to-date information must be made available to anyone who has cases pending before the court. Up-to-date legal research tools, in both electronic and printed form, are essential in order for judges to render rulings that are consistent with law and legal precedent because case law is only as good as the last case decided. And that case law is updated daily. This is what makes law libraries distinct from other libraries - just not buying the latest books is not an option"

Concurrence in allotment reductions and rescissions
Undoubtedly, the most critical budget reform that we seek is one that would curb the unilateral and increasingly untenable budget reductions that are imposed upon the Branch after the Legislature has adopted the budget. Virtually all of our budgetary problems over the past 2 years, and in particular this year, are the result of allotment reductions and rescissions about which neither the Branch nor the Legislature were consulted. I would respectfully propose to you that in the future, any post-budget adoption reductions that are made to the Judicial Branch should require the concurrence of the Legislature. The Branch will be submitting legislation for your consideration that would implement these vital budget reforms.

A bill, "An Act Concerning Funding For the Judicial Branch" (No. 5148) which seeks to correct the matter has recently been introduced in the Connecticut legislature.

Below are links to the full text of both the Testimony and pending legislation referred to in this posting.

Testimony of Chief Court Administrator to Appropriations Commett

An Act Concerning Funding For the Judicial Branch

On February 23, 2010 a divided Panel of the Appellate Division, First Department, New York Supreme Court ruled in People v. Correa (2010 NY Slip Op. 01533) that the 2004 merger of the criminal courts in the Bronx into a single court with jurisdiction to handle both felonies and misdemeanors is unconstitutional.

In the absence of a stay, misdemeanor cases will again only be assigned to judges who have been appointed to the New York Supreme Court. The plan is for judges to continue sitting in hybrid parts, with misdemeanors being heard as Criminal Court cases and felonies as Supreme Court matters.

In dissent, Justice Rolando T. Acosta warned that the majority's "unbridled judicial activism effectively upends tens of thousands of mesdemeanor convictions in Bronx County over the past five years."

Those who need additional background information are referred to the link below to the New York City Bar. Report on the Merger of the Bronx Supreme and Criminal Courts, June 2009.

ABCNY Report on the Merger of the Bronx Supreme and Criminal Courts, June 2009

February 23, 2010

In a 5 - 1 decision the New York Court of Appeals found that the legislature and the executive branches had undermined the independence of the judicial branch by tying judges pay raises to unrelated legislation, including bills to raise legislators own salaries, thereby violating the separation of powers doctrine. The last pay raise for New York judges was in 1998.

In his dissent Judge Robert S. Smith stated that while he shares his colleagues' dismay at the Legislature's behavior in dealing with, or rather failing to deal with, judges' salaries, he "cannot agree that any of its actions or inactions are unconstitutional...."

The current Chier Judge of the Court of Appeals, Jonathan Lippman, recused himself from the deliberations because he was a plaintiff in one of the cases the ruling addresses.

Public Statement of Chief Judge Jonathan Lippman, delivered on February 23, 2010 at 1:PM.

Here are excerpts from the beginning and end of the decision:

PIGOTT, J.:

"The constitutional arguments raised in these judicial compensation appeals are premised upon, among other things, alleged violations of the New York State Constitution's Compensation Clause and the Separation of Powers Doctrine. Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers Doctrine."

Conclusion
It is unfortunate that this Court has been called upon to adjudicate constitutional issues relative to an underlying matter upon which all have agreed; namely, that the Judiciary is entitled to a compensation adjustment. By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature. Therefore, judicial compensation, when addressed by the Legislature in
present and future budget deliberations cannot depend on unrelated policy initiatives or legislative compensation adjustments. Of course, whether judicial compensation should be
adjusted, and by how much, is within the province of the Legislature. It should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court (see Marbury v Madison, 1 Cranch 137, 177 [1803]). We therefore expect appropriate and expeditious legislative consideration.

Accordingly, In Maron, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for - 35 - No. 016; 017; 018 - 35 - further proceedings in accordance with this opinion, and as so modified, affirmed.

