News - Scott Key & Associates

If We Eliminated Social Media, We Could Read 200 Books Per Year

February 13, 2017/by J. Scott Key

I just e-filed an appellate brief. Current time is 9:38 p.m. Yes, it was one of those days. Yes, I need a shower. And, yes, it will take a while to come down from this coffee. But I want to keep a commitment I made to myself to blog every weekday. And here is what I have.

During breaks for lunch and dinner today, I listened to a little bit of the podcast, This Week in Tech. At about minute 33:00, Mike Elgan claims that if you quit social media, you would for yourself enough time to read approximately 200 books per year. I wondered where he was getting this claim, and I found the reference. The opening of the piece struck me:

Somebody once asked Warren Buffett about his secret to success. Buffett pointed to a stack of books and said,

Read 500 pages like this every day. That’s how knowledge works. It builds up, like compound interest. All of you can do it, but I guarantee not many of you will…

The average American spends 608 hours on social media and 1642 hours on television. It would take about 417 hours to knock out 200 50,000-word books. The 417 hours of book reading would likely be more valuable than spending those 417 hours on social media.

How does Mike Elgan get his news? He subscribes to a right-leaning publication and a left-leaning publication. Then he takes what he learns from reading long-form journalism and shares it to others on social media. He is a producer and not a consumer on social media. He is not at risk to get taken in by fake news.

For today, I was in my basement home office finishing up an appellate brief. So I neither watched television, consumed social media, nor read any books. I read statutes, caselaw, transcripts, and my own writing until my eyes went all blurry. Tomorrow, I have a good book waiting.

Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban

February 9, 2017/by J. Scott Key

Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.

Background

On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.

Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”

The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.

Standing

The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.

Reviewabiliy

The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.

Factors

The Court applied a four-part test to the government’s appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.

Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.

In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.

Next Steps

The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.

Trump Administrative Order on Travel Likely to Withstand Legal Challenge

February 6, 2017/by J. Scott Key

Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order. The administration has appealed and that case is moving forward on an accelerated briefing schedule in the Ninth Circuit. On the East Coast, the United States District Court for the District of Massachusetts has refused to grant a stay of the Executive Order’s enforcement, reasoning that the immigrants are not likely to prevail on the merits.

The issue in the case is how to draw the line between executive power under Article II versus the First Amendment’s protection against the establishment of a religion. Article II vests in the president wide latitude in conducting foreign affairs and in regulating immigration into the country.

Issues to Consider

To what extent may we look beyond the text of the executive order? The text mentions nothing about banning immigrants on the basis of religion. Here’s the relevant text:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

The President has made some statements about a potential preference for Christians seeking to enter the United States to escape persecution. But I am unclear on the extent to which the courts are allowed to look to such statements versus the language of the order.
Even if the restriction is wholly or partially based in religion, is there a First-Amendment violation? May religion be a factor in immigration decisions? It’s a murkier question than it might appear on its face. May the government weigh a person’s religion as a factor in determining the extent to which the person poses a threat to safety? The question would turn on whether doing so “establishes” a religion. For instance, let’s imagine a hypothetical religion. Suppose there was a sect of people who believed that the true God countenanced no secular leaders and that it was the sacred duty of a follower of that religion to overthrow any secular governmental figures. In other words, the central religious tenets of our hypothetical religion included a duty to war against the idea of government. Would it be a violation of the First Amendment to bar adherents to that religion from entering the country? The answer would appear to be no.

If I were to place a bet on the outcome of this litigation, I would bet on the administration. Beyond the Constitution, Congress has vested the President with broad power over immigration. Adam Liptak writes:

A key part of immigration law does give the president broad power. It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

But another part of the law forbids discrimination “because of the person’s race, sex, nationality, place of birth or place of residence,” but only “in the issuance of an immigrant visa.” The Trump administration argues that the power to bar entry, the subject of the first law, is broader than the limits on issuing visas.

I make no editorial comment upon the wisdom of the president’s immigration decisions. Rather, in terms of the law, he likely stands on a solid footing with respect to current legal challenges to the Order.

How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

February 2, 2017/by J. Scott Key

At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.

Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).

The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.

Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:

First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me headaches.
He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.

In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule. ~~Prosecutors~~ Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.

The Sane Branch of Government

January 30, 2017/by J. Scott Key

We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to come.

Our President reveres President Andrew Jackson. Andrew Jackson is perhaps best known for defying a court order so that he could could deport people in massive scale. In response to the United States Supreme Court’s ruling in Worcester v. Georgia, President Jackson said “John Marshal has made his decision, now let him enforce it.” That case was also an injunction case. Six years after the ruling in Worcester, the Cherokee were forcibly relocated to Oklahoma in what was one of the darkest moments in American history. The parallels between then and now and between the historic president and the modern one who reveres him are clear.

But I have faith in the judiciary and in the rule of law. Just this weekend, teams of volunteer lawyers showed up at airports around the nation to lend a hand to those left stranded by a bewildering executive order. They turned airport cafes into law offices and e-filed petitions for habeas relief. Lawyers visited with the families of those victimized by recent executive action. And courageous judges stepped up as well. One such judge was Ann M. Donnelly of the Eastern District of New York. Those who know her describe her as one who “will not be perturbed by the storm around her” and as one with “a firm moral compass.”

