Two law of lawyering cases open new SCOTUS term // Renee Knake

Renee Knake (Michigan State) on whom we have come to rely to keep us p to date on the U.S. Supreme Court's review of cases involving the "law of lawyering" has done it again - reviewing seven cases on which cert has already been granted. Here are capsules of the two to be argued this Tuesday. For the balance click on Legal Ethics Forum: - GWC"
Maples v. Thomas. In Maples (otherwise known as the mailroom mix-up case), the Court will consider whether a death row prisoner's failure to appeal a decision because it was sent to his attorneys at an address where they no longer worked constitutes cause to excuse procedural default.

Martinez v. Ryan. This case questions whether a criminal defendant, prohibited under state law from raising an ineffective assistance claim on direct appeal but allowed to raise the claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance from his first post-conviction counsel's handling of his ineffective-assistance-of-trial-counsel claim. Steve Vladeck offers a helpful summary over on SCOTUSblog, link here."

'via Blog this'

Police Lineups Start to Face Fact - Eyes Can Lie - NYTimes.com

The New Jersey Supreme Court has mandated pre-trial hearings when there is evidence of suggestiveness in the conduct of a police lineup.  And it has directed that juries be instructed in the factors that social science has shown make eyewitness identifications an often unreliable guide to the truth.  As a trial lawyer for the Public Defender early in my career we knew that to be true.  We cross-examined on things like weapon focus (you were looking at the gun, couldn't take your eyes off the gun, could you?').  But judges were entirely satisfied to allow the evidence to go unscrutinized to the black box of the jury room.  - GWC
Police Lineups Start to Face Fact - Eyes Can Lie - NYTimes.com:

The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

'via Blog this'

Legal Ethics Forum: Supreme Court Recap

From Renee Knake at Legal Ethics Forum

A recap of the Supreme Court's cases this past term on the law governing lawyers.

The powerful win, mainly.

Braun: N.J. Supreme Court lacking available justices to rule on school financing | NJ.com

David Sciarra, Education Law Center attorney, arguing before
an NJ Supreme Court reduced by two recusals 

Braun: N.J. Supreme Court lacking available justices to rule on school financing | NJ.com:
by Robert Braun, The Star Ledger
"TRENTON — The New Jersey Supreme Court is soon expected to render a critically important decision on school finance, a decision that may be clouded by the reduced number of justices hearing the case and questions of why some members of the panel disqualified themselves from sitting in judgment and why one — Associate Justice Helen Hoens, whose husband works for the governor — did not.
'This is a very tricky set of circumstances,' says Robert Williams, a professor at Rutgers Law School in Camden who studies state constitutional law. 'A lot is at stake.'"

Supreme Court needs an ethics code: John Leubsdorf on Bloomberg

Rutgers Law School: John Leubsdorf was a Reporter for the American Law Institute's Restatement of the Law Governing Lawyers

Ethics Profs call for Supreme Court to abide by Canons of Judicial Ethics

Justice Clarence Thomas's failure to report his wife's income, and his and Justice Scalia's recent attendance at a Koch Brothers strategy session have raised questions about judicial independence.


Alliance for Justice has organized a letter to Congress by ethics professors urging that the Supreme Court's members be bound by the same rules as other judges - the Code of Conduct for United States Judges. The letter begins 

Justices of the United States Supreme Court have not adopted and are not subject to a comprehensive code of judicial ethics.  Nor are denials of motions to recuse by individual justices required to be in writing or subject to review.  Recent media reports have focused public attention on this situation.  The purpose of this letter is to issue a nonpartisan call for the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court

The complete text is HERE.

NJ Supreme Court Justice Rivera-Soto will step down

NJ Senate President Sweeney and Justice Rivera-Soto

Roberto Rivera-Soto, an Associate Justice of the New Jersey Supreme Court, has announced he will not seek tenure and renomination when his initial seven year term ends later this year.

The jurist has refused to vote on any case in which a temporarily assigned member of the court sits. He believes that the court is unconstitutionally constituted and its actions are "ultra vires" because he interprets the state constitution's grant of authority to make temporary appointments as limited to those necessary to constitute a quorum. 

The court has one vacancy because the Democratic State Senate President Stephen Sweeney refuses to consider a pending nomination as a protest over Gov. Chris Christie's refusal to nominate for tenure the court's sole African American member because in Christie's view Wallace was a member of a liberal bloc which the governor seeks to dismantle.