In Larabee, the order of Appellate Division should be modified, and in Chief Judge, the judgment of Supreme Court and the order of the Appellate Division should be modified, without costs, by granting judgment declaring that under the circumstances of these cases, as a matter of law, the State defendants' failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine, and by allowing for the remedy discussed in this opinion, and, asmodified, affirmed.

SEE FULL TEXT OF DECISION AT:

New York Court of Appeals Judicial Compensation Decision February 23, 2010

Continue reading "New York Court of Appeals Decision Regarding Dispute Over Judicial Compensation" »

From the New York Times February 17-18, 2010.

The following are two very informative profiles from the New York Times:

The first profile contains both information about Hon. Jonathan Lippman and emphasizes the impact he has had during his first year as Chief Judge of the New York Court of Appeals:

Top Judge Sets Liberal Course for New York
By WILLIAM GLABERSON
Published: February 17, 2010
Jonathan Lippman has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel.

The second profile discusses various perceptions of David Paterson as Governor of the State of New York:

As Campaign Nears, Paterson Is Seen as Increasingly Remote
By DANNY HAKIM, SERGE F. KOVALESKI and NICHOLAS CONFESSORE
Published: February 18, 2010
Interviews with aides, legislators and friends reveal criticism about the management and election efforts by Gov. David A. Paterson of New York.

Volume 2 Number 1
January 7, 2010

State Courts & the Economy is an e-newsletter published by the National Center for State Courts.

Contents of this issue:

Courts Starting to Bear the Brunt of the Recession
Close Some Courthouses, But Build New Ones, Too?
Budget Cuts Go to Court
State-by-State Budget News

Includes both useful resources and a request for information from the courts.

Nora Sydow reports that the National Center for State Courts (NCSC) has recently developed a Social Media and the Courts web module. Included in this module is a state links page that links to courts that are using Twitter, Facebook, YouTube, etc. In an effort to make this page as complete as possible, we are asking for your help.

(1) If your court is using a social media site, could you please send me the link(s) so we can include them in our state links page?

(2) If your court has established a social media policy, either for employee use of social media sites and/or a policy that governs the court’s own social media sites, could you please send me a copy of your policy?

Please send any information you can provide to:

Nora E. Sydow
Knowledge and Information Services Analyst
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
voice: 757.259.1509
fax: 757.564.2041
email: nsydow@ncsc.org

Visit the new NCSC website at www.ncsc.org.

Yesterday January 19, 2010 New York State Governor David Paterson proposed a 2010-11 Executive Budget that according to a Press Release from the Governor's Office "makes significant spending reductions in order to eliminate a $7.4 billion deficit and institutes key reforms to put New York on the road to economic and fiscal recovery. The Executive Budget proposal includes spending reductions across every area of the budget; limits State spending to far below both the Governor's proposed spending cap and the rate of inflation; implements the most significant public higher education reforms in a generation; and provides fiscal relief to local governments through an aggressive mandate reform agenda."

Below are links to some of the documents related to that proposal. Some of these documents are related primarily to the proposed State of New York Executive Budget as a whole while others include various agency presnetations, A link to State of New York Chief Judge Jonathan Lippman's commentary on the Governors observations regarding the judiciary part of the budget proposal is also included.

Link to Press Release , video presentation and various other documents related to Governors budget Address on January 19:

http://www.state.ny.us/governor/press/2010budgetaddress.html .

2010-2011 Governors Budget Proposal - Agency Presentations
http://publications.budget.state.ny.us/eBudget1011/agencyPresentations/pdf/AgencyPresentations.pdf

New York State Chief Judge Jonathan Lippman's Statemeont on Proposed 2010-11 Judiciary Budget
http://www.nycourts.gov/press/pr2010_01.shtml

Hon. Randall T. Shepard, Chief Justice of the Indiana Supreme Court, has been selected as the recipient of the Sixth Annual Dwight D. Opperman Award for Judicial Excellence. Chief Justice Shepard was chosen by a three-member panel: Hon. Judith S. Kaye, former Chief Judge of the New York Court of Appeals; Justice Ronald Robie, California Court of Appeal–Third Appellate District; and Judge Frederic Rodgers, Gilpin Combined Courts, Colorado. The award will be presented in early 2010.

