Alabama court system near bottom of list nationally
By Cosby Woodruff, Montgomery Advertiser
March 28, 2010
The survey resulted in the usual conclusions and it drew the usual responses from the same groups that either agree or disagree with such surveys.
This one, conducted by the U.S. Chamber of Commerce, didn't have much good to say about the civil court system in Alabama. Groups that want to limit the ability of plaintiffs to collect what they call excessive jury awards say it proves their point.
Others, such as the trial attorneys who seek these awards, predictably called it propaganda for those who want to curtail damage awards.
Then the sides, almost as if by instinct, turned on each other. That makes some sense. After all, that is their job.
However, it doesn't answer the basic problem of whether Alabama courts are broken to the point that one side or the other simply can't get a fair trial.
Both sides seemed to agree, and getting the two sides in this issue to agree on anything is something of a milestone, that Alabama courts have tilted away from the mega-verdicts that gave the state its reputation more than a decade ago.
And to show that lightning can strike twice, they even agreed on the main reason.
Jere Beasley, of the Beasley Allen Law Firm, and Skip Tucker, head of Alabama Voters Against Lawsuit Abuse, almost immediately suggested the Alabama Supreme Court has moved sharply to the right over the past decade.
In effect, the state's top court is more likely to reject a large jury verdict than it was some years ago.
For Tucker, it is a good thing, but not enough of a good thing. For Beasley, it is a bad thing.
Both men made good points about the credibility and importance of the survey.
Beasley pointed out, and correctly so, that the group that set up this survey was directly on one side of this issue and wanted to present a specific perspective from that side. The survey was conducted by the business group and focused on business attorneys.
Tucker's point was that it doesn't matter why the survey ended up as it did -- the importance of Alabama finishing No. 47 in such a survey can't be a good thing.
Attorneys responding to the survey may well have been responding to decade-old impressions, but if those impressions remain, that is pretty much all that matters.
That matters because corporate lawyers do have influence when a company is deciding where to build, expand or whatever. If those attorneys are frightened out of their wits to defend a case in a particular state, they will make that clear to the decision makers.
If Alabama is getting bashed in such a situation that could be costly.
The state's track record on attracting new businesses during the past decade is pretty solid. That is evidence, and strong evidence, that corporate attorneys are not arguing against the state when decision time arrives.
That brings us back the main point in the whole survey. What, if anything, does it really mean?
In the end, it appears the survey was exactly what it appears to be. It is a collection of opinions from business lawyers, many of whom don't practice in this state. They have a negative opinion, and that opinion could one day matter.
That raises another issue. What, if anything, can the state do to change that image?
That is a big enough problem in itself.
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W.Va. election legislation could attract several lawsuits
The Associated Press
March 29, 2010
CHARLESTON (AP) - West Virginia officials may wind up in court over a pair of measures passed this legislative session that would change how elections are conducted.
Gov. Joe Manchin has already signed one of the bills, which offers public funding to state Supreme Court candidates in 2012. The other bill, still awaiting his review, revisits efforts to regulate third-party election advertising.
The latter measure will likely rekindle a legal fight over such rules. The Center for Competitive Politics, meanwhile, may sue over the public financing pilot program, group spokesman Jeff Patch said.
''We oppose taxpayer financing as a matter of policy,'' Patch said, adding that the center had made no final decision regarding legal action.
With two court seats up in 2012, the pilot program would provide candidates who qualify with initial amounts of $200,000 for a contested primary and $350,000 for a contested general election.
Among other concerns, Patch cited the program's provision that would provide additional ''rescue'' funds to participating candidates. Spending more than 20 percent of those initial amounts by third parties or nonparticipating candidates would trigger the release of up to $400,000 for a primary and $700,000 for a general election.
The legislation cites the state's increasingly expensive Supreme Court contests, and the accompanying criticism that the amounts and sources of campaign cash undermine public confidence in the judiciary. The nonpartisan center opposes campaign finance limits, and believes the provision violates the free speech rights of nonparticipants.
''Money does not get out of politics. It just goes in different directions,'' Patch said. ''We just think this is a waste of time and resources.''
The group is already helping an unsuccessful 2009 candidate for Wisconsin's Supreme Court sue over that state's public financing program. Among other grounds, the pending federal lawsuit argues that a June 2008 U.S. Supreme Court ruling voids Wisconsin's rescue funds provision.
That ruling struck down the ''millionaire's amendment'' from federal campaign finance rules. The amendment had allowed candidates to receive larger campaign contributions when their wealthy opponents spent heavily out of their own pockets.
But Manchin officials and other supporters of West Virginia's new law don't believe that decision would apply. It had hinged on the notion that there's no potential corruption when candidates finance their own campaigns, said Charles Hall, a spokesman for the nonpartisan group Justice at Stake.
''They're trying to take a limited set of circumstances, and stretch it into a broad principle that overturns more than 30 years of federal court rulings,'' Hall said. ''They are a long way from the finish line.''
Hall's group helped champion the West Virginia public financing bill and supports efforts aimed at reducing the influence of special interests over the courts. He cited how the pilot program is modeled on North Carolina's judicial public financing law, which was unanimously upheld by the federal appeals court that hears cases both from that state and West Virginia.
That decision, from the 4th U.S. Circuit Court of Appeals, came out before the U.S. Supreme Court axed the millionaire's amendment. Hall noted that the latter court has since refused to hear the appeal in the North Carolina case, even after lawyers challenging public financing invoked the millionaire's amendment ruling.
Wisconsin Right to Life has also sued over that state's public financing program. Its lawyer, James Bopp, has represented West Virginia's anti-abortion group in its challenge of campaign finance rules addressed by the other piece of election-related legislation passed this session.
That measure responds to this year's landmark U.S. Supreme Court ruling that struck down limits on corporate political spending. While complying with that decision, the legislation also relies on it to try to regulate third-party election ads.
Twice before in recent years, state lawmakers have sought to require disclosures behind ads that appear to advocate the election or defeat of a candidate but don't employ such specific phrases as ''vote for.'' But each time, a federal judge has ruled the effort unconstitutionally vague or not in keeping with federal rules.
The bill sent to Manchin this session seeks to pass muster by embracing findings in the recent ruling and defining the equivalent of ''express advocacy'' as language ''susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.''
Bopp and officials with the Center for Individual Freedom, a nonpartisan group that also sued West Virginia over these rules, did not respond to requests for comment Friday. But the legislation could revive their most recent challenge, which remains pending, if Manchin signs it.
Patch noted that the bill also tries to require disclosure of election-timed ads that use non-broadcast forms as newspapers and billboards. Federal rules govern only radio and television ads.
''West Virginia seems to be going further than the federal government in regulating political speech, and they're in dangerous, uncharted waters,'' he said. ''A federal court would likely demand such a justification to uphold expanded government power in this area.''
Hall said recent court rulings underscore the importance of such disclosure efforts.
''It's just essential that sunlight be cast on who is spending in elections,'' Hall said. ''The prospect for corruption is apparent when special interests are allowed to write blank checks behind closed doors.''
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Lawyers a luxury in rural Georgia - State has plenty of attorneys, but few serve outside metro areas
By Péralte C. Paul, The Atlanta Journal-Constitution
April 1, 2010
McRae — Sylvia Moon, along with everyone else waiting in the packed reading area of the public library, hopes the young lawyer from Macon can help.
It’s the third week of the month, and the reading area looks more like an office waiting room as the 10 people each seek a few minutes of his time. It’s a common situation in McRae, accentuated by a poor economy that has tightened access to legal help and driven an increase in cases in areas such as bankruptcy.
Moon’s problem: She’s being sued for a defaulted credit card account she says she never opened.
To her relief, Mike Tafelski, the lawyer, tells her not to panic and agrees to represent her.
