Alabama lawmakers to consider state takeover of indigent defense in courts
By Katherine Sayre, Mobile Press-Register
April 28, 2011
MOBILE, Alabama -- In providing legal representation for the poor, Alabama’s courts would be managed by a new statewide indigent defense director with the power to dictate how local lawyers are chosen and paid, under a bill filed in the Legislature this week.
Gov. Robert Bentley’s administration has sought changes in the indigent defense system in an effort to cut costs. A spokeswoman for the governor said today that it wasn’t clear exactly how much the proposed bill would save.
As a constitutional right, criminal defendants deemed unable to pay for lawyers are appointed representation. Last year, the state spent $63.8 million on indigent defense, including $3.6 million in Mobile County and $1.2 million in Baldwin County.
The bill introduced Tuesday calls for an Office of Indigent Defense Services — which would be part of the state Department of Finance — with a director who would decide how each circuit court handles indigent cases. Now, such decisions are made locally by the courts.
The bill points to two preferred methods: contracting with lawyers on a set salary or creating a public defender’s office with salaried lawyers.
But there could be exceptions, including Mobile County, according to state Sen. Cam Ward, R-Alabaster, who heads the Senate Judiciary Committee and introduced the bill.
“Mobile has a very good system in place,” Ward said. “I think they’ll be able to keep the system as it is.”
Lawyers appointed on case-by-case basis
In Mobile County, the circuit court uses a system of appointing lawyers on a case-by-case basis. As indigent defendants appear in court, judges pick their lawyers, who get paid on an hourly rate.
Many local judges and lawyers have expressed concern about a possible state takeover, arguing that Mobile’s system is already cost-efficient and provides quality representation.
“That’s creating another bureaucracy at a time when the state’s finances are stretched as thin as they possibly ever have been,” said attorney Jason Darley, a member of the Mobile County Criminal Defense Lawyers Association.
Lawyers are currently allowed to charge the state $60 per in-court hour and $40 per out-of-court hour. In Mobile County, they can also charge $25 per hour for overhead, such as keeping an office.
Under Ward’s bill, all appointed lawyers would be paid flat rate of $75 per hour.
Ward said the indigent defense system as it stands now is “broken” from excessive costs.
“This is going to bring more uniformity to the process,” Ward said, adding that he expects to get a cost-savings estimate on his bill later in the week.
Under the bill:
- The indigent defense director would be chosen from three candidates nominated by the Alabama State Bar.
- A local advisory board would be created in each circuit to make recommendations to the director. The board could appeal any of the director’s decisions to a state review panel made up of two judges and a lawyer.
- The director would set a minimum experience level for appointed lawyers, create standards for declaring a defendant indigent, work with a staff of existing Finance Department employees, and maintain all spending records.
Rebekah Mason, Bentley’s spokeswoman, said the bill is one of several aimed at reducing state spending, and if it fails, “those savings would have to be found somewhere else.”
Ultimately, she said, the goal is to have all of the courts using one of the two preferred systems.
Baldwin County courts use a contract system, hiring 21 lawyers to represent nearly all indigent cases. Thirteen of the lawyers serve in circuit court, each getting $45,000 per year, no matter how many cases they’re assigned.
In Mobile County, five lawyers last year made more than $100,000 each in appointed work, accounting altogether for one-fifth of the county’s indigent defense costs.
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Op-ed by the Huntsville-Madison County Bar Association on the significance of Law Day
Huntsville Times
April 24, 2011
HUNTSVILLE, Alabama _ May 1 was chosen by President Dwight D. Eisenhower in 1958 to commemorate the significance of the rule of law in American citizenship. Since then, Law Day has become a venerated tradition in the American legal community.
Courts, firms, educational institutions and bar associations across the nation mark the occasion with events and programs based on a theme chosen annually by the American Bar Association.
This year's theme is titled "The Legacy of John Adams: from Boston to Guantanamo."
The Huntsville-Madison County Bar Association observes Law Day by celebrating the history of service that lawyers have provided to this community.
For example, our bar association sponsors the "Wills for Heroes" program that provides free estate-planning services to local first responders. To date, 144 attorneys have provided those services to 432 police officers, firefighters and emergency workers.