See this American Judicature Society News Release for more details.

Letter:
Remarkable Work By State Judges*

In "10 Suggestions for Court Reform," New York City Corporation Counsel Michael A. Cardozo notes that our nation's state courts are in crisis. Many of society's most intractable problems end up in the state courts, particularly during economic downturns. In New York, this has been especially true. Throughout the state, filings continue to spiral, in every case category. Over the past five years, filings in New York City have risen in Family Court by 24 percent and in Criminal Court by 19 percent, as well as in Civil Court and in Supreme Civil and Supreme Criminal. One result of this, for example, is that a judge in the Civil Term of Supreme Court in New York City has a caseload that exceeds 600 cases, and a judge in the New York City Family Court can handle over 1,000 cases at any one time. Recent efforts to create additional judgeships, which will help alleviate these massive inventories, have yet to meet with success.

At the same time that judges are being asked to manage their burgeoning caseloads, the maddening stalemate over judicial salaries continues. New York's judges are about to enter their 12th year without a single cost-of-living adjustment. No other judges in the country have gone anywhere near that long without an increase.

Despite these extraordinarily challenging circumstances, our judges have been disposing of record numbers of cases - more than 1.5 million will be resolved this year in New York City alone. Their performance has been nothing less than remarkable, a fact that all too often receives less recognition than it should.

Ann Pfau
The author is chief administrative judge of New York.
______________________
*This letter also appears in the New York Law Journal, Tuesday December 8, 2009, p 6 col. 4

TITLE: Gay Families and the Courts
SUBTITLE: The Quest for Equal Rights
AUTHOR: Susan Gluck Mezey
PUBLICATION DATE: September 2009
PUBLISHER: Bowman & Littlefield Publishers, Inc.
PAGE COUNT: 300 pp.
ISBN: 0-7425-6219-0 (Paper)
0-7425-6218-2 (Cloth)
PROBABLE PRICE: $27.95 (Paper)
$70.00 (Cloth)

Mezey (political science–Loyola Chicago) is an established author in the legal rights realm as it relates to women and minority groups. The relationship between public policy and the law as it pertains to LGBT issues is explored in an attempt to clarify where the courts stand with respect to the extent to which gay rights permeates marriage and the family, as well as the level to which a maturing framework for social change manifests itself within an evolving legal system.

Mezey’s work is an excellent primer for the researcher of high-profile gay rights issues, such as same-sex marriage and freedom of association. The manner in which judges in various states have analyzed, dissected, and parsed opposing arguments is presented in great detail. Common legal trends that cross state lines are noted, as the author explains the challenges facing plaintiffs who pursue untested notions. Mezey concludes that the concept of a constitutional guarantee of the right to same-sex marriage is doomed to failure as long as the judiciary refuses to embrace a theory of social change which incorporates a framework for marriage that includes both procreation and the social well-being of children within a society that permits marriage between members of the same sex.

Superbly indexed by subject heading as well as case law, the author also provides an invaluable bibliography of print and electronic resources to assist the reader. The book is aimed at an academic audience and is thus recommended mainly for college, university, and law libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York

David Badertscher

One hundred years ago last Tuesday (November 3, 1909) the criminal court building in Manhattan (bounded by Centre, Lafayette, Franklin, and White Streets) was declared unsafe for human occupancy and everyone in the building at the time was ordered to leave immediately.

According to a New York Times article Written the following day, "when the last man was out a squad of thirty policemen under Inspector Daley and Captain Galvin took charge of the building, roping it off on all sides and remaining on guard outside the building to forbid anyone to enter or even pass through any of the flanking streets".