“It’s so much off your mind when you get somebody to help you,” she says later, bristling at the idea of being seen as a deadbeat. “I’m 73 years old and I still work every day except Sunday. I pay my bills.”
For Moon and others who came to the library on a recent Wednesday, Tafelski, an attorney with the Georgia Legal Services Program, is their sole lifeline to legal help.
Attorneys are a rare species in McRae. Just a handful practice in this Middle Georgia community some 165 miles southeast of Atlanta.
The situation in McRae underscores a long-standing problem for much of rural Georgia: Dwindling populations and the loss of thousands of manufacturing jobs over several decades, coupled with a lack of economic diversity, leave little room for a thriving services sector.
Lots of lawyers, but ...
Not that Georgia is in short supply of lawyers. There are more than 28,200 of them actively practicing in the Peach State, according to the State Bar of Georgia. But roughly 19,500 of those lawyers — 69 percent — practice in the core metro Atlanta counties of Clayton, Cobb, DeKalb, Fulton and Gwinnett.
That leaves about 8,700 practicing lawyers sprinkled across Georgia’s remaining 154 counties. In fact, 35 of those counties have fewer than four practicing lawyers, and some have none at all.
“As populations continue to decline in many rural parts of the state, what they have is such a small population that they don’t support much economic activity of any kind,” said Harvey Newman, a public management and policy professor at Georgia State University.
Lawyers, like other service professionals, tend to cluster in the state’s metro areas, which provide a more dependable stream of clients and, thus, income.
Medical doctors have several programs that forgive portions of their loans for agreeing to serve poor and rural communities. But new lawyers, who on average graduate with loans of $71,400 to $91,500, depending on whether they went to public or private law schools, have fewer such incentives.
The down economy has only magnified the lack of access rural residents have to legal representation, say attorneys with the Georgia Legal Services Program. The 39-year-old organization provides legal aid to low-income Georgians outside of metro Atlanta, which is serviced by Atlanta Legal Aid.
The economy also explains the spike in calls for help that the GLSP’s 70 field attorneys have received from people seeking to resolve problems ranging from bankruptcy and housing foreclosures to food stamps and denial of unemployment benefits.
Meanwhile, funding constraints — another product of the poor economy — loom. For example, the interest earned on lawyer trust accounts stemming from real estate deals is collected into a fund overseen by the Georgia Bar Foundation.
But the fund’s contribution to the GLSP’s $14 million annual budget has dropped by half from $2.8 million in 2009 to $1.4 million this year as the housing market continues to lag, said Phyllis J. Holmen, the GLSP’s executive director. “We expect it to drop by another half in 2010-2011.”
Meanwhile, the GLSP’s caseload is expected to rise.
“It is going up dramatically. When you’re in the office, the phone does not stop ringing,” said Tafelski, who works in the GLSP’s Macon office, which covers a 23-county swath of Middle Georgia. Each week he visits one of the four counties on his watch — Dodge, Montgomery, Treutlen and Telfair, where McRae is the county seat — to meet with existing clients and, depending upon the situation, take on new ones.
“I remember when I first started circuit riding 2 1/2 years ago, I’d have maybe two people coming to me and nobody else,” he said. “Now you’re going from two clients a month to 15 to 20.”
Access to attorneys is just one factor that explains the jump, said Tim Floyd, a Mercer University law professor and member of the Georgia Civil Justice Committee, which was empaneled by the state Supreme Court to examine the civil legal needs of Georgians.
“It’s partly a matter of affording lawyers,” Floyd said. In a report released last year, the committee found 1.65 million low- and moderate-income Georgia households can’t afford an attorney.
Several of the clients who met Tafelski at the library said they couldn’t afford a private attorney for their cases, which ranged from child custody and bill collection disputes to divorces and the division of property they entail.
Cost explains why many more litigants are coming in without representation in civil matters and the increased reliance on public defense attorneys in criminal cases, said Gene Johnson, Telfair County’s Superior Court clerk.
“We do have a lot of people coming pro se,” Johnson said, explaining that they did not have legal representation. On a recent “motion day,” when the court hears uncontested filings, nine of the nine were pro se, he said.
“So many people are going that way because they can’t afford to pay $1,500 to a lawyer,” he said.
Cost always an issue
The GLSP, which closed more than 11,000 cases last year, up from 9,506 in 2007, doesn’t have the staffing to accept every civil case. And because of its government funding, it is prohibited from representing people in criminal matters. Those cases would often be referred to its network of private attorneys who could take them on for free or for a reduced rate.
But those lawyers are becoming more resistant as the economy is hurting their paying clients’ ability to pay, Tafelski said.
“Cost is always an issue, and it’s certainly become an issue in a bad economy,” said Josh Bell, an attorney in Whigham, a South Georgia city about 40 miles north of Tallahassee.
Bell, who has two pro bono cases pending, says more people are asking for breaks on his rates, which include a $1,200 retainer fee for an uncontested divorce and $175 an hour for other services.
“I can see there’s certainly been some push-back,” said Bell, who started his own firm in November.
“I’ve got to make a living, and I want to provide for my family, too,” he said. “But I make exceptions. It has to be a real egregious situation, but I do make exceptions.”
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New Front Opens in Dispute Between ABA, FTC
The Legal Times
March 31, 2010
The American Bar Association and the Federal Trade Commission have been battling for a year over whether regulations designed to prevent identity theft should apply to lawyers. Now, they're tangling again over regulations aimed at mortgage fraud.
At the heart of the disputes is what role, if any, the federal government should have in regulating the legal profession, especially as the government steps up efforts to protect consumers.
In the latest round, the FTC announced a proposed rule in February that would affect for-profit companies that try to prevent home foreclosure by helping consumers renegotiate mortgage loans. The rule, which is laid out across 32 pages of the Federal Register, would bar the collection of advance fees and impose recordkeeping requirements, among other regulations.
The rule would exempt lawyers in some cases, but the ABA says the exemptions are too narrow. In an 11-page letter to the FTC, Thomas Susman, the ABA’s chief Washington lobbyist, writes that the rule as written could drive lawyers out of the mortgage-modification business and, as a result, harm consumers. The ABA wants a broader exemption for lawyers and their nonlawyer employees.
“With fewer lawyers available to represent consumer debtors, many more of these consumers will be forced to retain nonlawyer, for-profit [mortgage assistance companies] who, unlike licensed attorneys, are not subject to the strict ethical standards, supervision, and disciplinary authority of the state courts,” Susman writes.
The ABA sent its letter March 29, which was the deadline to submit written comments on the proposed rule.
Birmingham Business Journal
March 24, 2010
The Alabama State Bar has published a new book, “From Power to Service: The Story of Lawyers in Alabama,” tracing the history of the legal profession in the Yellowhammer state. It is written by Birmingham attorney and legal historian Pat Boyd Rumore.
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Paying the defense – [Editorial]
March 24, 2010.
The cost of providing legal defense to indigents often outstrips the money set aside in Alabama in an attempt to provide fair trials.
Every American accused of a crime has the right to a trial by a jury of his or her peers. Part of that right includes competent legal counsel, which means someone has to pay the lawyers.
But those who face charges and are unable to pay an attorney's fee must rely a court-appointed lawyer to argue his or her case.
Alabama provides money for such situations through a court tax, but each year the needs of the indigent outstrip the available money. So, the difference is made up from the state's General Fund, which diverts money from other departments and agencies.
In 2008, the Alabama Fair Trial Tax Fund generated $22 million, but indigent defense cost $69 million that year.
A group of economics and finance professors at the University of North Alabama believe they have hit upon an idea that could save the state some money for indigent defense. Their research is based, in part, on a theory favored by Alabama Supreme Court Chief Justice Sue Bell Cobb, who believes careful management and a uniform system can save money.