Similarly, local attorneys work with the Madison County Volunteer Lawyer Program to provide free legal services to low income residents. In 2010, 275 lawyers helped 260 clients who were otherwise unable to afford representation. This year the Bar Association began a program with Johnson High School's Law Academy with the goal to encourage more students to enter the legal profession. In addition, individual attorneys contribute numerous volunteer hours each year to non-profits, schools, churches and other worthy causes.
Lawyers have an ethical obligation to give back to the community, and attorneys in Madison County take that obligation seriously.
Madison County attorneys also use Law Day as an opportunity to benefit local students. Attorneys will visit local high schools to discuss the legacy of John Adams and the importance of the legal profession.
Adams was called to defend the perpetrators of the infamous Boston Massacre. His performance in the Boston Massacre trial was a model of criminal defense and an example of proper adherence to the rule of law in the face of challenging circumstances.
Despite his clients' undeniable culpability, John Adams fought rigidly for the fair application of constitutional due process, setting a precedent for the rule of law and the rights of the accused. For these reasons and more, John Adams is revered as an exemplary attorney and servant of the law.
Law Day reinforces the legacy of John Adams, celebrates the rights and privileges enjoyed by every American and increases awareness of the rule of law.
John Adams described the United States as a "government of laws, not men," perfectly encapsulating the ideology of Law Day.
Law Day 2011 will be remembered as a tribute to Adams and his gift for upholding the law with unfailing fidelity. May we all be as passionate and resilient in doing the same.
Robert C. Lockwood is president of the Huntsville-Madison County Bar Association.
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County celebrates Law Day next week
Shelby County Reporter
April 26, 2011
Dear Editor,
On May 1, 2011, communities across the country will join together to celebrate the 54th observance of Law Day. Law Day, commemorating the significance of the rule of law in American citizenship, traces its roots back to May 1, 1958.
Intended by its first designee, President Dwight D. Eisenhower, to serve as a check on communism and its development during the Cold War, Law Day was purposefully observed on the same calendar day to coincide with “May Day,” a global homage to laborers and their historical struggle for fair and humane working conditions.
In his first Law Day proclamation, President Eisenhower emphasized law’s role “in the settlement of international disputes.”
Over 50 years later, Law Day preserves the democratic spirit of May Day by recognizing the rights and privileges enjoyed by every American citizen and boosting awareness of the rule of law.
Law Day has become a venerated tradition in the American legal community. Courts, firms, educational institutions and bar associations across the nation celebrate the occasion with events and programs designed in accord with a theme assigned by the American Bar Association annually. Nationally, this year’s Law Day theme is titled “The Legacy of John Adams: from Boston to Guantanamo.”
In the State of Alabama, Governor Robert Bentley has already taken the opportunity to proclaim May 1 as “Law Day in the State of Alabama.”
In fact, his proclamation was made on the same day he signed a historic education-funding bill into law.
The Alabama State Bar is contributing to the Law Day celebration by again sponsoring student competitions recognizing teachers and students in grades K-12, and by hosting the first official Law Day Observance in the chambers of the Alabama Supreme Court.
The Shelby County Bar traditionally makes a donation to a local charity in observance of Law Day and this year will be no different. In addition, one of our local state legislators will serve as guest speaker at the May bar meeting, and we anticipate some lively Law Day discussion that would make even John Adams proud!
John Adams famously described the United States as a “government of laws, not men,” perfectly encapsulating the ideology of Law Day. Law Day 2011 will be forever remembered as a tribute to Adams and his gift for upholding the law with unfailing fidelity. May we all be as passionate and resilient in doing the same!
Philip F. Hutcheson, President
Shelby County Bar
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Alabama Voices: Defense system can be salvaged – [Op-ed]
By Blanchard L. McLeod Jr., The Montgomery Advertiser
April 19, 2011
As an attorney who handles indigent cases, I read with interest your recent editorial that endorsed Gov. Bentley's desire to see the package bill in the Legislature passed that would make it mandatory that the entire state indigent attorney system go to a contract attorney system or to a public defender's office.
This is not new legislation. Similar bills were introduced in the legislature in both 2009 and 2010.