Courts housed in the building at the time included the Criminal Branch of the Supreme Court, the various parts of General Sessions, the Court of Special Sessions, the Coroner's Court, the Tombs Court, and the District Attorney of New York County offices.

Judge Mulqueen of General Sessions said the condemming of the building had been expected. By 1906 the building had been settling, cracks were appearing in the walls, plaster fell, and many doors and windows were out of plumb.

According to the New York Times article, Judge Mulqueen also remarked that for months before the condemnation "...the holding of court in any of the rooms of the building was a nerve testing feat". He declared that when a subway train passed through Layfayette street the vibration in the building "caused the chair in which he sat hearing cases to tremble under him."

Des Moines, IA — September 1, 2009 — According to an editorial in the latest issue of
Judicature, the journal of the American Judicature Society, the U.S. Supreme Court decision in
Caperton v. Massey Coal Company is a wake-up call for states to take disqualification seriously.

The editorial explains that “If state judicial systems have procedures in place to ensure that
judges understand and follow more exacting disqualification rules, legitimate due process
problems need never arise.” Caperton held that West Virginia Supreme Court Justice Brent
Benjamin’s failure to recuse himself in a case involving a litigant who supported his election
campaign was a violation of due process.

The editorial recommends judicial education programs that identify factors judges should
consider when deciding whether campaign support they have received gives rise to a
disqualifying appearance of partiality; having contested disqualification motions assigned to a
different judge for final resolution; and, in the highest courts of each state, establishing a
procedure to review disqualification decisions of individual justices by the remainder of the court
or a special panel of judges. The editorial concludes that such procedures will foster public
confidence in the expeditious administration of justice.

The full editorial is available at www.ajs.org or by calling 800-626-4089.

In their September 8 article in Bloomberg News, Cary O'Reilly and Linda Sandler write that "[A]s the White House and Congress debate how to regulate financial crisis, judges have assumed the point position of punishing Wall Street for causing the worst recession since the 1930s." O'Reilly and Sandler point out that while the executive and legislative branches of government continue to discuss the possibilities of implementing various reforms as a response to the financial crisis that began approximately a year ago, "judges are [actually] taking the first steps toward the same goal, punishing executives and issuing rulings with national impact." In their article O'Reilly and Sandler go on to enumerate specific examples of how some judges have proceeded along this path.

In response to criticism it received for submitting and all-male list with only one black of seven candidates to New York Governor David A. Paterson last December to fill a New York Court of Appeals opening created by the retirement of then Chief Judge Judith S. Kaye, the New York Commission on Judicial Nominations has released for public comment a number of proposed rule changes, Proposed Revisions to the Rules of the Commission on Judicial Nominations: Title 22 N.Y.C.R.R. Section 7100. The proposed revisions announced in a Press Release by the Commission on July 20; a 45 day comment period on the rules is expected to begin next week.:

Press Release Announce Proposed Rule Revisions

Download fileles of the New York Commission on Judical Nominations

Corey Rayburn Yung who teaches criminal law and procedure at the John Marshall Law School has posted a draft paper (Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Court of Appeals) on SSRN. Professor Yung's scholarship is primarily focused on sex crimes and judicial decision-making. Here is an Abstract of the paper:

July 15, 2009

Abstract: Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Court of Appeals

Corey Rayburn Yung
The John Marshall Law School

Existing empirical scholarship about judicial activism has almost exclusively focused on 1) the United States Supreme Court; and 2) actions by the judiciary which invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on inter-branch and inter-governmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts.

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures a judge’s privileging of his or her judgment above others. Using a newly created dataset which includes 2008 cases which applied a standard of review from the eleven numbered circuits and the D.C. Circuit, the study is able to assess the activism of individual federal appellate judges. The article finds that there is no statistically significant correlation between activism of judges and the political party of the appointing President, the particular President who appointed the judge, and whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual Courts of Appeals vary substantially in their levels of judicial activism.

This draft analyzes data from nine Circuits including 6,626 cases and 19,869 judicial votes.

