Seven years after the U.S. Supreme Court held federal sentencing guidelines are only advisory and not mandatory, some in Congress are pushing to make sentencing uniform through mandatory prison terms. This piece from NPR.org provides an interesting discussion of the issue and highlights the disparity among sentences under the current system.
Tom Appeals Blog
News and Observations About Law and Society
"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein
Massachusetts Supreme Judicial Court Holds Children Have Right to Counsel in Some Parental Termination Cases
In Adoption of Meaghan, SJC-10915 (Mass. Jan. 30, 2012), the Massachusetts Supreme Judicial Court determined that children have a right to counsel in private, contested adoption proceedings. “The decision whether or not to terminate is of enormous consequence to the child. The child cannot have a meaningful opportunity to be heard in a contested proceeding without the assistance of counsel, regardless whether the case is initiated by the department or other agency or by a private party.” Those interested in the opinion can link to it through THIS website.
Stakeholders in Florida have debated for years which model of legal representation best serves the rights and interests of children and youth. This Massachusetts decision will likely cause reverberations statewide for several years to come.
E-Filing in Florida is (Almost) Imminent
In today’s meeting of The Florida Bar’s Appellate Court Rules Committee, I learned an aggressive schedule has been proposed for the implementation of electronic filing in Florida courts. The schedule includes target dates for “voluntary” electronic filing and “mandatory” electronic filing. NOTE: The schedule is a proposal only at this point. Still, lawyers need to begin preparing their offices for electronic filing and the receipt of documents via electronic service. The proposed schedule is as follows:
July 1, 2012: Voluntary e-filing available in all civil divisions (except juvenile) in all counties and appellate courts
October 1, 2012: Mandatory e-filing in all Florida appellate courts
January 1, 2013: Voluntary e-filing available in criminal and juvenile matters in all counties
April 1, 2013: Mandatory e-filing in all civil divisions (except juvenile) in all counties
October 1, 2013: Mandatory e-filing in criminal and juvenile matters in all counties
In related news, a separate rule authorizing or requiring service of documents (whether filed or not) is pending.
Judge Wesley Brown Dies at Age 104
Wesley Brown, the oldest sitting federal judge in history, has died. His fascinating story as a jurist is summarized in his obituary. I never had a case in front of Judge Brown, but I saw him in the federal courthouse in Wichita several times during the 1990s while attending hearings and trials in front of other federal judges. Federal courts were more relaxed in those days. Just as I have fond memories of my experiences in the federal court for the District of Kansas, I treasure the stories told about Judge Brown. We should all aspire to be such diligent workers and faithful public servants.
Boutique Law Firms Challenge the Billable Hour
This article from the ABA Journal discusses strategies law firms are using to address the downsides of the billable hour. Some firms resort to discounts, while more nimble firms offer clever alternatives, such as flat fees by the matter or segment of representation. Although clients generally get what they pay for, clients who ask for a degree of certainty in terms of the attorney’s fees they are about to incur are not unreasonable. After all, clients have budgets, too. Bottom line: In order for legal services to be accessible to ordinary people, attorneys and clients should work collaboratively to create a fee structure providing the assurance clients need while allowing the attorneys to earn a reasonable fee.
Attachment of GPS Device Equals Search
Today, in the case of United States v. Jones, — U.S. —, No. 10-1259 (Jan. 23, 2012), the Supreme Court of the United States unanimously decided that the attachment of a GPS device to a vehicle, and the use of the GPS device to monitor the vehicle’s movements, constitute a search under the Fourth Amendment of the United States Constitution. Thus, a search warrant was required, and the Court affirmed the U.S. Court of Appeals for the District of Columbia Circuit, which had ruled admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. The Court refused to consider an alternative argument—”that if the attachment and use of the device was a search, it was a reasonable one—” because it was not raised in the lower courts.
The facts in Jones revealed that the government obtained a search warrant permitting it to install a GPS device, but the warrant authorized installation only in the District of Columbia and within 10 days. Government agents instead installed the device on the 11th day and in Maryland.