Kathy Adler, Jim Couch and Keith Malone compared the system Colbert County uses to provide legal defense to those who can't afford it to that used in Lauderdale County. In Colbert, five lawyers are retained on contract; Lauderdale appoints lawyers on a case-by-case basis.
Examining the case load from 2005, the professors found that Colbert spent an average of $918.18 per case for indigent defense, compared to $3,195.65 per case in Lauderdale.
The professors say Colbert's model for providing indigent defense should be explored as a possible statewide solution to containing costs, especially with the court system facing potentially crippling budget cuts.
There is a fine line to walk, however. We agree that some uniformity could reduce costs, but court officials should be careful that costs are not cut so deeply that defendants don't receive the legal advice they need to adequately plead their cases.
A fair trial, which is one of the cornerstones of American democracy, is more important than saving a few tax dollars.
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Indigent Defense Reform on the Way?
By Peter Teske, Lagniappe
March 23, 2010
Last year Mobile County’s top-earning indigent defense attorney, Habib Yazdi, billed the state $267,193 for 523 cases, according to state comptroller records. But claims like Yazdi’s containing plump sums earned solely from representing the poor might be a thing of the past if the Alabama State Senate can get Senate Bill 497 through the committee where it currently sits.
Senate Bill 497 would provide oversight for the state’s indigent defense system.
The bill, sponsored by Sen. Roger Bedford (D-Russellville), among several other objectives, proposes to amend existing law by creating a state level 14-member Alabama Indigent Defense Commission, an office of Indigent Defense Services and 41 five-person indigent defense advisory boards in each of Alabama’s judicial circuits.
“Judge (Sue Bell) Cobb asked me to introduce it. I’ve been introducing it for the past two or three years,” Bedford said. “We’ve got to the spark conversation.”
A conversation would likely involve the groups created working together to determine the best delivery of indigent defense on a county-by-county basis, according to John Pickens, the executive director of Alabama Appleseed Center for Law and Justice.
“Basically the local indigent defense advisory board — which is made up of five members within each circuit — that if those five members agree on a particular method of delivery of services and then if three members of the (state level) commission agree with them, then that would be the system used in that particular circuit,” Pickens said. “In the bill it provides that people who serve on this (the commission) have substantial experience in criminal defense and are committed to indigent defense services.”
Under the current system, in the majority of Alabama’s circuit judges appoint attorneys who volunteer to provide their services to the indigent. Accordingly, the circuit’s presiding judge must approve subsequent billing of services, which are then paid for by the state and processed by the state comptroller’s office. Just fewer than 10 counties in Alabama have public defenders’ offices. Auditing the bill of service statements is left to each individual circuit’s presiding judge.
In Lagniappe’s previous articles concerning Alabama’s indigent defense system, David Carroll, Research Director for the National Legal Aid & Defender Association said the main predicament this system fosters is a complete disconnect between the judges who approve a bill for compensation and the state, which funds the system.
SB 497 takes care of the disconnection by providing a dedicated auditing service, the bill states.
Respective clerks of a given trial or appellate court would submit the bill for compensation of an appointed counsel to the Office of Indigent Defense services for audit and approval then forwarded to the state comptroller for payment, according to the bill.
“The assumption is that the commission will make decisions to, one, make sure that the proper system is in place and each circuit is delivering adequate, effective representation and that, two, the mechanism for paying attorneys doing that is a system that will make sure there is reasonable adequate compensation and funds for indigent defense,” Pickens said.
Attorneys can currently charge the state $60 per hour for in-court fees, $40 per hour for out-of-court fees and an overhead charge that varies by county. The new legislation would eliminate the ability to charge overhead, but raise the hourly rate to $85 per hour in noncapital cases and $100 per hour in capital cases.
Today, a combination of Alabama’s general fund and fair trial tax fund pay for the system that cost $66 million in the fiscal year 2009. In 1998 the system operated at a cost of $17 million.
“It’s sort of an open-ended funding mechanism,” Pickens said. “That’s good in a way because it makes sure there’s adequate money for indigent defense, but at the same time it has come to light that some of the attorneys around the state are making six figures on indigent defense fees and taking a lot of cases. Then it’s hard to evaluate if someone makes $150,000 on indigent defense fees and has 75 cases if that’s too many or how the 150 was allocated. They may have handled a death penalty case and got $85,000 which would probably be OK.”
When Lagniappe presented Pickens with the number of cases billed by Yazdi and his subsequent income, he was surprised at the volume.
“500-and-something cases is way too many for any one lawyer to handle in a given year to be able to give any kind of personal attention in a meeting,” Pickens said. “I think I’ve heard 150 felony cases is sort of a maximum workload.”
Pickens supports the bill and the results he thinks it would produce in regards to reforming Alabama’s indigent defense system steadfastly, but if the bill has a weak point, he says, it would be the power handed to the local advisory boards.
“Diluting the authority of the state’s indigent defense commission — to have the authority to determine what type indigent defense system is used within a circuit — you know, the way that it’s set up giving the local advisory board and just three members of the state’s commission voting in their favor to establish a system I think dilutes the state’s indigent defense commission’s authority and their ability to make a change,” Pickens said. “It may be pretty easy for them to block any changes. I’m concerned about that.”
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When Doctor Visits Lead to Legal Help
By ERIK ECKHOLM, The New York Times
March 23, 2010
It was not the normal stuff of a pediatric exam. As a doctor checked the growth of Davon Cade’s 2-month-old son, he also probed about conditions at home, and what he heard raised red flags.
Ms. Cade’s apartment had leaky windows and plumbing and was infested with roaches and mold, but the city, she said, had not responded to her complaints. On top of that, the landlord was evicting her for falling behind on the rent.
Help came through an unexpected route. The doctor referred Ms. Cade to the legal aid office right inside the pediatric clinic at Cincinnati Children’s Hospital.
Within days, a paralegal had secured an inspection that finally forced the landlord to make repairs, and also got the rent reduced temporarily while Ms. Cade searched for less expensive housing.
“It got done when the lawyers got involved,” Ms. Cade said.
Doctors and social workers have long said that medical care alone is not enough to address the health woes of the poor, which are often related to diet, living conditions and stress.
The pediatric clinic in Cincinnati is one of 180 medical sites around the country that now seek to address at least some of these broader issues by bringing lawyers and doctors — so often foes in the courtroom — together into a close partnership.
In a process being duplicated nationally — the latest partnership started in West Virginia in the fall — the doctors at Children’s Hospital, using a protocol that started 18 months ago, referred 500 patients for legal aid last year. Some needed help getting food stamps, heating aid or cash welfare that had been wrongfully denied; some received help with evictions or home repairs; others got legally mandated help for children with learning disabilities.
The idea was developed in the 1990s by Dr. Barry Zuckerman, chief of pediatrics at the Boston Medical Center. In recent years it has taken off, mainly in pediatric centers, although the technique is being tried with cancer and geriatric patients as well.
“This has transformed the way we think about giving care,” said Dr. Robert S. Kahn, a pediatrician at Children’s Hospital who helped start the collaboration with the Legal Aid Society of Greater Cincinnati.
A survey of patients in Dr. Kahn’s clinic, where nearly all are on Medicaid, found that 28 percent of families had their gas or electricity cut off in the previous year and that 23 percent had doubled up in housing or had to move to a cheaper residence. One in seven mothers with infants said they had diluted their formula to make it last, and one in three said they had sometimes run out of formula without money to buy more.
The partnerships do more than provide quick access to legal aid, Dr. Zuckerman said. They alter perspectives for both the medical and legal professions, as physicians become better at spotting underlying threats to health, and lawyers engage in what he called “preventive law.” The concept has been officially endorsed by the American Bar Association and the American Academy of Pediatrics.