Yes, there are some areas of the state that already have contract attorneys and some areas that have public defender's offices. And, to some degree, these seem to be working. Yet, there are also some horror tales of some of the representation that indigents are given under these systems.
I cannot comprehend how a one-size-fits-all system of indigent defense can work. And as grounds therefore, I would ask that one consider:
- An attorney has completed at least 20 years of formal education. On the whole, how many qualified attorneys do you think are going to take a job that pays $45,000 per year? Unless the attorney is operating out of his or her car, office overhead would consume that amount of income.
- I personally know of at least one attorney who told me that they quit as a contract attorney since the judge expected and almost demanded that they would be a "plea mill" of guilty pleas and not clog the judge's docket with cases to be tried.
- Two personal friends of mine tried a capital murder case recently. After two and one half years' incarceration, the client was found not guilty. These attorneys spent nights, weekends, etc., getting this case ready for trial. Do you really believe that a person who is going to get a guaranteed paycheck regardless of the outcome of a case is going to be working those nights and weekends?
Having handled more than 15 capital murder cases and never losing one to the death penalty, do you really think that I achieved that record not working many a night and many a weekend? Do you really think that an attorney would put in those hours for a flat pay rate regardless of the outcome of the case?
A public defender's system will soon collapse since one that is not adequately funded would be subject to all kinds of constitutional challenges. Do you think that the Legislature will adequately fund public defender's offices?
Do you think the Legislature would be willing to fund a public defender's office at even one half the level of a district attorney's office? The district attorney has all of the resources of the law enforcement investigators, state forensic services, the attorney general's office, etc.
The state of Missouri went to a mandatory public defender's office system. The system collapsed on itself and the entire state system had to go back to our current system. New Orleans tried a similar system. The system literally collapsed on itself and at one time the judges had to order the release of over 200 individuals who could not receive a trial in a reasonable amount of time.
Have you ever tried dealing with any state agency where the employees were guaranteed an income regardless of the quality or time they spent on providing services? Were you happy with that system?
You might be talking about another trip to the courthouse to get a tag for your vehicle. In a criminal system, you would be talking about whether you were released because you were not guilty or whether you served time incarcerated. That's a heck of a difference, wouldn't you say, between an extra trip to the courthouse and spending time behind bars and having a criminal record?
Sure, there would be some excellent people working in that tag office. Yet, there in all probability are some chronic malingerers just drawing a paycheck.
Our current system can work if the bad attorneys are weeded out, fee bills are scrutinized more highly than they are now, there are local oversight committees, mandatory dockets to ensure the repayment of court fees and costs, etc. But all of this would require our local judges to take over control of the current system and make it work.
Our current system of indigent justice is by no means perfect. But it sure is better than what is being proposed, which will cut costs and cause many an individual to be denied justice because of those cost-cutting measures.
Blanchard L. McLeod Jr. practices law in Selma.
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Birmingham City Council members eye poor's private-lawyer fees
By Joseph D. Bryant, The Birmingham News
April 25, 2011
Several Birmingham City Council members are questioning why the city spends hundreds of thousands of dollars for private lawyers in municipal court while also paying another group that claims to be able to handle the entire caseload.
Members of the Public Safety Committee plan to meet this week with Mayor William Bell and Presiding Judge Andra Sparks about the costs and practice of hiring the private lawyers.
Committee chairman Johnathan Austin sent letters requesting the meeting at the urging of Councilwoman Carole Smitherman.
Smitherman questioned both the rising cost of legal fees for indigent defense and the authority of judges to hire outside lawyers to represent poor defendants, even though the Legal Aid Society is the long-term contract public defender.
The city pays for indigent defense from the Alabama Fair Trial Tax Fund, money collected from local fines. Annual collections for that fund were $552,802 in 2009 and $512,961 in 2010. The court's spending exceeded revenue by $220,407 and $124,000 in those years, respectively, as the amount spent on outside lawyers ballooned, records show.
In 2009 and 2010 the city ran deficits in its legal defense fund and took money from the general fund to pay for lawyers.