N.J. Supreme Court Justice to Step Down - Metropolis - WSJ

NJ Law Journal Editorial Bd: Justice Rivera - return to duty or resign

The Editorial Board of the New Jersey Law Journal has called upon Associate Justice Roberto Rivera Soto to cease his abstention from voting on decisions of the court or resign:
Copyright ALM Media, LLC (2010) all rights reserved.  Further reproduction only by permission of ALM Media, LLC.

Abstention From Duty

New Jersey Law Journal

December 17, 2010

We are appalled at the behavior of New Jersey Supreme Court Justice Roberto Rivera-Soto. In two unrelated cases, Henry v. Department of Human Services and Johnson v. Johnson , he has unleashed an unprecedented attack upon the Court on which he sits, unnecessarily and wrongheadedly dragging the Court into the political impasse over appointments between the Republican governor and the Democratic-controlled Senate.


Worse, in refusing to acknowledge the legitimacy of the Court's majority conclusion that temporary assignments of judges to fill vacancies are permitted under the state constitution even when there is a quorum, he has declared the Court's composition to be illegitimate and unconstitutional and has announced he will abstain from future votes as long as the appointee in question, Judge Edwin Stern, sits with the Court. His actions go far beyond the bounds of legitimate disagreement among appellate judges


The New Jersey Constitution's Temporary Assignment Clause, art. VI, § 2, ¶ 1, allows the chief justice to appoint a replacement justice "when necessary." Reasonable minds can differ whether that language means that appointment can be made whenever there is a vacancy or only when there is a lack of a quorum. Since the Court's inception in 1948, chief justices have made hundreds of these appointments, most of them when the Court had five or more sitting members and a quorum was not at issue. We recently agreed with the Court's interpretation that temporary assignments could be made to fill any vacancy and argued that this should be done consistently to avoid tie votes.


However, we strongly disagree with the academic argument on which Justice Rivera-Soto relied, which is that "when necessary" means only when essential to create a quorum so that the Court may act. From the earliest days of federal constitutional law, it has been understood that "necessary" is a broad grant of power to act when useful or desirable, rather than a limitation to act only when essential. The drafting history of the Temporary Assignment Clause, set out in Chief Justice Stuart Rabner's concurrence in Henry , demonstrates that the framers of the 1947 constitution understood "necessary" as a grant of power rather than a limitation, which is consistent with their overall intent to create a powerful and autonomous judiciary. While there is a place for honest debate on the point, there is none for acting above the law.


History shows us that angry and frustrated dissenters can attack not only the reasoning but also the intellectual honesty of their colleagues. Had Justice Rivera-Soto simply issued a reasoned dissent — even a vehement and personally offensive one — critical of appointing judges to vacancies on the high court when there was no lack of quorum, he would have been well within the bounds of judicial behavior. But his "abstaining opinions" go far beyond what is proper in two respects.


First, he issued a broadside accusing the chief justice and the majority of the Court of taking sides in the political impasse between the governor and the Senate over the nomination of Anne Patterson to replace Justice John Wallace Jr. by appointing Judge Stern, the senior appellate judge, to fill the vacancy temporarily. Second, he attacked the legitimacy of his own institution, refusing to abide by the decision of the majority with which he disagreed and announcing a sit-down strike, refusing to act while Judge Stern sits.


When one strips away the veneer of legal argument about the Temporary Assignment Clause, it is clear that Justice Rivera-Soto's main argument is that by easing the Court's workload, assuring a tie-breaking vote and adding a seventh member, the chief justice's action emboldened the Senate Democrats to continue their refusal to consider the Patterson nomination. Justice Rivera-Soto is wrong. The Senate does not have a duty, as he implies, to accede to the governor's nomination or even to consider it. Its duty to advise and consent includes the power to exercise independent political judgment, albeit negative, as to the Court's future composition. There is no obligation to fill vacancies until the two political branches reach agreement. 


In the meantime, the Court's business must be carried on. The chief justice's power to empanel a full court and to keep it functioning strengthens the Court's autonomy in the face of the impasse between the other branches. "The appointing power of the Executive and the Legislature's role in passing on nominations is not the business of this Court, although our 'abstaining' colleague has made it his business," Justice Barry Albin wrote in his Johnson concurrence. "It is our 'abstaining' colleague who has needlessly politicized an independent, nonpartisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary."