Keywords: judicial activism, empirical, courts of appeals, federal appellate courts, judicial restraint

Ten top stories.

July 10, 2009.

Editor's Note: Check back at ABAJournal.com starting Monday for live coverage of the Sonia Sotomayor confirmation hearings. The Journal's U.S. Supreme Court expert Richard Brust will post highlights from the Senate committee Q&A.

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Women in the Law
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Labor & Employment Law
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Layoffs
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Law Schools
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10 Top Stories June 19, 2009.

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Associates
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Law Firms
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Constitutional Law
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Judiciary
Judge Orders Spectator Jailed for Shouting 'Love You'
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Religious Law
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Uncertainty in Law Circles Over New Court Ruling for Judges
By JOHN SCHWARTZ
Published: June 10, 2009 by the New York Times

"Lawyers across the country said that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases.,,,"

In the U.S. Supreme Court case, Caperton v. A. T. Massey Coal Company, (No. 08-22) decided on June 8, 2009a coal executive had spent $3 million to help elect a justice of the West Virginia Supreme Court. The justice then voted twice to throw out a $50 million judgment against the executives company.

See decision at: http://supct.law.cornell.edu/supct/html/08-22.ZS.html

The Association of the Bar of the City of New York (New York City Bar) has just published its Report on the Merger of the Bronx Supreme and Criminal Courts. Commenting on the Report in his June 11, 2009 New York Law Journal article, "City Bar Report Cites 'Serious Problems' With Bronx Merger", Daniel Wise writes: "The merger of Criminal and Supreme courts in the Bronx has created 'serious problems' if additional judicial resources are not made available, a report by the New York City Bar Concluded." In the Report it is recommended that "strong and immediate attempts" need to be taken to handle a growing backlog of felony cases.

The New York City Bar report was prepared by the Committee on Criminal Courts and the Committee on Criminal Justice Operations, both committees of the Association of the Bar of the City of New York and released on June 10, 2009. Below is an excerpt from the Opening Statement and a link to the complete report:

Opening Statement Excerpt:
In early 2004, Chief Judge Judith S. Kaye announced that the Supreme and Criminal Courts in Bronx County would be merged to create a new Criminal Division to handle all misdemeanor and felony cases.1 This judicial experiment was implemented in November, 2004. Prior to this, in New York Citys criminal justice system all post-indictment felony cases were prosecuted exclusively in the Supreme Court, and all misdemeanor cases were prosecuted exclusively in the Criminal Court of the City of New York. The stated purpose of Merger was: to promote the administration of justice in the criminal courts in Bronx County by authorizing deployment of the judges of those courts in a manner that assures that all present and future caseload demands in such county will be met as expeditiously as possible.

It was generally acknowledged prior to Merger that because of the overwhelming crush of misdemeanor cases filed annually, the Criminal Court of the City of New York was staggering under an insurmountable misdemeanor trial calendar. For example, in 2003, the last full year before Merger, out of more than 40,000 misdemeanor complaints filed in Bronx County Criminal Court, only 191 misdemeanor cases were tried. While the problem was not unique to Bronx County, the Bronx was chosen to serve as the judicial Petri dish for the purpose of determining whether Merger, if successful, should be extended to the other counties of New York City as well.

Merger has now been in effect for almost five years and it appears that while the program has reduced the backlog in misdemeanor trials it has had the unintended consequence of creating a far greater backlog in felony trials. This report will evaluate the stated goals of the Merger against an analysis of its actual results. It will address a statistical analysis of caseloads prior to and after Merger, the practical effects of implementing Merger, its future prospects, and a conclusion as to its effectiveness and potential expansion to other jurisdictions. This report is based upon statistics from the Office of Court Administration, and extensive interviews of members of the judiciary, prosecutors and criminal defense attorneys.

New York City Bar Report on the Merger of the Bronx Supreme and Criminal Courts

Top Ten Stories of the Week ending May 29, 2009:

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