Meanwhile, Legal Aid, the nonprofit agency used by the city since the 1950s, maintained it was able to handle most of the cases that instead go to higher-priced lawyers. The city's annual contract with Legal Aid is $490,000, a bill that is often paid months late, agency officials said.
"We're questioning things like why would we hire a lawyer for indigent defense when we already have a contract with Legal Aid," said Austin, the committee chairman. "Right now it's not an alarm raising concern, but it does raise some issues."
While Austin was moderate in his reaction, other council members offered a more critical assessment. Councilwoman Valerie Abbott said it was illogical for the city to spend so much on outside lawyers, draining the indigent defense fund, and then coming up empty when it is time to pay Legal Aid.
"It tells me we need to put the municipal court on our radar screen and find out what's going on over there because it's just one of those entities that you just assume is being operated properly," she said. "It sounds like the good ol' boy system in place over there, and that's not good."
Under the current procedure, municipal judges assign cases to lawyers when defendants are unable to afford representation. The city normally contracts with Legal Aid and hires outside lawyers when there are conflicts.
Bell said he would participate in the meeting and said reforms are ongoing at the court. Bell said he inherited the problems.
"If you look at the time frame on bringing in outside attorneys, it preceded January 2010, even though there was some carryover," Bell said. "I've given Judge Sparks some directions to reorganize the court to deal with some outstanding issues that we found to be lacking. As we develop those plans we'll be more than happy to share with the council."
Sparks has said there are legitimate reasons for the increased use of outside lawyers, including more activity at the court as a result of more aggressive police activity.
"When I see a lawyer who has a bill that's exorbitant, I make them justify that," he said in a recent interview. "I've been carefully reviewing them and not just signing off on them. Nobody's getting rich practicing at municipal court." Still, Sparks said his list of upcoming reforms include creating an official list of outside lawyers and mandatory orientation for anyone wanting to be included.
"We're going to have tighter controls," he said.
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Alabama chief justice will authorize closure of court offices one day per week due to budget cuts
By Bob Lowry, The Huntsville Times
April 12, 2011
MONTGOMERY, Alabama -- Alabama Chief Justice Sue Bell Cobb announced today she is authorizing court offices across the state to close one day a week because of budget shortfalls.
In addition, Cobb told reporters at a Statehouse press conference that jury weeks for civil trials will be cut in half and jury weeks for criminal trials will be cut by one-fourth.
Cobb said her order would give presiding circuit judges the authority to close such offices as judges offices, clerks offices and juvenile probation offices.
Even though the offices would be closed, she said employees would still report to work to catch up on paperwork.
In addition, Cobb said jurors will be asked to forgo their juror pay and mileage.
The state's court system laid off 120 people last year and plans another 150 layoffs on May 1. Cobb said if the General Fund budget proposed by the Legislature and endorsed by Gov. Robert Bentley is enacted, the court system will be forced to lay off another 300 people on Oct. 1
Earlier today, Cobb endorsed legislation that would raise Alabama's tax on cigarettes from $42.5 cents per pack to $1.42.5 cents. About $9 million of the $206 million raised by such a tax would go to the court system.
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Child custody bill before the Alabama Legislature needs makeover – [Editorial]
By The Huntsville Times
April 8, 2011
HUNTSVILLE, Alabama - It's hard to imagine a winner in a child custody battle except in extreme cases involving an unfit parent or guardian.
It's even more difficult to fathom a legislative remedy that largely dictates who that child ends up with and how decisions about his or her care are made.
That's what's at play with a bill pending in the Alabama Legislature. The proposed Alabama Children's Family Act - Senate Bill 196 and House Bill 316 - would overhaul child custody laws and require judges to order equal parenting time unless one of the parents is deemed to be unfit.
The bill stems from an outgrowth of protests by non-custodial parents - frequently fathers - over what they view as flaws in a judge-focused method of awarding custody.
There's no doubt the system needs reforming.
This is not the best solution.
The bill would require divorcing parents to create a parenting plan designating when the child would be with each of them. If the parents could not agree, the judge in the case would order joint custody with equal time, regardless of where each lives.
The measure would also allow material gifts to count toward child support, and establish a rotating odd-even-number-year system of primary parental authority over a child's decisions such as athletics, academics, religion and medical care if the parents were in disagreement.
