Thursday, November 22, 2007


I have not posted this week so far because I am on vacation. But I wanted to wish everyone a Happy Thanksgiving. This year I feel especially blessed and appreciative of my live.

My list is long but the big highlights include: graduating from law school, passing the bar, getting a great legal job in Utah, having a terrific internship in DC, meeting helpful and smart attorneys in Washington, having a week off to visit with my in-laws in Virginia, and receiving great health insurance through the state government.

So hopefully you are not reading this today but if you want a break from family, put in the comments what you are thankful for.

Monday, November 19, 2007

why the judiciary must be kept separate

Or, why State Senator Chris Buttars has no idea what he is talking about...again

Well to be fair, one of the two bad ideas I am going to discuss here is proposed by AG Mark Shurtleff, but it is something Buttars supports I am sure. So let's go first into Buttars' "idea"
It's a job that has been overseen solely by the courts for two decades.
But now a task force headed by Sen. Chris Buttars wants a new, independent commission to evaluate how Utah's judges are performing and let voters know about it.
"I don't think judges should judge the judges," Buttars said Friday.
Members of a proposed, politically neutral 13-member commission would be equally chosen by the executive, legislative and judicial branches of government. Sitting judges and legislators would not be eligible.
So we will have a state commission, made up of (most likely) ex-legislators like Greg Curtis (I expect that he will be gone next year, either by his choice or by the voters' choice) ENDORSING judges? That would lead to cronyism, with judicial candidates being working to stick closer to the panel wishes than to the dictates of the LAW. We already have a electorally moribund branch--its called the legislature. We don't need another group who allegiances are questionable.

The original purpose of Buttars' task force that came up with this cockamamie scheme was, according to Stephen Hunt "was supposed to study how to improve an information pamphlet sent to voters asked to keep or reject judges appointed by the governor." The packet currently shows what proportion of attorneys approve of a judge. Sure, the information could be more helpful. It could break down the voting by criminal defense attorneys, prosecutors, insurance company defense attorneys, personal injury attorneys, etc. That way, an average voter could see which side finds a judge more favorable to their clients. Rather than endorsing a judge, such a system would truly provide the voter with more information. And when say both prosecutors and defense attorneys agreed that a judge was bad--like Leslie Lewis--the voters would dismiss such a judge. But what the pamphlet has to do with creating a governmental endorsement system I don't know.

And the proposal for the panel will lead to uninformed and ideologically based recommendations take a look at what the make up would be and the grading system.
Currently, judges must score at least 70 percent on 75 percent of the survey questions for a favorable rating.
The task force is considering a 1-to-5 scale for survey questions pertaining to a judge's abilities, and a yes/no question as to whether a respondent recommends that the judge be retained.
The task force has also suggested litigants be asked to participate in surveys about the judge on their case, in addition to witnesses who have testified in cases before a judge and court staff who have worked with a judge.
* Four members appointed by the chief justice of the Utah Supreme Court.
* Four by the governor.
* Two each by the president of the Senate president and the speaker of the House of Representatives.
* The executive director of the Commission on Criminal and Juvenile Justice.
* No more than half can be from the same political party or attorneys by profession.
So we have 8 picks made by conservative Republicans, 4 by the Chief Justice, and a pro-prosecution executive director. Do we have any doubt that the number of judges willing to throw out some prosecutor's cases will go down?

It is not politically popular to defend those accused of crimes, but the more their rights decrease the more the rest of our rights and protections decrease. Which brings me to politically driven suggested legal change number two.
The Utah Constitution description of individuals' rights against unreasonable searches and seizures is almost identical to the wording of the Fourth Amendment, but federal and state judicial interpretation over the reason evidence can be excluded from trial differ. Exclusionary rules, also different at the state and federal levels, allow defense attorneys to argue to block evidence from being used in court if there is proof the evidence was improperly collected.

Shurtleff's proposal, discussed by the Constitutional Revision Commission Thursday, would add language to the state constitution saying an individual's rights related to search and seizure would follow the interpretation of the U.S. Supreme Court and that evidence gathered in violation of an individual's rights shall only be excluded in a state proceeding if it would be excluded based on U.S. Supreme Court decisions.
Essentially, Shurtleff wants to get rid of Utah's search and seizure provision of its constitution (Article 1 section 14). Before I go into why this is not a good idea, let's discuss why the is a separate set of analysis for the Utah Constitution and that has given more protections to Utahns than the federal constitution has been interpreted.

During the Territorial/Pioneer days of the state, Utahns were besieged by raids by federal marshals. The Deseret News at the time called these home invasions as "outrages," "carried out without even a warrant giving the perpetrators the authority [to search]." Tracey E. Panek, Search and Seizure in Utah: Recounting the Antipolygamy Raids, 62 Utah Historical Quarterly 316, 327 (1994). State v. DeBooy, 2000 UT 32, 996 P.2d 546, also went into this history when the court prohibited Utah police from conducting certain types of roadblocks where they questioned and searched drivers under the Utah Constitution.
This state's early settlers were themselves no strangers to the abuses of general warrants. Underlying the abuse of the general warrant was the perversion of the prosecutorial function from investigating known crimes to investigating individuals for the purpose of finding criminal behavior. A free society cannot tolerate such a practice.
Id. at P26.

Did you know, for example, that your bank records are exempt from the Fourth Amendment and are considered public information to the police? But not under Art. I Sec. 14, Utah's constitution deems those to be protected unless the police get a warrant. But Shurtleff and soon to be ex-Federal District Court Judge Paul G. Cassell want you to focus on the drug dealers who benefit from these additional privacy protections. Or say that it is hard on police officers to know what the Utah courts will do next, and confusing to them to hear one thing from the US Supreme Court and Utah Supreme Court. But guess what? Police officers aren't that stupid, and there are plenty of good attorneys that can help explain what they can and cannot do in the wake of a landmark decision.

Here's what former Chief Justice Michael Zimmerman thinks of Shurtleff's proposal:
if the intent is to remove the exclusionary rule it would be better to remove search and seizure language from the state constitution altogether than to add language. "That will do what the proposal attempts to do, but the proposal is not well written," he said. "Be honest about it. You're turning all of these issues over to the federal courts."
And who sits on the federal courts? Conservatives who have sought to chip away at the 4th Amendment. Color me unsurprised.

What people like Chris Buttars doesn't understand is that some day, the shoe could be on the other foot. Every "law and order" person has to realize that they too could become like Larry Craig, caught up with police and the criminal justice system...their private life made very public. And by that time, Article 1 Section 14 won't be there to protect them. Even worse, they have protections legally, but the hack judges the panel endorsed go after them to appease the types that sit on the panel.

This is why like religion, the judiciary should be kept separate from the political branches of the government. I guess they just don't teach civics anymore (or folks like Buttars doesn't care for civics).