A recurring concern of hospital executives has been that patients might try to draw the lawyers into malpractice suits. Dr. Zuckerman said that had not happened, and the legal aid groups involved say that malpractice was not their mandate and that they would tell complaining patients to seek advice elsewhere.
A vital first step is teaching doctors how to ask the right questions, said Elaine Fink, a senior lawyer with the Legal Aid Society who founded the partnership with Dr. Kahn of Children’s Hospital.
“What can a doctor feel comfortable asking in a few seconds that will identify a legal issue?” Ms. Fink said. “It’s quite different from an attorney questioning a client.”
The society helped develop a two-week course that teaches medical interns how to ask about home life, school and finances during routine exams.
Diana A. of Cincinnati took her prematurely born daughter for her first checkup in the fall. (She spoke on condition she not be identified because she did not want her relatives to know of her hardships.) Diana said she had been working as a home-health aide and had received no paid maternity leave. Her application for food stamps had inexplicably languished. “Pretty much all I was eating was oatmeal,” she said.
The baby was not gaining the expected weight. Doctors introduced her to Deanna White, a paralegal who got Diana baby formula and other aid on the spot, and food stamps and temporary cash assistance within days. Her daughter is now doing fine.
Felisa Tremble’s 16-year-old son was flunking out of school and she had been unable to get his learning disabilities properly diagnosed until she took him to Children’s Hospital. A psychiatric nurse called in legal aid and with that help, Ms. Tremble said, Medicaid paid for a costly neuropsychological exam and the school developed an individual learning program for her son.
“He likes school now,” Ms. Tremble said. “If we hadn’t seen the lawyers, maybe he wouldn’t be in school at all.”
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From Scandal to Example in West Virginia – [Editorial]
The New York Times
March 19, 2010
In 2004, the chief executive of a large coal company spent an appalling $3 million to help elect a judge in West Virginia — a campaign that spotlighted the need to reform the way states elect judges. In 2010, the State Legislature there has approved a pilot program of voluntary public financing for two State Supreme Court elections in 2012.
Under this promising initiative, candidates who raise a reasonable threshold of small contributions will qualify to receive $200,000 for a contested primary and up to $350,000 for a contested general election. The bill provides additional money when there is a high amount of spending by nonparticipating candidates or by independent forces. Much will depend on the Legislature’s provision of full financing for the new system and whether big-money interests show respect for the public by tempering their spending in judicial contests, leaving candidates to speak for themselves.
The measure aims to restore public trust in the integrity of the judiciary. It was badly eroded by Massey Energy’s involvement in the election of Chief Justice Brent Benjamin, who then voted twice to throw out a major damage award against the company. Justice Benjamin’s stubborn refusal to recuse himself was the subject of a 5-to-4 United States Supreme Court ruling, which in 2009 sensibly required his recusal. The court noted the “serious, objective risk of actual bias” created by such an outsize campaign expenditure.
West Virginia, which will join North Carolina, New Mexico and Wisconsin in adopting public financing of judicial races, is setting a good example at a time when judicial neutrality and the appearance of neutrality is under severe threat across the country from escalating special-interest spending on judicial campaigns.
Alabama court system to lay off 100+ workers
By Phillip Rawls, The Associated Press
March 16, 2010
The Alabama court system is laying off more than 100 temporary employees in anticipation of severe budget cuts that could force even more court workers from their posts.
Chief Justice Sue Bell Cobb said Monday the layoffs, involving about 4 percent of the court system's 2,300 employees, are effective March 31.
"Even with this action, it is possible that further reductions will have to be made," Cobb said.
Scott Mitchell, Cobb's chief of staff, said the temporary employees facing layoffs mostly work in court clerks' offices processing paperwork.
"Naturally, it will cause some delay in access to justice," he said.
These are the first major layoffs announced in state government since a new fiscal year began Oct. 1.
Paul Thomas, deputy director of the state Personnel Department, said Monday no major state agency has filed a plan to lay off permanent employees due to anticipated budget problems.
Legislative leaders who met with the governor last week predicted that he soon will order across-the-board cuts in the state General Fund budget because appropriations exceeded tax collections. They estimated the cuts would be about 12 percent.
Riley said last week he expects no decision on prorating the budget until after the Legislature returns from its spring break on March 23.
Cobb said the layoffs could grow to several hundred if the state does not get additional federal funds or Riley does not use money from the state's "rainy day" account to soften the blow of budget cuts.
The court system is appropriated $165 million from the state General Fund budget for this fiscal year. The governor has recommended $129 million for the next fiscal year, which would be a 22 percent reduction.
The upcoming layoffs are similar to what occurred in 2003, when the court system had widespread cuts due to state budget troubles and some jury trials were delayed.
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Ga. chief judge says budget cuts threaten courts
SHANNON McCAFFREY, Assoiciated Press Writer
March 16, 2010
ATLANTA (AP) — Georgia's top judge warned state lawmakers Tuesday that deep cuts to the state budget are making it "increasingly difficult" for the courts to do their constitutionally mandated duties.
Carol Hunstein made the remarks in the state of the judiciary address, her first as the Georgia Supreme Court's chief justice, before a joint session of the state Legislature.
"Georgia's judiciary is at an historic juncture," Hunstein said.
Hunstein said the court system's backlog has grown as state money flowing to judicial branch has dwindled.
The problem is particularly pronounced in the state's superior courts, which handle criminal cases.
In the last five years, Hunstein said, superior court caseloads have jumped 20 percent and the appointment of new judges has failed to keep pace. Recent data indicate that Georgia now has a shortfall of 72 superior court judges, she said.
A Republican state senator last week proposed cutting 19 superior court judges, for a savings of up to $14 million. Mitch Seabaugh argued the superior court system has not borne its share of the burden during the state's budget crisis and has made far fewer cuts than many other departments. The plan has failed to gather much support.
Georgia has been grappling with 15 consecutive months of declining tax collections, forcing deep cuts throughout state government.
Hunstein said Georgia's judicial branch received less than 0.8 percent of the total state appropriations in 2009. That's the judiciary's smallest share of state appropriations in recent history and comes as the state's population and needs have grown, she said.
"The need for justice does not diminish with a shrinking economy," Hunstein said. "Indeed as our caseloads attest, it grows ... our citizens suffer when business and personal disputes are not heard and resolved. Our public safety is at risk when crimes are not prosecuted, and criminals are not punished."
Hunstein said the constitutional requirement for speedy trials in criminal cases is posing a threat to civil cases, which have been placed on the back burner. She said one judge had to suspend all civil jury trials for six months. In some parts of the state, it takes up to two months to get a hearing in a temporary child custody case — a process that used to take a couple of weeks.
Hunstein asserted that the courts have shared the burden of state budget cuts. Judges have volunteered to take unpaid furlough days to keep costs down. Layoffs have trimmed the work force and law libraries have closed.
"At the state's highest court, our operating budget has shrunk so low that we had to return a copy machine that we desperately needed," she said.
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An Advocate for Equal Justice – [Editorial]
The New York Times
March 10, 2010
Providing poor defendants effective appointed counsel is more than a constitutional
obligation. It is a concrete measure of the nation’s commitment to equal justice under law. Yet indigent defense offices across the nation have been allowed to sink into crisis. They have fallen victim to insufficient financing, overwhelming caseloads and a slew of policies that hamper effective representation.
The civil legal aid system is no less challenged. Short on resources, local offices supported by the Legal Services Corporation, the federal agency that provides legal assistance for low-income Americans in civil cases, must turn away about half the eligible individuals who contact them for help with life-altering issues such as child custody or saving their homes from foreclosure.
One rare piece of good news is that Attorney General Eric Holder Jr. has made it his mission to try to narrow this gap in the administration of justice. To lead his campaign, he has hired Laurence Tribe, the prominent Harvard Law School professor and constitutional scholar.