The Senate bill was authored by state Sen. Paul Bussman, R-Cullman, and co-sponsored by 20 senators, including all five from Madison County.
The Senate Children, Youth Affairs and Human Resources Committee - chaired by Bussman - held a public hearing on the bill Wednesday and could vote on the measure next week.
State Reps. Mac McCutcheon, R-Monrovia; Mike Ball, R-Madison; and Phil Williams, R-Huntsville, are among the 27 co-sponsors of the House bill.
Critics of the proposal say it acts more in the interest of the parents than the child.
Has the current court-led method been effective? Not entirely. Scores of otherwise decent parents have been shortchanged in custody disputes, perhaps because of a persuasive opposing lawyer or a judge swayed by false or emotion-charged accusations.
Divorces and separations are often acrimonious battles that become more of a test of one-upmanship rather than considering what's in the best interest of the child.
The Alabama Family Rights Association is lobbying heavily for the bill. The Family Law section of the Alabama State Bar wants to make it a more workable bill.
Opponents say judges need to retain discretion to consider special circumstances, such as parent work schedules and how constantly switching schools in custody rotations could harm the child.
The bill would raise the burden of proof to establish a parent is unfit. The court deciding custody would now have to provide "clear and convincing evidence" that a parent is unfit.
Traditionally in domestic law cases, the burden of proof is less rigorous, meaning a parent with poor judgment and other undesirable traits could still win custody as long as they are not deemed "unfit" under other standards like abusive behavior.
The odd-even year rotation sounds reasonable on the surface. But would this really be in the best interest of the child? A lot is at stake in a state where 29 percent of families with minor children were headed by a single parent compared to a national average of 27 percent, and where Alabama now has the 4th highest divorce rate in the country, and 1,700 new divorce cases are filed yearly in Madison County alone.
Changes that would strengthen a requirement for joint custody to be the norm seems a noble goal. But the trial court should retain final discretion, based on written findings of fact, to act in the best interest of the child in certain circumstances.
Just because parents are divorcing or unwed doesn't automatically make either parent unfit. Likewise, just because a parent is not court-declared "unfit" does not necessarily make that parent the best choice for custody.
Some how, some way, the parties need to write reforms that are fair to parents, and more importantly, fair to the children.
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State’s Judges Told to Shut Courtrooms Earlier to Cut Costs
By JOHN ELIGON, The New York Times
April 6, 2011
Judges across New York State were told on Wednesday to shut down their courtrooms a half-hour earlier every day in an effort to cut back on overtime paid to staff members like court clerks and court officers.
The request came in a two-page memorandum from Ann Pfau, the state’s chief administrative judge, days after the state budget cut funds for the judiciary by $170 million.
“As we have discussed, our difficult fiscal situation requires that we reduce spending, including a significant reduction” in court staff, Judge Pfau wrote. “The ultimate number of layoffs, however, can be mitigated if we make every effort to eliminate nonessential spending.”
Other than arraignment courtrooms that work into the night, Judge Pfau wrote, all court proceedings “generally should end no later than 4:30 p.m.” rather than the current 5 p.m. The change applies to both state and local courts.
The memorandum also calls for the end to a longstanding practice of having juries deliberate through the lunch hour, because that too requires staff members to work, and collect overtime.
There will be times when court proceedings will run past 4:30. During a trial, for instance, if a witness is expected to have about 20 or 30 minutes of testimony left at 4:30, and that witness has a scheduling conflict the next day, a judge may be inclined to allow the proceeding to go on.
But to do that, a judge must now receive approval from that court’s administrative judge.
Justice Michael J. Obus, the chief administrative judge for the criminal division of State Supreme Court in Manhattan, said he would consider requests case by case. “Judges have already been told they should avoid this if humanly possible,” he said.
Judges generally saw the new policy as an imposition, though a necessary one.
“Judges are self-motivated and want to get things done,” Justice Obus said. “Anything that interferes with getting things done is not welcome.”