I can think of no time in our history when lawyers and the judicial branch are more critical to the survival of our Republic. Our nation is still young, and America is still very much an experiment. Lawyers like those who stepped up over the weekend and judges like Ann Donnelly provide hope. But the power of the judiciary and of our constitution is only as strong as the American people and our belief in the rule of law and our founding principles.

Should Defendant Be Required to Prove Actual Innocence After Reversing a Conviction?

January 9, 2017/by J. Scott Key

The oral argument transcript is now available on Nelson v. Colorado. the audio should be available later this week. This case challenges the constitutionality of Colorado’s Exoneration Act on procedural due process grounds. The two petitioners in the case were each convicted of crimes. While incarcerated, the State of Colorado took fine money from their prison accounts. One was retried and acquitted. Another will not be tried again. After their convictions were reversed, each filed motions on the criminal case demanding that their money be returned to them.

The State of Colorado said that the money could not be returned because the defendant failed to file a civil claim for the return of money under the Exoneration Act. Under that act, the defendants would have been required to file suit and prove actual innocence in order to have their fine money refunded to them. For each, the amount of money paid was so small that it would have been eaten up by attorney’s fees.

Petitioners argued that the Act was a violation of procedural due process because the hurdles to a refund were ridiculously onerous. The State of Colorado argues that the Act comports with Due Process because there is a judicial process for the refund of money.

One should never read too much in to oral argument, but it appears that the petitioners fared well. Adam Liptak has more here. Oyez has more here. And the SCOTUS Blog’s coverage is here.

First Mondays is My Favorite New Podcast

January 9, 2017/by J. Scott Key

I’ve been hearing about First Mondays for quite some time. First Mondays is a podcast covering the United States Supreme Court. They record each week that the Court is in session. The co-hosts are both former SCOTUS clerks. I’ve only listened to one episode, the one for this week. But I’ve subscribed will become a regular listener.

As an appellate lawyer, I like the way the hosts anaylze briefs on cases to be argued and give their opinion about what made the question presented good. They go “inside baseball” enough to help me improve as a practitioner. I also like the coverage. It can be difficult to keep up with the docket, and this podcast will help me stay current without getting bogged down.

But this is also a podcast that I’d recommend for a non-lawyer who is interested in the Court and cases on the docket. The podcast is accessible for a non-lawyer. In today’s episodes, for instance, the hosts quizzed each other on questions presented from famous cases. The trick was that they used words from among the 1,000 most common words in the English language.

I will be taking this podcast with me on future commutes and runs.

Best Argument For And Against Recording in the Courtroom

December 31, 2016/by J. Scott Key

Georgia superior court judges have pursued some polarizing changes to the way they are regulated. Now, they want to impose strict restrictions on the public’ ability to record what happens in open court. On January 17, 2017, they will begin considering a new superior court rule that will give Georgia judges unprecedented control over their courtrooms. I have never been a superior court judge and don’t feel qualified to know the ins and outs. Judges have done a great job of getting their way with the legislature, and they have put in a sustained effort to clamp down on attempts to record what they do in the courtroom. So, it may not matter what critics or the public think.

Judges say that their position is credible because they like to have power over the people who come before them, whether parties, their lawyers, jurors, reporters, or spectators who want to come in and watch what happens. And judges have the ear of powerful legislatures, as a recent episode of This American Life demonstrates. Georgia jurists did not like the idea of an ethics committee telling them how to run their courtroom. So, they convinced some friends in the legislature to put the ethics committee under the legislature’s control.

Now, they are pushing new revisions to rule 22. This rule would give judges the power to hold in contempt a spectator in a courtroom who turns on a recording device (for instance, just about any smartphone). Even if the recording process is not disruptive, a spectator who records a judge, if the rule is enacted, could be summarily jailed:

(3) Spectators: All spectators while in a courtroom must turn the power off to any recording device while present in a courtroom. No use of any recording device is permitted unless authorized by the Court.

There are all sorts of arcane rules for spectators or attorneys to ask to use recording devices in the courtroom. And judges have great discretion to say “no,” upon such vague ideas that the act of recording would be “undignified.”

Critics claim that the rule is essentially a power grab. They are suspicious that judges are going to such lengths to shut down efforts to record what happens in their courtrooms. They reason that if judge have nothing to hide, why would they care if proceedings are recorded? These critics believe that there are some fairly ridiculous problems within the rule. For instance, spectators absolutely must power off recording devices in the courtroom. And they can only record upon proper request if they somehow learn how to make a proper request.

Critics think that this new rule is a thinly veiled attempt to prevent judges from getting caught doing things they should not do, such as the Cobb County Judge who was caught engaging in conversation with prosecutors about criminal cases while the defendants’ lawyers were not present. In fact, the superior court is harshest on attempts to record in a courtroom while court is not in session — exactly the setting for the Cobb County judge’s misdeed.