The basic, sound idea is to look at ways indigent legal services can be improved, including by creating incentives for states to make better use of pro bono legal assistance, and help the growing number of people who represent themselves navigate the courts.
Realistically, Mr. Tribe cannot be expected to solve all the financial and other problems impeding the delivery of indigent legal services. But in applying his formidable teaching and advocacy skills, he can be a catalyst for bolstering stressed criminal and civil legal service providers and finding fresh strategies for serving more Americans with their urgent legal needs.
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Nationwide, state court systems continue to feel the pinch
Sheri Qualters, The National Law Journal
March 10, 2010
As state court systems nationwide struggle with budget shortfalls, a Boston Bar Association task force is trying to head off a proposed $10 million Massachusetts court system cut in the upcoming fiscal year.
The budget decrease for the fiscal year starting July 1 would add to the steep $24.4 million reduction rolled out in the current fiscal year. The court also tightened its belt with $22 million in voluntary reductions during fiscal year 2009.
The state's judicial budget "has been cut so far to the bone" already, said Joan Lukey, the chairwoman of a Boston Bar Association task force on the FY 2011 Judiciary Budget. "The question is, at what point do you reach the precipice and fall over?" said Lukey, a Boston litigation partner at Ropes & Gray. "It's difficult for a court to perform its function [in some areas]."
Child and elderly abuse cases, for example, used to be heard within a week and are now routinely delayed a couple of months, she said.
Several courts also run sessions without court officers. And at the Probate and Family Court in Middlesex County, assistant judicial case managers cover all courtroom sessions because there are too few sessions clerks to do the work.
The Massachusetts court system is functioning without more than 600 employees who have left since July 2008, mostly through early retirement programs.
But Massachusetts is far from the only state feeling pinched.
Court systems in Arizona, California, Florida, Georgia, Illinois, Michigan, Nevada, New York, Ohio, Texas and Virginia are facing slashed budgets, higher fees and fewer resources or demands to curtail spending. Court systems in the District of Columbia and Maryland, in contrast, are faring comparatively well.
New York Gov. David A. Paterson recommended $130 million in cuts for the state's judiciary in the 2010-11 year, which begins on April 1, according to The New York Law Journal, an NLJ affiliate publication.
Chief Judge Jonathan Lippman of New York has said the courts would have to lay off 2,000 employees to meet those numbers. Instead, Lippman wants to boost court spending by $183.5 million, including $48 million for the first judicial pay raises since 1999.
"We cannot function without the court's [recommended] budget," said Lippman in a state bar speech earlier this year.
Georgia legislators are considering boosting dozens of court filing fees to narrow a state budget gap for the fiscal year that begins July 1, according to a story in the Fulton County Daily Report, an NLJ affiliate publication.
Last year, Georgia boosted all Supreme Court and Court of Appeals filing fees, except for criminal cases and most habeas matters, to $300 from $80.
And moving down the coast, the Florida Supreme Court recently asked the state legislature to fund 90 new judge positions to address docket pressures created by recent budget cuts and the foreclosure crisis.
NLJ affiliate publication The Daily Business Review noted that the Florida legislature has not created any new judge positions since 2006. Court system budget cuts of 10% since July 2007 have prompted the elimination of 291 positions.
In the mid-Atlantic region, newly elected Virginia Gov. Bob McDonnell is proposing a court system budget for the fiscal year beginning July 1 that slashes $11 million from the current $441 million budget.
That's on top of $5 million in court system cuts in fiscal year 2009 and $3 million in fiscal year 2008.
Maryland's judicial budget remained level in fiscal years 2009 and 2010 and is expected to remain relatively flat again, despite a $2 billion state funding shortfall. Gov. Martin O'Malley's proposed 2011 budget for the courts, for the year beginning July 1, is $434 million, or a slight gain over this year's $433 million in funding.
In both Virginia and Maryland, the court system is funded by a combination of state and local government entities.
Courts in the nation's capital are faring better by drawing from federal funding sources.
Thanks to an agreement struck back in 1997, Washington's local courts are entirely paid for by the federal government. So even with the District facing a massive budget hole, the system has been able to ask for a significant increase to its funding. Its $398 million request for the 2011 fiscal year, which starts Oct. 1, would be a $138 million hike from last year — $9 million more for operating expenses, and $129 million more for capital improvements. The proposal is currently before Congress, said D.C. Courts spokeswoman Leah Gurowitz.
Over in the Midwest, court systems are hurting, including in Michigan, where the state's judicial branch has lost 28% in funding and 18% of its staff during the past decade due to the state's economic hardships.
Fiscal year 2011, which starts Oct. 1, doesn't look much better: Gov. Jennifer Granholm has proposed giving $500,000 less in 2011 to the Michigan Supreme Court and the State Court Administrative Office. Court officials, meanwhile, are pleading for $1.3 million in additional funding, arguing that more cuts will jeopardize crucial programs such as foster care, trial court oversight and drug courts.
The state's county and municipal courts, which are funded locally, are also feeling some pain.
In neighboring Illinois, where trial courts are also locally funded, state courts face a $21 million budget cut for the fiscal year beginning July 1, due to a projected state deficit of at least $11 billion.
And in Ohio, a $23 million budget deficit in Cleveland is forcing the Cleveland Municipal Court into making some cuts. The court, which is trying to slash $684,000 from its current budget, which runs with the calendar year, is forcing about 310 employees to take 3 1/2 unpaid furlough days in 2010, equal to a 1.46% pay cut. They will also lose cost-of-living raises and longevity pay next year.
In California, the state's budget crisis forced the courts to close once a month beginning last September.
Other austerity measures include judicial pay cuts, a hiring freeze and the closure of the California Supreme Court's clerk's office in Los Angeles. The Los Angeles County, Calif., Superior Court also expects to lay off more than 300 people this month.
Despite the fiscal pain, California Chief Justice Ronald M. George said in his Feb. 24 State of the Judiciary Address that the court would still continue to support funding for a system-wide computerization project for the upcoming fiscal year, which begins July 1. He also said he would not re-channel construction funding to operational expenses.
The 200-member Alliance of California Judges, formed in the wake of the court closure policy, has criticized those decisions. "Right now, they've been dumping literally hundreds of millions of dollars into a statewide computer system," said alliance director and Los Angeles Superior Court Judge Charles Horan. "While it's nice, it is an extravagance that can't be afforded right now while we're closing."
Other Western court systems are also suffering, including Nevada's. The state court system has taken a 4.6% reduction in its budget, said William Gang, public information officer of the Nevada Supreme Court. The courts managed to avoid layoffs but were forced to cut building projects, travel, and upgrades to its computer system.
By July 1, if anticipated cuts continue, Gang said he anticipated that the court's 100 staff members would take mandatory furloughs of one day a month.
In Clark County, home of Nevada's largest court system based in Las Vegas, officials were forced to make cuts of 5.7% in the past two fiscal years due to reductions in county budgets, said Steve Grierson, court executive officer of the Clark County Courts, which includes justice courts and district courts. To make the cuts, the court instituted voluntary furloughs, reduced overtime compensation and decreased its security fund. The county also reduced the court's budget for salaries and benefits by $3 million this fiscal year, he said.
A 5% cut anticipated for fiscal year 2011, which begins on July 1, might force the court to institute layoffs, he said.
In Arizona, the state court budget has been slashed by $38 million since July 1, 2007, said Jennifer Liewer, communications officer for the Arizona Supreme Court. She said the court has limited travel, imposed a hiring freeze and asked for voluntary pay reductions.
In Texas, Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus asked each state agency and appellate court in January to submit a plan for saving 5% on their 2010-2011 appropriations, according to The Texas Lawyer, an NLJ affiliate.