Most importantly, Justice Rivera-Soto is wrong because he has defied the fundamental principle that a majority decision of the Court is binding unless and until reversed by another majority. The Temporary Assignment Clause has been interpreted by a majority of the Court in accord with the practice under five previous chief justices and now decided by a majority of the Court, and that interpretation is the law until changed by the regular process of the law. It is Justice Rivera-Soto's duty to respect the decision of the majority, however much he may disagree, and to abide by that decision. He announced inJohnson that he would continue to participate in argument and issue opinions, but would not vote. 


His refusal to perform the duties of his office — while still drawing his salary — is a direct attack on the legitimacy of the institution on which he sits. His verbal attack denouncing the "tyrannical majority," for insisting he follow the rule of law and do his duty as a justice by fully participating, calling opinions critical of him "prattle," further belittles his position and makes it appear as if he is waving his newly unveiled "strict constructionist," confrontational persona as if it were an updated résumé for reappointment, if not a blatant appeal to a wider audience where such strident absolutism is immensely popular.


There have already been calls for Justice Rivera-Soto's resignation, and even for his impeachment, for refusing to do his appointed duty and vote on cases. This is not the first time Justice Rivera-Soto has brought the Court into disrepute, having been reprimanded for his use of his position in advancing his son's cause in a dispute at a public school, and having violated an order sealing evidence in a criminal appeal. He has now further damaged an institution already anxious over the prospect of future partisan intrusion.


We believe that his presence on the Court, which he has so disrespected by his refusal to vote and abide by the majority, will inevitably distract from the Court's business if he continues his course of conduct. There is room on every court for contrary opinions, and Justice Rivera-Soto, aside from the majority decisions he has written, has served an important role in writing many dissents and challenging the majority in the course of substantive legal discussion. But however important his role has been, if he cannot reconcile himself to respect the majority's decision and perform his duties as a justice, he should resign.

The Politicization of New Jersey’s Court - NYTimes.com

The Times urges Gov. Christie to renominate Justice John Wallace:

"When Gov. Chris Christie of New Jersey chose not to renominate Justice John Wallace Jr. to the State Supreme Court in May, it was a case of political overreach. The situation is now a national disgrace, thanks to the governor, the State Senate president, Stephen Sweeney, and Justice Roberto Rivera-Soto...

The Politicization of New Jersey’s Court - NYTimes.com

Seeking a path to restore order in the N.J. Supreme Court | NJ.com

Prof. Ed Hartnett
proposes rescue of Justice Rivera Soto

Justice Roberto Rivera Soto heavily relied on Seton Hall Prof. Edward Hartnett to justify his refusal to vote on cases being decided by the New Jersey Supreme Court.   In an Op-Ed piece in the Star Ledger  Hartnett offers Governor Christie a way to by-pass the State Senate, eliminating the vacancy which produced the temporary assignment to which Rivera Soto objects: a recess appointment by Gov. Chris Christie.

Seeking a path to restore order in the N.J. Supreme Court | NJ.com

My comments:


Associate Justice Rivera Soto believes that with a temporarily assigned judge voting  the New Jersey Supreme Court is illegitimate as constituted.  He refuses to participate in its judgments  so long as the court sits with such a temporary justice (except if needed for a quorum).   Prof. Hartnett seeks to excuse  Rivera Soto's boycott of court votes by saying that U.S. Supreme Court judges Brennan and Marshall consistently refused to join in their court's rulings on certain categories of issues on which they disagreed with the majority.   But they were dissenters not abstainers. And he suggests a Governor's recess appointment of stalled nominee Anne Patterson.  That would vindicate Rivera Soto - who would then return to voting on cases because the temporarily assigned judge would no longer be sitting.


It would set a terrible precedent if such a guerrilla tactic as Rivera Soto's were rewarded with success.


It is the duty of a judge to decide.  The parties and the people are owed the duty of adjudication.


Abstention by a judge is rarely appropriate but sometimes necessary.  It is employed principally when a personal conflict may prevent the judge from upholding her duty of competent and impartial judgment: as when she has an interest in the outcome, or her physical limitations threaten her ability to render fair and competent judgment.


Justice Rivera Soto cited the example of Justice Harry Blackmun to justify his refusal to judge the cases  before him.  But in his passion Justice Rivera Soto failed to determine the facts.  In 1976 Justice Harry Blackmun voted to allow executions to resume - in the belief that it could be fairly and consistently employed.  18 years later he had despaired of that.  In Callins v. Callins he declared "From this day forward I shall no longer tinker with the machinery of death."