Justice Obus, who as an administrator was already aware of the impending change, already had to grant one extension — to himself. During deliberations in the trial of Leigh Morse, an art dealer convicted of fraud, a juror, as she was leaving the courtroom at 4:30 one day last month, said she would not come back the next day, Justice Obus said. That required him to question the juror, which caused the court staff to have to stay until after 5 p.m.
Given the rising caseloads, the new closing time “makes no sense,” said Rocco DeSantis, the president of the New York State Court Clerks Association. It will be difficult for clerks to process the large amount of paperwork required of them in a shorter time period he said.
“Our clerks are under tremendous pressure to make sure the work is done,” Mr. DeSantis said. “The public is going to be the one that suffers the most.”
Dennis W. Quirk, the president of the New York State Court Officers Association, said it would be difficult for his officers to tell people who had been waiting all day for their cases to be called to return the following day because of the rigid closing time.
“We’re going to have a lot of angry people,” he said.
One clerk who has worked in State Supreme Court in Manhattan for two years noted at least one advantage to the new rule. “It’s great to actually get home before the sun goes down,” he said.
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Steve Ford, son of late President Ford, recounts sobering tales at Drug Education Council luncheon
By Rhoda A. Pickett, Mobile Press-Register
April 5, 2011
MOBILE, Ala. -- Steve Ford, a son of former President Gerald Ford, visited Mobile on Monday, sharing a few laughs about his days in the White House, but he included some sobering tales about the alcohol and drug abuse that affected his family.
Ford, an actor and motivational speaker, gave the keynote speech to an audience of more than 800 at the Drug Education Council’s 15th annual anniversary luncheon at the Arthur R. Outlaw Mobile Convention Center in downtown Mobile.
The audience sat motionless as Ford talked about the family’s unexpected move to the White House. Photos flashed behind him across a large screen on the stage.
“It was a constitutional crisis,” Ford said of his father’s rise to the presidency following the Watergate scandal and President Richard Nixon’s resignation in 1974. “A few minutes later, he would stand in the East Room and put his hand on the Bible (to take the oath), and he had not been elected by the American people.”
After the family left the White House, “everything looked great on the outside,” but the effects of his mother Betty Ford’s alcohol and drug abuse became more noticeable, although no one would talk about it.
“My dad stepped forward,” he said, adding that the family held an intervention. “That was a new word in the 70s. And now we’ve got a TV show named after it.”
Ford said his own struggle with binge drinking led to his decision to break off his planned marriage. He recalled standing in a hotel room shower “trying to wash the shame off of me.”
“I had been living a secret life on the road,” he said, recounting his traveling for television and film roles. “My addiction is sneaky. It is outside the door doing pushups, waiting on me.”
Ford ended his speech by recalling the story his late father told during a groundbreaking ceremony at the University of Michigan in Ann Arbor. The former president’s high school principal gathered $100 for a scholarship to send him to the university. The man did not live to see the elder Ford get elected to Congress or become president.
“Here I stand because one man invested $100 in my life,” the younger Ford recalled his father saying. “That’s what you all are doing here today. You all are investing in the lives of others, and that’s why this is so important.”
The Drug Education Council also recognized those who worked to help those addicted to drugs and alcohol.
- Mobile County District Court Judge Michael McMaken received the Joseph Treadwell Award for a deserving civic or business leader who promotes the message of prevention, treatment and recovery.
- Frances Houston Yance received the Watson Guy Award.
- Jeanne Marie Leslie received the Marian Cranford Award honoring an outstanding professional in the field of substance abuse treatment.
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Critics fault retired Justice O'Connor over ethics
By MAR
K SHERMAN, Associated Press
Apr 10, 2011
WASHINGTON – Retired Supreme Court Justice Sandra Day O'Connor continues to hear cases in U.S. appeals courts, while also playing a role in public policy issues. Her critics say she should do one or the other, but not both.
O'Connor, 81, was forced to apologize for 50,000 recorded telephone calls made to Nevada voters in which she supported a ballot measure to change the way state judges are selected. O'Connor said she did not authorize the calls featuring her recorded voice, much less their post-midnight delivery. But she also defended her involvement in the campaign that included her appearance in a television commercial.