The state's next budget biennium begins on Aug. 31, 2011.
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Making legal aid more accessible and affordable – [Op-ed]
By Gillian Hadfield, The Washington Post
March 12, 2010
The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.
In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.
Nonprofit organizations as well as for-profit firms can develop specialized expertise in particular areas of legal need -- housing, immigration, debt-management, child custody and so on. Often, studies show, specialized non-lawyer providers ultimately offer better service than the solo and small-firm practitioners who do someone's taxes one day and provide criminal defense the next.
In other countries, consumer and community organizations can provide legal services, as can unions and other workplace groups. Starting next year in England, so too can large companies such as Tesco, the European equivalent of Wal-Mart. There are online subscriber services giving legal advice on employment or consumer problems. The legal equivalent of TurboTax is probably just around the corner, if not already on British computer screens.
Meanwhile, in the United States, the bar is filing class-action lawsuits against fledgling online legal providers such as LegalZoom and shutting down alternative providers who threaten local lawyers' markets and offend lawyerly sensibilities. Many American judges and lawyers continue to insist that the only model for legal services is one-on-one advice with an attorney. No corporations, no venture-capital-backed entrepreneurs, no intelligent software to complete legal documents, no community groups or nonprofits.
Free legal aid clinics hardly fill the gap: Only 1 percent of the 1 million lawyers in the United States do either legal aid or public defender work; student-staffed law clinics can operate only under the supervision of a licensed attorney. Pro-bono hours at best amount to about 2 percent of total legal effort.
There's nothing wrong with ensuring quality of service, but attacks on innovative providers in the United States go well beyond what can be justified in a world that looks so much to law to organize everyday life. They also go much further than other wise countries go.
My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can't turn to local volunteer organizations, their unions or consumer organizations. They can't buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.
This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice -- $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles -- not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.
Harvard Law professor Laurence Tribe was appointed recently to spearhead a much-needed Justice Department initiative to help expand legal access for the poor. Tribe has taught generations of lawyers about the rights enshrined in the Constitution. He now has an opportunity to accomplish a fundamental transformation in how effective legal rights, and obligations, are in practice in the law-thick daily lives of ordinary Americans. As more learn about the much different approach to regulation of legal markets and the wider array of legal resources available in other democracies, I hope that his newest students, the very lawyers and judges who are blocking the road to a different way of doing law, will become his allies in increasing access to justice.
The writer is a professor of law and economics at the University of Southern California and a visiting professor at Harvard Law School.
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Study Shows Money Flooding into Campaigns for State Judgeships; Justices Ginsburg, O'Connor Say Fundraising Could Corrupt System, Reform is Needed
By MATTHEW MOSK, ABC NEWS
March 17, 2010
In rare public remarks last week, U.S. Supreme Court Justice Ruth Bader Ginsburg said the money involved in electing judges remains one of the most pressing concerns facing the American court system. And she joined her former colleague, Sandra Day O'Connor, in calling for reform.
"If there's a reform I would make, it would be that," Ginsburg said when asked about the issue at the National Association of Women Judges Thursday night.
Yet money has continued to pour into the campaign accounts of state judges around the country, and ABC News has obtained an advanced copy of a study showing the amounts involved are unprecedented.
In the past decade, candidates for state judgeships raised more than $206 million, more than double the $83 million judges raised in the 1990s, according to the soon-to-be released study by the Brennan Center for Justice at NYU School of Law and Justice at Stake, two non partisan groups that advocate for reforming the judicial selection process.
Three of the last five state Supreme Court election cycles topped $45 million. And judges shattered fundraising records in all but two of the 21 states with contested Supreme Court elections in the last ten years, the report found. "State judicial elections have been transformed," the report says, and the money involved has created "a grave and growing challenge to the impartiality of our nation's courts."
Concerns about the expanding role of money in judicial elections achieved widespread attention two years ago when ABC News and other outlets documented contributions from West Virginia mining executive Don Blankenship to fund an advertising campaign for a candidate for that state's high court. The CEO of the country's fourth largest coal company helped raise more than $3.5 million for ads aimed at getting a new judge elected, all while his company was appealing to the State supreme court a $70 million judgment against it.
That case led the U.S. Supreme Court to cry foul, saying a justice should step aside from a case if one of the parties has given so much money that the probability of bias would not be "constitutionally tolerable."
Electing judges is a common practice in the U.S., with nearly 90 percent of all judges in 39 states facing at least some form of election during their tenure. Some advocates for expanding judicial elections say the contests serve a valuable purpose. Jim Bopp, an Indiana lawyer who has been pushing for more states to elect their judges, said many conservatives view the elections as "a way to keep judges within the proper bounds. A way to keep them judges rather than judicial activists."
But others see the Blankenship controversy as a proverbial canary in the coal mine for what top judicial scholars – including Justice O'Connor -- are now calling an alarming political trend. The amount of money flowing into these contests, O'Connor told a group of Georgetown Law students last month, has become "a threat to judicial independence."
"If both sides unleash their campaign spending without restrictions," O'Connor said, it will "erode the impartiality of the judiciary."
More expensive battles are coming. Thirty eight state court justices will be on state ballots this year, and in many of the races, the fundraising has already begun.
Last week, on the same day Ginsburg was calling for reform, top Alabama appellate lawyers were flowing into the Ruth's Chris Steak House in downtown Birmingham for a reception honoring Alabama Supreme Court Justice Michael F. Bolin, according to an invitation to the event. The requested contribution was $250.
Bolin is seeking reelection to the bench after first being elected in 2004 with more than $1 million in financial support from business groups, according to the National Institute on Money in State Politics. Alabama campaigns have been exceptionally contentious in recent years, as business interests and trial lawyers have squared off behind opposing candidates for the state supreme court. A 2003 study by the Institute found that out of 1,424 court cases they examined, 904 of them -- or 63 percent -- involved a party or attorney who had made a contribution to a Supreme Court Justice before that Justice ruled on the contributor's case.
Bopp said there's a reason Bolin and other business-backed judges won seats on the court. They were elected, Bopp said, to help reverse a trend of rulings that favored trial lawyers. For years, Bopp said, "Democrat judges in Alabama created tort hell."
"What was happening was, the trial lawyers had seized control of the state supreme court and their rulings were very favorable to the trial lawyers," he said. "There became very substantial opposition to these judicial activists and they were defeated."
Similar battles – fueled by business groups on one side, and trial lawyers on the other -- have been erupting all around the country. In many cases, the involvement of local interest groups serves to hide the role of the national money in the contests.
In Washington State in 2004, for instance, a pro-business group called the Voters Education Committee poured $1.4 million into attack ads in an attorney general's race.
After the group refused to identify its investors, the state launched an investigation that uncovered one major source of its funds – the U.S. Chamber of Commerce, the powerful pro-business lobby in Washington. Chamber officials declined to comment for this report.
Another flashpoint has been Wisconsin, where a business group made up of utilities, insurance carriers, investment houses , and others began supporting candidates in judicial elections. Wisconsin Manufacturers & Commerce spent $4 million on ads that blanketed the airwaves in recent contests for two seats on the Wisconsin State Supreme Court, according to research by the Wisconsin Democracy Campaign, a non partisan group that tracks political giving in the state.
The most controversial ad in the 2008 campaign was produced by the business-backed challenger to Justice Louis Butler. The ad accused Butler of setting a child molester free to rape again, and showed a photo of Butler, who is black, next to the mug shot of the rapist, who is also black.
"Louis Butler worked to put criminals on the street, like Ruben Lee Mitchell, who raped an 11 year old girl with learning disabilities," the ad said ominously. "Butler found a loophole … Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?"