But from that day forward Justice Blackmun did not abstain.  He participated in every case - of every kind - before the court.  And in death cases he dissented.  He dissented even from denials of certification, in what came to be known as `Callins dissents', which recited the conclusion  he had reached after twenty years of trying to fairly enforce the death penalty: that it is an impossible task and that the punishment is administered so arbitrarily that it is unconstitutional.


It would behoove Justice Rivera Soto to embrace Justice Blackmun's example.  He owes a duty to conscience to dissent on issues of principle relevant to the cases before him; and to abide by the judgment of the court thereafter.  The Court on which he sits or the judgment of the people may someday vindicate his view that the Chief Justice's interpretation of the New Jersey Constitution is wrong.   But the remedy announced by Justice Soto "abstention" is, to use his phrase, ultra vires - outside of law and precedent.  Justice Rivera Soto should without delay resume exercise of the full duties of a judge of the Supreme Court.
- GWC   12/15/10

Step Discipline: Is NJ Justice's "abstention" basis for removal or discipline?

NJ Senate Pres. Sweeney and Justice Rivera Soto

The New Jersey Supreme Court has been thrust into crisis by the rebellion of its most conservative Justice Roberto Rivera-Soto who now calls the Chief Justice a "tyrant" who violated the state constitution.   (Opinions here and here.) 


A vacancy was created by the expiration in the spring of the 7 year term of Associate Justice John Wallace a well-regarded veteran African American jurist.  


Gov. Christopher Christie (R-NJ), citing his desire to reverse the court's liberal thrust, refused to support tenure for Wallace who was 22 months short of mandatory retirement age 70.   He nominated a corporate lawyer Anne Patterson for the seat.  Stephen Sweeney, the Democratic state Senate President declared that no action would be taken on the nomination until the day that Justice Wallace would have been compelled to retire.  


Citing strains on the court's workload Chief Justice Stewart Rabner temporarily assigned the senior judge of the Appellate to fill the vacancy.  Rabner relied on the state constitution which permits such temporary assignments "when necessary".  


Rivera Soto said that only inability to muster a quorum of five made a temporary assignment "necessary".  He declared the court to be "unconstitutionally constituted" and its actions "ultra vires".  He would henceforth "abstain" from all future decisions until the temporary assignment is terminated.  The Chief Justice and three Associates denounced as defiance and dereliction of duty Rivera Soto's abstention on the first case after the majority had ratified the Chief Justice's assignment order.


Rivera Soto - whose term expires in 7 months - - has irretrievably damaged his chances of re-appointment.    He dismisses as "prattle..scarcely worthy of reasoned response" the Chief Justice's criticism of his boycott of voting as a member of the court.  He denounces as partisan the appointment of a judge on temporary assignment to give the court a full complement of judges.  He denounces the "tyranny of this particular majority", accusing the court of pursuing a "politically correct" agenda,  The Governor probably agrees with the last but it seems extremely unlikely that Christie - a former U.S. Attorney - would not share in the shock and outrage that many have expressed over Rivera Soto's vote boycott and harsh denunciations of his colleagues- and his superior.  And it is inconceivable that the Democratic majority in the state Senate would endorse a nomination.


As one who started out as a union-side labor lawyer I always think of step discipline.   Justice Rivera Soto was reprimanded by the court for misuse of the prestige of his office, flashing a business card showing his membership on the court to aid his son.  That violated Canon 2 (A and B).  [IMO Rivera Soto,  192 N.J. 109 (2007)]


If Justice Rivera Soto were a school custodian he would be suspended immediately for insubordination and abandonment of duty.  But as a judge he has the protection of NJSA § 2B:2A-10:

Suspension prior to hearing

   No hearing to remove a judge from office as provided for in this act shall be held until the cause for suspension, if the cause is a result of an independent civil, criminal or administrative action against the judge, is finally decided in a tribunal in which the judge had an opportunity to prepare his defense and was entitled to be represented by counsel.

Refusal to participate fully in the work of the court violates the oath of office, which certainly requires a judge to judge, and to accept majority rule, and, yes, precedent established by the court on which the judge sits.    Canon 2 A  issues are again presented:  

"A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

If Justice Rivera Soto defies the calls on him to resign (by the Senate president), even if the Legislature moves to impeach him, the inevitable next step is  for the Chief Justice  to refer the matter to the Advisory Committee on Judicial Conduct where the justice's continued defiance will doubtless be rebuked.  His only chance, it would seem, is the sort of apology and retraction that seems highly unlikely now.