US Supreme Court Issues Guidance to District Court in Texas Electoral Map Controvery
Folks watching challenges to recently redrawn state electoral maps may be interested in this article summarizing today’s unanimous, unsigned order from the Supreme Court of the United States. The order requires a three judge district court in Texas to start its map-drawing exercise anew, this time giving due regard to those portions of the state’s proposed plan that do not reflect illegal considerations. The district court redrew the state’s electoral map after concluding Texas’s proposed map did not comply with the Voting Rights Act of 1965.
10th Circuit: Oklahoma Amendment Violates U.S. Constitution
The U.S. Court of Appeals for the Tenth Circuit has handed the State of Oklahoma its hat (again). This time, in Awad v. Ziriax, the court ruled that a state constitutional amendment barring consideration of international or Islamic law discriminates against religions. Although supporters argued the state amendment banned all religious laws and merely used Muslim laws as an example, the court ruled the argument contradicted the express language of the state constitutional amendment, which specifically referenced Sharia law in two places.
9-0 SCOTUS: Religion and Anti-Discrimination Employment Laws Don’t Mix
The United States Supreme Court issued three rulings today. In one of the more highly anticipated opinions, the justices unanimously agreed in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the First Amendment’s freedom of religion provisions encompass a “ministerial exception” to some anti-discrimination employment laws. Hosanna-Tabor involved a fourth grade teacher diagnosed with narcolepsy but cleared to work. Instead of returning the teacher to the classroom, the Lutheran school that employed her severed her employment. The teacher filed a claim with the EEOC under the Americans with Disabilities Act. The church school maintained that it could not be sued under federal employment laws because the religion clauses of the First Amendment to the U.S. Constitution shielded it from liability. The teacher argued her job was primarily secular in nature, as evidenced by the fact she was engaged in religious instruction only 45 minutes of the school day.
Chief Justice Roberts, who wrote the Court’s majority opinion, said the amount of time devoted to religious activities may be a consideration, but that the answer is not controlled by a stopwatch. Facts of significance to the outcome in Hosanna-Tabor were that the teacher had extensive religious training, had been formally commissioned, and was held out by the church as a minister. Thus, the “ministerial exception” is not necessarily limited to those at the head of a church or congregation. “We cannot accept the remarkable view that the [First Amendment's] Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers,” wrote the Chief Justice.
The opinion does not speak to all kinds of lawsuits, such as those involving claims for personal injuries, breach of contract, payment of wages, to name a few.
Justice Alito wrote a separate opinion and was joined by Justice Kagan. They emphasized the ministerial exception does not depend on the word “minister,” a concept that does not exist in some religions. Rather, the concurring justices said:
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religiousceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential tothe performance of these functions.The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.
Parties Sanctioned for Failure to Attend Appellate Mediation
The lesson to be learned from today’s opinion from Florida’s Fifth District Court of Appeal is simple: Do what the Court orders you to do.
In Carden & Associates, Inc. v. C.O.D. Trees Partnership, No. 5D11-2960 (Fla. 5th DCA Jan. 6, 2012), the Court applied a straightforward interpretation of Florida Rule of Appellate Procedure 9.720(a), which “provides that, unless changed by order of the court, a party is deemed to appear at a mediation conference if certain persons are physically present, including ‘the party or its representative,’ the party’s ‘counsel of record,’ and ‘a representative of the insurance carrier for an insured party.’” Neither of the appellants (the appealing parties) attended; instead, only their insurance company representative and attorney appeared. And no motion was filed requesting to excuse the parties’ personal appearance.
The Court said, “The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party’s place.” Accordingly, the Court awarded sanctions and required the parties to pay (1) all fees charged by the mediator in connection with this appellate mediation; and, (2) C.O.D.’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation and filing the instant motion for sanctions – all within 30 days.
Note to attorneys: This case is a good example of the danger inherent in considering the person with the purse your client rather than the person actually named in the lawsuit. Excusing or failing to require the client’s attendance at mediation may put you on the hook for the sanctions via a malpractice claim.