The Wisconsin Judicial Commission called the ad misleading and the ad's sponsor, Michael Gableman, later conceded in a public statement that he made his case to voters "imperfectly and in shorthand, a necessity in judicial campaigns." Gableman narrowly won the election anyway and now sits on the court.
Lawyers for the Wisconsin business group have told reporters that their involvement in judicial elections is a matter of free speech, and that judges they help elect should be free to hear cases even when Wisconsin Manufacturers & Commerce is itself a party.
"Individuals and organizations spend money to help elect a judicial candidate precisely because they want that candidate to be a judge that is, to preside over cases, including their own," one of the group's attorneys, Mike Wittenwyler said in a petition to the court. "There is nothing corrupt about that. That is democracy."
After Wisconsin Manufacturers & Commerce spent $2.2 million to help elect conservative candidate Annette Ziegler in 2007, its lawyers filed a friend-of-the-court brief on a major corporate tax case. Ziegler authored a 4-3 decision in the case that ruled in the group's favor.
Notoriety from that episode, along with fallout from the U.S. Supreme Court ruling in the West Virginia case, helped prompt the court to consider new rules spelling out when campaign donations create conflicts of interest. What emerged were new guidelines saying justices do not have to sit out a case just because one of the parties involved donated to them.
At a contentious meeting where the justices debated the new guidelines, Gableman said forcing a justice to step aside would lend credence to the incorrect assumption that "judges, by receiving lawful campaign contributions, are somehow suspect or are going to be swayed or persuaded or more inclined to vote for one party or the other." "The electorate has the right to support the judicial candidates that they feel are the best," he said.”
But Wisconsin Justice Ann Walsh Bradley, one of the three dissenters to the new policy, said she was "dumbfounded" by the decision to let sitting justices solicit donations from parties with pending cases before them.
She said if she described that policy to her friends back home, she knew how they would respond. "Are you crazy?" would be their reaction, she told her colleagues. "Are you kidding?" The new recusal rules, the majority acknowledged, were taken nearly word-for-word from a proposal drafted by the Wisconsin Manufacturers & Commerce.
The partisan divide – [Editorial]
March 4, 2010
Don’t expect those caught up in it to acknowledge it, but America’s ever-widening partisan chasm is dragging us down.
We’re not referring to philosophical differences that make for interesting cocktail party repartee. We’re talking about something that’s more warfare than debate, a win-at-all-costs attitude where the good of the people is nothing more than an incidental by-product.
Aggressive partisanship at any level is destructive, but even more so when it’s closer to home — like within the Alabama Legislature.
There was a lot more than bingo up for discussion in the state house this week. The House Constitution and Elections Committee considered a measure that would have returned to the state judicial system the appearance of objectivity, if not objectivity itself.
House Bill 620 would have allowed for judicial candidates to be seated by non-partisan elections, something common sense would suggest would be a given.
If justice is blind and courts are to be impartial, why does Alabama require all potential jurists, from the state Supreme Court down to local district courts, to declare a party affiliation and run on a partisan ticket?
It’s a dichotomy that’s not lost on judicial candidates; we’ve interviewed many of them through the years, and most are almost apologetic about running as a Democrat or Republican for a job that demands allegiance to the laws of the state, not partisan philosophy.
However, this bold legislation did not even earn an opportunity for consideration before the full house. On Wednesday, it was killed in committee on a 7-6 vote.
Not surprisingly, six Republicans, whose party boasts a number of members on the bench, voted against removing politics from judicial races. Six Democrats voted in favor of the measure.
One lone Democrat, Joseph Mitchell of Mobile, voted with the GOP, killing the measure.
Politics create strange bedfellows.
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Thomas' conduct merits losing his law license – [Editorial]
February 26, 2010
HERMAN THOMAS' disbarment from the practice of law is well justified in light of his misconduct and misuse of judicial power as a Mobile County Circuit Court judge.
Mr. Thomas had already given up his judgeship before earning the unusual distinction of being disbarred twice in two days — first for his actions as a judge, and second for continuing to practice law after being suspended.
The standards of professional conduct as a member of the Alabama State Bar are much different from the legal requirements for conviction on criminal charges. Mr. Thomas was acquitted or had charges dismissed on all criminal counts last year.
Although at one time there were more than 100 criminal charges involving inmates who said Mr. Thomas checked them out of jail and paddled them for sexual gratification, none of those charges was proven in a court of law.
But admission to the practice of law and election to a judgeship carry the duty to adhere to professional and ethical standards of conduct. Without those standards and ethics codes, citizens cannot be confident that they will be well represented by their lawyers or that judges will decide their cases impartially and without bias.
Mr. Thomas, while a judge, interfered in cases assigned to other judges, gave some defendants special treatment, checked inmates out of jail and even ordered some of them released.
Tony McClain, general counsel for the Alabama State Bar, said that the evidence given at a disciplinary hearing Monday showed that Mr. Thomas paddled inmates. The five-member disciplinary panel found that he had engaged in dishonest, fraudulent behavior, Mr. McClain said.
According to Mr. McClain, the former judge maintained that he spanked five young men with a belt but that they were not criminal defendants at the time.
The bar hearing was closed to the public.
The fact that Mr. Thomas continued to practice law while under suspension demonstrates a further lack of respect for the State Bar and the legal system he once swore to uphold.
The disbarments are for five years, running concurrently, and at the end of that time Mr. Thomas may apply for reinstatement. Because of the scope of misconduct and disregard for the most basic of legal ethical standards, the Press-Register editorial board hopes the bar association will not allow Mr. Thomas to return.
Meanwhile, Mr. Thomas is now a candidate for the state Senate, running in the Democratic primary against incumbent Vivian Davis Figures. Her son has testified that he was paddled by Mr. Thomas, and Sen. Figures has testified that she gave Mr. Thomas permission although she was not aware that her son was forced to drop his pants.
We hope that voters in Senate District 33 will focus on the records of the candidates, which speak for themselves.
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Volunteer lawyers: Attorneys can make impact with pro bono work – [Op-ed]
Fort Lauderdale Sun-Sentinel (Fla.)
March 01, 2010
Imagine the impact we could make if every attorney in the state of Florida took on one pro bono client.
That is the simple but powerful concept behind the One Campaign, a recent initiative launched by the Florida Bar. With a clear message: One Client. One Attorney. One Promise, the One Campaign aims to increase volunteer legal work by Florida's time-strapped attorneys.
While Florida Bar membership grows by about 2,500 attorneys a year, the amount of free legal work provided by them has stagnated. Florida Bar members are not required to do pro bono work but are required to report pro bono efforts.
One addresses attorneys' concerns about not having enough time by simplifying the message: help one client. Make one commitment to help one person with one problem. It won't take a lot of time but it will make a world of difference.
A study by Kelly Carmody & Associates in 2008 showed that only half of Florida's attorneys do pro bono work. Sixty-four percent of attorneys not doing pro bono cited a lack of time.
The Carmody Report reveals that for attorneys already providing pro bono legal services, their experiences are very positive. Many attorneys reported their pro bono work was so rewarding they decided to take on more cases because of the personal satisfaction they got from helping people. Others said the experience doing pro bono made them better lawyers.
At a time when Florida's unemployment reached 11.8 percent in December, with the state reeling from the largest month-over-month job losses in the nation, the need for legal help is more apparent than ever.
To aid in this effort, The Florida Bar Foundation provided $800,000 in grants to legal services agencies, pro bono organizations, and legal aid providers for development of training, mentoring, and other support programs for volunteer attorneys.
One newly funded program through the Broward Lawyers Care program is NEXT. It aims to build relationships between Broward's young attorneys and the local legal aid programs through use of social media.