The rule is friendlier to parties or attorneys who want to record. But critics of the proposed rule would point out that parties and attorneys are least likely to rock the boat by asking to do so. They want to stay in the judge’s good graces because the judge will either decide the case, will decide what evidence the jury gets to hear, or will decide how long somebody goes off to prison. A spectator, on the other hand, has no dog in the fight. A spectator is not out to impress the judge and could care less if the judge is angry at her. And, wouldn’t you know it, spectators would be most restricted from recording if the rules passes.

Judges just think that that the critics of the rule are trying to interfere with their courtrooms. They’re the judge, so we should trust them with maximum control.

Personally, because I have to practice in front of these judges, I endorse the proposed rule change. But I note that many people are appalled by it. And many critics find it ironic that judges attacked the JQC because they claim it sanctioned judges in a Star Chamber environment. But for the people who appear in front of those judges, the Star Chamber is just fine, thank you very much.

A Death Sentence for Want of a Lawyer

December 5, 2016/by J. Scott Key

In today’s New York Times, former Chief Justice Norman Fletcher has written an editorial denouncing the upcoming execution of the Georgia inmate sentenced to death in 1990. Chief Justice Fletcher is particularly concerned about the fact that the inmate lost out on the possible federal review of this case. The inmate, while representing himself, missed the deadline for federal habeas corpus by eight days. Georgia is one of the states that fails to recognize the right to counsel after the direct appeal, even on sentences of death.

For Chief Justice Fletcher, the tragedy is even worse because there were potential issues of merit in the habeas corpus.

Justice Fletcher sheds light on not only a troubling issue in death penalty cases in Georgia. He also discusses the fact that there is no right to counsel at the habeas corpus stage in spite of the fact that habeas corpus is a complex process that is confusing even to attorneys. In Georgia, the defendant must raise ineffective assistance of counsel at the motion for new trial phase if new counsel is appointed to the case or if the defendant is pro se on his direct appeal. In the event that the same lawyer who handles the appeal also handled the trial, then ineffective assistance of counsel is relegated to the habeas corpus stage, where the inmate does not have the right to counsel.

Georgia should have a regime in place and allows a person under the sentence of death to have the right to counsel at every stage of the proceedings. And there should be a process where a court could appoint counsel on potentially meritorious habeas corpus cases.. The judge could act as a clearinghouse for those cases where an appointed attorney could be of assistance (similar to what exists in the federal system). Right now, where inmates cannot afford counsel, habeas corpus petitioners either must go it alone or rely upon a volunteer lawyer. When no volunteer lawyer is available, then a person with potentially meritorious issues could be literally killed for want of a lawyer.

As the legislature considers criminal justice reform, the right to counsel in at least some habeas cases is worth a look.

Final Thoughts on JQC Amendment 3

November 11, 2016/by J. Scott Key

I am not surprised that Amendment 3 passed. It was a bad idea with an unsavory political history. I did not personally know any lawyers who were in love with it. And my non-lawyer friends who asked me about it seemed persuaded that it was a bad idea. But, alas, I don’t know millions of people. I put it out there on Facebook. But Facebook is a solipsistic medium. I think my musings on Amendment 3 got a lot of amens but changed few minds.

The agency that governs judicial behavior ought to be independent from the legislature. It should be concerned with the neutral and dispassionate application of the judicial canons to judicial action. The JQC had its problems. It operated in extreme secrecy and its tactics were occasionally bullying. It was not a perfect agency. But there were less intrusive fixes out there than then one chosen.

So, what is the future of judicial ethics? There is work to be done in the legislature to make sure that the mechanism is as effective as possible. I’ve said before that the State Bar can regulate the behavior of its members, whether they be engaged in the practice of law or the practice of judging. But the Bar appears to be politically compromised on all of this.

Ultimately judges are elected officials. And if they act in a way that is unbecoming of the bench, it is up to the people to regulate their behavior. And if the legislature, with its new powers, does a bad job with the JQC, the people choose them, also. What I say here feels like a cop out and perhaps a bit Pollyanna. From my experience, many educated non-lawyers have little idea what judges do or how it all works. I cannot count the people I have known socially who have asked the classic cocktail party questions about my job — “how do you do this for a living?” “What would you do if someone you were representing were actually guilty?” You know the other questions. But I have also had the experience of those same people coming to be clients or parents of clients of mine. And when they are in the system, going to calendar calls, preliminary hearings, motions, and trials, they are appalled at the experience. I do not know how to package up that life experience and communicate it to folks who may never know a courtroom firsthand. So, incumbent judges, even bad ones, are re-elected. And a Constitutional Amendment like 3 passes because it is written in a way that a voter in the ballot box thinks that it is a good idea.

Alexis de Tocqueville’s most famous line is that “in a democracy the people get the government they deserve.” Voters often get things right, as do juries and judges. But we are only as good as the information that we have. And when it comes to courts, the most informed appear to be the ones who are initiated either by being lawyers, serving on juries, or being actually indicted. How to inform others? I really don’t know.