In September, federal judges in Iowa stayed away from a conference on judicial elections at which O'Connor spoke in the midst of another campaign over ballot issues. The judges had received an informal opinion that their presence would violate the judiciary's ethics code.
Most recently, O'Connor hosted an after-hours reception at the court that was billed as a celebration of Bristol Bay in Alaska. But the featured speakers, other than O'Connor, were opponents of a proposed Alaskan copper and gold mine. They were in Washington to lobby lawmakers and regulators against the proposed Pebble Mine.
Arthur Hellman, an ethics expert at the University of Pittsburgh law school, said O'Connor should consider stopping her participation in court cases if she "wants to engage in this level of political or politically related activity."
Partisan-tinged questioning of conduct by high court justices has grown. Liberal interest groups have faulted Justices Antonin Scalia and Clarence Thomas for speaking at a private dinner hosted by Charles Koch, one of two energy-company-owning brothers who, liberal groups say, have too much sway on policymakers.
Some liberals have called on Thomas to sit out the expected high court fight over the health care law because of his wife's public criticism of the law. Some conservatives say Justice Elena Kagan should not take part in the health care case because of her work in the Obama administration before joining the court.
O'Connor has traveled the country since her retirement in 2006 to criticize costly election campaigns for state judges, promote enhanced civics education for schoolchildren and advocate for Alzheimer's research. Her husband, John, died in 2009 of complications from Alzheimer's disease.
Her primary focus has been on judicial independence, which she believes is harmed by electing judges.
At the same time, she has heard cases on appeal since her retirement. It is not uncommon for retired justices to sit with federal appeals courts from time to time. Justice David Souter, who left the court in 2009, has heard cases with the Boston-based court.
Through the end of March, O'Connor had written two appellate decisions and joined the majority in a half-dozen others this year. None of the cases involved judicial elections or the fate of the Alaska bay.
The continuing judicial work allows O'Connor, who earns $213,900, to receive salary increases that are tied to inflation. Judges who stop hearing cases receive a pension equal to their final annual salary as a full-time judge, but are excluded from subsequent cost-of-living increases.
Last week, O'Connor was the host of a Supreme Court reception "to celebrate the economic, cultural and ecological values of Alaska's Bristol Bay Watershed."
Opponents of the proposed huge mine near the bay fear it will devastate the world's largest wild sockeye salmon fishery. The Environmental Protection Agency recently said it would study potential effects from the mine. EPA Administrator Lisa Jackson attended and briefly spoke at the reception.
O'Connor declined to answer questions for this story. But the head of the Wild Salmon Center, lead sponsor of the event, said O'Connor's participation came about because of their friendship and her love of fly fishing.
Guido Rahr, the center's president, said his group hasn't taken a position on the mine and that the speakers were careful to "make sure we were respecting the location" of the reception at the court.
Rahr said participants mainly "ate yummy salmon treats" and looked at National Geographic photos of the bay.
But one speaker was a former Alaska state Senate president, Rick Halford, who told reporters the next day that the proposal was a "very, very dangerous kind of mine."
Supporters of the project made their own visit to Washington a couple of weeks earlier. They were not received at the high court.
Hellman, the Pittsburgh ethics expert, said he finds the court reception particularly troubling because "we're talking about political activity. It's a lobbying effort and she is lending her considerable prestige to that effort."
Another ethics professor, Stephen Gillers of New York University, said that if the speeches were not about advocacy, then the event itself probably does not pose an ethical problem for O'Connor. On the other hand, Gillers said it is possible O'Connor would have to step aside from any appellate case involving the groups that sponsored the reception.
The court hosts 50 to 60 after-hours events a year, many related to the court. Guidelines for use of the building forbid partisan political activity and fundraising, and require a justice to sponsor an event. A cash bar and dancing are not permitted.
Supreme Court justices are not covered by the ethics rules that apply to all federal judges. Still, justices generally adhere to those rules, Hellman said.
O'Connor's involvement in last year's ballot issues in Iowa and Nevada also drew a rare rebuke from another federal judge.
Senior Judge Laurence Silberman of the federal appeals court in Washington, D.C., said "the issue of whether state court judges should be chosen or ratified by election or solely by appointment is a political issue on which serving federal judges should not publicly advocate, one way or the other."
