Tag Archives: judges

Is a Fourth Branch in the horizon?

The Washington Post has a very interesting article, which highlights the increased deferment of cases to government agencies.  Instead of going through the court system, many cases are increasingly going through administrative agencies instead.

The question posed here is whether the right for court accessibility being challenged?  The Washington Post raises its concerns:

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is just not bigger, it is dangerously off kilter.  Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

The Washington Post reports that the vast majority of laws governing the United States are not passed by Congress but are issued as regulations.  A study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

The Washington Post also reports that a citizen is 10 times more likely to be tried by an agency instead of an actual court.  While federal judges conduct roughly 95,000 adjudicatory proceedings (including trials), federal agencies complete more than 939,000.

However, there are several items the Washington Post fails to mention.  The increasingly use of administrative agencies does not only fall upon the agency.

Take for example the individual’s decision to file a charge/claim.  Going through administrative agencies is more cost-effective.  Lawsuits in court have become more expensive.  Technology, electronic evidence, growth in documents and companies, among others, lead to a higher volume of issues and motions that increase the cost of litigation.  Given both alternatives, it makes sense that an individual might choose to go through an administrative agency.

For example, an individual going through the EEOC for a discrimination charge does not have to pay anything.  While an individual going through the court system may have to pay attorney fees and might be responsible for attorney fees.

 

 

Saying that, however, the issue of transparency and timing is highly concerning.  Administrative decisions are not public.  In addition, the length of an administrative decision might take several years.

via The rise of the fourth branch of government – The Washington Post.

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Filed under civil rights, courts, District Court, federal, Judges, Pending Legislation, regulations

The Sedona Conference Publishes Primer on Social Media

This post is geared towards lawyers and individuals working with electronic discovery (or anyone interested in discovery in a lawsuit of social media).

The Sedona Conference just published a Primer on Social Media.  The current version is open for public comments.  The purpose of the Primer is to provide primary instruction to the bar and the bench.

via The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) : Electronic Discovery Law.

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AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws

In a letter Thursday to three federal appeals court judges, U.S. Attorney General Eric Holder has reiterated what he calls “the long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation.”

Although the judicial branch, appropriately, often opts to defer to the judgment of Congress, it nonetheless has the power to strike laws that it determines to be unconstitutional, Holder writes. His unusual letter was requested by the New Orleans-based 5th U.S. Circuit Court of Appeals panel on Tuesday after President Barack Obama suggested that a U.S. Supreme Court ruling against the administration’s position in a pending case over the constitutionality of his health care reform law would constitute extraordinary “judicial activism.”

Think Progress provides a link to the AG’s missive (PDF).

“While duly recognizing the courts’ authority to engage in judicial review,” Holder wrote, “the executive branch has often urged courts to respect the legislative judgments of Congress.” Tuesday’s remarks by President Obama, he concludes, “were fully consistent with the principles described herein.”

via AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws, Backs Obama – News – ABA Journal.

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8th Circuit upholds judicial campaign restrictions

The Eighth Circuit in Wetsal v. Sexton, No. 09-1578, ruled en banc that the Minnesota Code of Judicial Conduct clauses for endorsement, personal solicitation, and solicitation for a political organization or candidate do not violate the First Amendment.

Under strict scrutiny, the State bore the burden of proof that the endorsement and solicitation clauses advance a compelling state interest and that it is narrowly tailored to serve that interest.

Minnesota argued that it had a compelling interest in maintaining judicial impartiality and in maintaining the appearance of judicial impartiality.  The Eighth Circuit agreed.  “[W]e easily conclude Minnesota’s interest in preserving the appearance of impartiality is compelling, particularly when cast against other interests courts have recognized as compelling.”

The Eighth Circuit also held that the judicial campaign restrictions were narrowly tailored.  The Court explained that the endorsement clause is narrowly tailored since it restricts speech for or against particular parties, rather than for or against particular issues.  The court explains its concern as follows,

Under either framework, a judge “who tips the outcome of a close election in a politician’s favor would necessarily be a powerful political actor, and thus call into question the impartiality of the court.”

The Court held the solicitation clause is also narrowly tailored.  The Court first distinguished itself from Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (en banc), which dealt with large group solicitation and signature bans; as opposed to Wersal, which dealt with personal solicitation.  With a personal solicitation, “[a] contribution given directly to a judge, in response to a judge’s personal solicitation of that contribution, carries with it both a greater potential for a quid pro quo and a greater appearance of a quid pro than a contribution given to the judge’s campaign committee at the request of someone other than the judge, or in response to a mass mailing sent above the judge’s signature.”  Quoting Siefert v. Alexander, 608 F.3d 974, 989 (7th Cir. 2010).  The Court also concluded that because recusal would not be a workable remedy to prevent bias or the appearance of bias from personal solicitations, the solicitation clause is narrowly tailored.

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Filed under Appellate, courts, Judges, legal decision, Minnesota

Hennepin County Finalists for Judges

Gov. Mark Dayton announced the three finalists for two open judge spots in Hennepin County.

The three names forwarded by the Commission on Judicial Selection are:

Nancy Brasel: Brasel is currently an Assistant U.S. Attorney for the Department of Justice in Minneapolis, where she handles cases related to economic crime, narcotics, and firearms. Previously, she was a partner at Greene Espel PLLP conducting cases related to business and employment litigation matters. Brasel is a former Chair of the Board of Directors of the Domestic Abuse Project. She has also served on the Board of Directors of Minnesota Women Lawyers.

Phil Carruthers: Carruthers is the Director of the Civil Division at the Ramsey County Attorney’s office where he represents several departments including the Charter Commission and Budgeting & Accounting. He served as the Speaker of the Minnesota House of Representatives while maintaining a private law practice. He was a board member of Project Remand, the president of the North Hennepin Mediation Program and treasurer of the Brooklyn Historical Society.

Elizabeth Cutter: Cutter is a senior assistant Hennepin County Attorney where she is responsible for supervising felony domestic violence prosecution. She previously served as a special assistant attorney general for the Minnesota Attorney General’s office. Cutter is the outgoing president of Minnesota Women Lawyers and is a member of the enrollee appeals panel for Minnesota Comprehensive Health Association.

via Dayton has three names to fill two spots in Hennepin County – MinnLawyer Blog.

 

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New Publication, Web Page Shed Light on Process of Becoming a Judge | ACS

ACS and seven other legal groups have launched a publication, “The Path to the Federal Bench,” intended to help demystify the process and encourage people from diverse backgrounds to pursue federal judgeships. The booklet includes tips on everything from assessing your candidacy to navigating the increasingly difficult nomination and confirmation process, and features the stories of several judges.

This coalition of groups has already held a number of panel discussions around the country about the process of pursuing judgeships, and video of some of those events, as well as a short one-on-one interview with U.S. Court of Appeals for the Fourth Circuit Judge Andre M. Davis, is available at a new ACS web page focused on the path to the bench.

via New Publication, Web Page Shed Light on Process of Becoming a Judge | ACS.

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