- George Conk

New Jersey Supreme Court: Canons of Judicial Conduct
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify as a character witness.

NJ Supreme Court Halts Effort to Recall Senator Menendez

Sen. Robert Menendez (D-NJ)

Tea party activists targeted for recall under state law  U.S. Senator Robert Menendez (D-NJ) - who in 2010 chaired the Democratic Senate Campaign Committee.  The New Jersey Supreme Court, 4-2, stopped the effort, saying that it could not permit the waste of resources on a state law-based recall effort that is forbidden under the federal Constitution. 


Two Justices dissented decrying the decision as disenfranchisement of the voters.  But no voter in U.s. history has ever cast a ballot to recall a United States Senator.  The florid dissent by Justice Rivera Soto, joined by Justice Helen Hoens could well have garnered a third vote but for the vacancy created by the expiration of the seven year term of John Wallace.  The Democratic leadership in the state Senate has refused to schedule hearings on his successor until Wallace's 70th birthday - when his retirement would have been compelled by state law.   That is a protest against Gov. Chris Christie's openly ideological refusal to nominate for tenure the centrist jurist. 


The dissenters could well garner a fourth vote when Governor Christopher Christie has another vacancy to fill.  He has vowed to remake the New Jersey judiciary which he considers too liberal - citing its broad zoning mandate to permit low and moderate income housing, and three-decade campaign balanced funding of urban and suburban schools.


The decision is HERE .

NJ: Eye-witness ID Special Master Urges Stricter Scrutiny of Testimony

 Image: Geoffrey Gaulkin
Last year the New Jersey Supreme Court, in State v. Henderson, remanded the eye-witness identification case "for a hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence."  


In State v. Madison 109 NJ 223 (1988) the court had held 

• [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a “very substantial likelihood of irreparable misidentification.”

The test was an open door for flimsy testimony.  The New Jersey Supreme Court was in the vanguard of courts who paid heightened attention to the need to assure that scientific expert testimony was based on "sound methods", but as Michael Risinger showed, the post-Daubert stiffening of judicial attitudes to scientific evidence stopped at the prosecutor's door.  


The test’s high barrier (proof of undue suggestiveness by police) left the door open wide for unreliable testimony testimony.  In recent years the problem has been highlighted by The Innocence Project.  Their data shows that as of May 13, 2010, 254 wrongfully convicted persons had been exculpated by DNA evidence; 75% of those convictions involved erroneous eyewitness identifications. [ See Innocence Project, Facts on Post-Conviction DNA  Exonerations, www.innocenceproject.org/Content/Facts_on_
PostConviction_DNA_Exonerations.php]


Persistence by New Jersey's Public Defender and its allies has paid off.  The Supreme Court appointed retired Appellate Division judge Geoffrey Gaulkin as special master.   He conducted a seminar, in which the Public Defender, aided by the Innocence Project and the Association of Criminal Defense Lawyers, and Prof. Risinger as amicus,  presented social science evidence about the weaknesses of eyewitness identification evidence.


Gaulkin's report to the Supreme Court systematically reviews the scientific evidence, rejects the prosecutor's stand-pat approach, and urges the high court to adopt a key remedy - - shifting the burden to the party offering the evidence:

First, it would be both appropriate and useful for the courts to handle eyewitness identifications in the same manner they handle physical trace evidence and scientific evidence, by placing at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting.

Civil and criminal standards are brought into parity by Gaulkin's approach because the focus is on reliability - without the barrier of showing impermissible suggestiveness.  We now await the New Jersey Supreme Court's response.


The Gaulkin report is HERE.

N.J. Supreme Court: Should we adopt Massachusetts RPC 1.6 (b): lawyer may reveal confidences “to prevent wrongful execution or incarceration”?

The New Jersey Supreme Court’s Professional Responsibility Rules Committee has informed members of the bar that the Supreme Court has asked the Committee:

Should an attorney be required to maintain the confidentiality of information relating the representation of a client where the information demonstrates that an innocent person has been wrongly convicted of a crime with significant penal consequences?

New Jersey RPC 1.6 (b) Confidentiality of Information currently provides

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm

The Court has directed the Committee’s attention to Mass Jud. Ct. R. 3:07, which provides, in Massachusetts RPC 1.6 (b)(1)

A lawyer may “reveal . . . [confidential information relating to the representation of a client] . . . to prevent the wrongful execution or incarceration of another.”

The Committee has invited the state’s bar associations to comment on the suggestion by August 13, 2010.