Statewide, many young attorneys are leading the charge. The Young Lawyers Division, The Bar's Public Interest Law Section, and Florida's Children First are promoting Justice for Florida's Youth at LAST (Lawyers Assisting in Successful Transition), a program recruiting attorneys to assist the 2,500 children, aged 16 and 17 who are aging out of foster care. Many will "age out" with no permanent family yet few have legal support as critical decisions are being made. LAST gives lawyers the opportunity to help these youth successfully transition to adulthood.
Whether representing a youth coming out of the foster care system or assisting an elderly couple stave off foreclosure lawyers are the only ones who possess the unique skills required to help regular citizens navigate the law.
The charge is straight forward. Take on one case where you can utilize your unique skills to help someone in need. If every practicing attorney answered that call the combined effort could drastically reduce the enormous backlog of cases and significantly improve access to justice for all Florida residents.
It doesn't take a lot of time to change the world, it just takes One.
Broward Lawyers Care is holding a Kick-off of the One Campaign on March 19 with the Broward Bar Association and I hope to see a large number of local lawyers in attendance.
More information about the One Campaign is available online at http://www.onepromiseflorida.org.
Jesse H. Diner is president of the Florida Bar.
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Finding ways to speed justice – [Editorial]
By John S. Peck, The Huntsville Times
March 03, 2010
HUNTSVILLE, Ala. _ Justice delayed is justice denied.
That fundamental principle of our judicial system is at peril in Madison County and elsewhere across Alabama as judges get saddled with growing caseloads.
The tight economy has limited the state's ability to create new judgeships. So with a growing population and, consequently, more criminal and civil filings, some cases can linger a couple of years before being heard.
Alabama Chief Justice Sue Bell Cobb is spearheading a county-by-county assessment of caseloads to shift resources where needed. Madison County Circuit Judge Billy Bell has been tapped by Cobb to serve on her Realignment of Judicial Resources Committee.
Finding efficiencies is prudent from both a cost standpoint and in assuring accused criminals, their victims and civil litigants get their day in court in a timely manner.
The panel wants to study the imbalance of caseloads and recommend ways to spread the work. Solutions could include shifting judgeship positions in smaller caseload circuits when they become vacant, to eliminating the distinction between circuit and district judges so they have equal jurisdiction over cases.
Circuit judges handle mostly felony criminal cases, divorces and civil cases worth at least $10,000. District judges have caseloads that include misdemeanor criminal cases and preliminary hearings, juvenile cases, small claims and traffic cases and civil cases on matters involving less than $10,000.
Bell said a 2007 caseload report found that of 143 circuit judges in Alabama, 54 had caseloads that were above average, including all six in Madison County.
Madison County's six circuit judges faced 16,749 case filings in 2009, an average of 2,791 each. The local district's four judges faced 50,884 filings last year, an average of 12,721.
The average caseload for circuit judges in Alabama has been about 1,200 cases.
Some relief is on the way for Madison County beginning in 2011. A seventh circuit court judge will be elected in November, and Madison County has agreed to fund the position the first year.
The judge will be expected to hear only criminal cases the first year with a goal toward reducing the backlog and getting defendants now in county jail awaiting trial through the system.
The committee hopes to have its recommendations ready by July and proposed legislation ready for 2001. Some ideas may require statewide voter approval.
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How the courts can function better – [Editorial]
March 01, 2010
REORGANIZING CIRCUIT and districts courts to increase efficiency statewide responds to growth patterns and economic conditions.
Baldwin County Presiding Circuit Judge James Reid is leading the Realignment of Judicial Resources Committee, and he is well aware of the impact of population growth
on the Baldwin court system. The committee was created by Alabama Supreme Court Justice Sue Bell Cobb.
Two major changes being considered are a consolidation of circuit and district courts, and allowing the Supreme Court to move open seats to circuits that need them.
Moving judges’ seats around is likely to create some political waves, and giving that power to the Supreme Court rather than the Legislature may not fly with a governing body reluctant to give up control over even the most local and minor of matters. But the idea is to evenly spread the caseload.
A report by Judge Reid says some district judges’ caseloads are up to five times larger than other judges, and some circuit judges have triple the caseloads of others.
When people with pending criminal or civil cases have to wait longer in some counties than in others, Alabama justice is neither even-handed nor swift. Supreme Court justices could act more quickly and with much more expertise to shift positions as needed. No sitting judge would be moved; the seat would be shifted only when a vacancy occurred.
Chief Justice Cobb says that creating a new judgeship costs about $400,000. With the state funding crunch, the best use of taxpayer dollars is to instead move a judgeship from a circuit that may not be busy to one where caseloads are burdensome.
However, consolidating district and circuit judgeships may prove less effective.
While such a move might spread the caseload more equitably, district court cases are generally less complicated and carry less severe criminal or civil consequences. The two types of caseloads are not necessarily comparable, and assigning them in such a way that any judge might draw a broader range of cases could make each judge less efficient with his or her docket.
Regardless, the overall review of the circuit and district court system is warranted to meet the challenges of population shifts and tough economic times.
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Some Jefferson County judges to be assigned to business disputes
By Erin Stock, The Birmingham News
March 01, 2010
Alabama court officials are trying out a new way to handle business disputes, and Jefferson County has set up the test case.
Complex and often time-consuming business claims filed in the Birmingham circuit court division now are being routed to one or two particular judges. The specialized court docket is aimed at creating consistency in how the cases are managed and decided, and ultimately it could speed along what are often lengthy disputes, judges, lawyers and business people said.
"With this docket, we're set up to move these complex litigation cases through the system quickly -- or at least more quickly," said Drew Sinor, a Birmingham lawyer who sat on the committee that researched the idea. "Because of the judges' familiarity with the concepts, the case can move faster because you're not starting from ground zero to educate them."
That's significant when a lawsuit involves hundreds of thousands of documents and sworn testimony from 20 to 30 individuals, said Sinor, a lawyer with Hand Arendall who primarily handles commercial and construction litigation.
A committee of lawyers, business representatives and court officials in the county recommended testing the specialized court docket here after Chief Justice Sue Bell Cobb asked that a group look into the idea, said Scott Vowell, the presiding judge in Jefferson County. If successful, the model could be duplicated in state courts across Alabama. It's already being used, in some form, in 22 other states, according to the National Center for State Courts.
"We're going to see what the demand is for it in Birmingham," Vowell said. "In Birmingham, we have most of the complex business litigation in the state."
The types of cases that will be assigned to the "commercial litigation docket" include some antitrust, commercial class actions, trademark disputes and environmental claims. For a claim to end up on the docket, it must meet criteria laid out in an administrative order Vowell entered after getting input from the committee.
Circuit Judge Robert Vance is handling the docket, while Circuit Judge Joseph Boohaker will hear cases Vance can't. Two cases have landed on the docket so far, said Vance, who as a practicing lawyer dealt with some complex environmental disputes.
"The bread and butter for this docket would be disputes between companies, between businesses," he said.
Deborah Saunders, with the National Center for State Courts, said complex civil litigation can take up much of a judge's time and, as a result, backlog other cases.
"Anything that can help the docket move along is going to benefit everyone," said Saunders, a knowledge and information services analyst, "particularly in the current climate where states are experiencing cuts."
Jefferson County already operates some specialized courts, a trend in state courts across the country. There are courts for drug, domestic violence and mental health cases.
One potential downside to the business docket is that it could set up a mechanism for judge shopping, landing before a judge of one's choosing. But Vowell said checks are in place: When a new lawsuit is filed with a request for the business docket, the presiding judge decides whether it meets the criteria. And if another judge has already been randomly assigned the case, that judge can consider whether to send it to the presiding judge for consideration on the business docket.
Dudley Reynolds, president of Alagasco and one of the people who served on the docket committee, said similar business dockets and courts have been tested elsewhere with positive results.
"It's a very reasonable first step to see if this concept is acceptable to the litigants and the judges over there," Reynolds said of the pilot program.