Silberman said that unlike the criticism of Scalia and Thomas, which he termed phony issues, O'Connor's advocacy "is a real ethical issue."
O'Connor took part in a conference in Des Moines, Iowa, in September on the topic of judicial elections. That appearance came during a contentious campaign about whether voters should retain three Iowa Supreme Court justices who were part of a unanimous court ruling in favor of gay marriage.
Federal judges in Iowa had been invited to attend by the Iowa State Bar Association, according to Chief Judge Robert Pratt of the Southern District of Iowa. But Pratt wondered whether their attendance would be improper.
Lacking the time for a formal opinion from the judiciary's ethics committee, the judge took advantage of a less formal process and called an ethics committee member for his views.
Pratt said the committee member, U.S. District Judge Richard Kopf, informally advised the judges to stay away.
They did, but O'Connor attended and said voters shouldn't punish judges when they disagree with their decisions. In the end, the three justices were ousted.
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Republican Pushes Alternatives to Legal Aid
By David Ingram, The Legal Times
April 5, 2011
The chairman of a House appropriations subcommittee said today that private-sector lawyers aren't doing enough to help the nation's poor with legal problems, warning that they might need to make up for expected cuts in federal funding.
U.S. Rep. Frank Wolf (R-Va.) is a longtime supporter of funding for civil legal aid, but he said the largest source of such money, the Legal Services Corp., still faces proposed cuts from the House’s new Republican majority. LSC and its local partners should turn to resources from large law firms, state bar dues and law schools, he said.
Speaking during a budget hearing, Wolf singled out for criticism the lawyers who represent Guantánamo Bay detainees such as accused 9/11 conspirator Khalid Sheikh Mohammed.
“That’s the pro bono work? The pro bono work should be helping poor people here in the United States,” said Wolf, the chairman of the House appropriations subcommittee on commerce, justice, science and related agencies. “Some of these people who represent Khalid Sheikh Mohammed ought to consider going into the inner city.”
The Legal Services Corp. is facing a potential budget cut of $70 million for the current fiscal year, and Wolf’s subcommittee is considering what its budget should be for the 2012 fiscal year, which begins Oct. 1.
In a response to Wolf, who raised the subject of new funding ideas in January, the Legal Services Corp.’s board of directors is organizing a task force on increasing pro bono work. Harvard Law School Dean Martha Minow and Davis Wright Tremaine partner Harry Korrell III are the task force’s co-chairs.
LSC President James Sandman, pictured above, said during today’s hearing that many ideas for supplementing the agency’s work are being tried — for example, many law schools encourage pro bono work. As for involving more lawyers from major law firms, Sandman, a former Arnold & Porter managing partner, said they represent only 15% of lawyers.
There are other challenges, too, said Hunton & Williams partner Robert Grey Jr., a member of the Legal Services Corp. board who testified with Sandman. For example, Grey said, many of the people served by civil legal aid programs live in rural areas, where there are relatively few lawyers to take pro bono work.
Private-bar lawyers handle about 12% of cases for LSC-funded programs, Grey said.
Separately, Wolf said the Legal Services Corp. risks losing support in Congress if the agency’s work is seen as political. He criticized a recent “Know Your Rights” booklet produced by Legal Aid of North Carolina for farm workers because it contained a cartoon of President George W. Bush digging a grave for the workers’ wages. “You’ve gotta get rid of this political stuff,” Wolf said.
Sandman and Grey said political statements by grantees would be inappropriate. “What we want to try to do is focus people on what they do best, which is represent the poor,” said Grey, pictured above.
George Hausen Jr., executive director of Legal Aid of North Carolina, said in a telephone interview that he heard about the cartoon from an LSC official after today’s hearing. The booklet was used a year ago to educate farm-workers about their rights, and including the cartoon was a mistake, Hausen said. He said he didn’t know where the cartoon came from.
“We have some enthusiastic and zealous people who work in our program, and I don’t know that they thought through this entirely,” Hausen said. The purpose of the booklet, he added, was not to demean Bush, and the cartoon related to changes Bush proposed to the H-2A visa program.
