Tuesday, April 23, 2013
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
Sunday, April 14, 2013
The Northern Illinois Law Review will host a symposium titled "Eavesdropping and Wiretapping in Illinois" on April 19, 2013. Here is the announcement, which includes links for times, location, registration and agenda, among other things.
Friday, April 12, 2013
Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation.
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.
Thursday, April 4, 2013
Charleston Law Review is hosting a symposium on April 15, 2013, titled "In Search of A 'Grand Unified Theory': Thirty Years with the Endorsement Test." Scheduled speakers include The Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme Court (ret.), who is slated to deliver the keynote address. For more, including a conference agenda and registration information, click here.
Tuesday, March 26, 2013
The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here). I am honored to be included among the speakers at this conference. I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon. I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel. Topics covered in the conference are:
- Pleanary Power - Supreme Court Deference to the Executive and Legislative Branches: Brief History of the Chinese Exclusion Cases;
- Fifth Circuit Practice Pointers - A View from the Bench;
- Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
- Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
- Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
- Sixth Amendment Right to Effective Assistance of Counsel;
- Fourth Amendment Search and Seizure in Immigration Proceedings;
- Restitution and Compensation for Victims of Human Trafficking in the United States; and
- Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.
Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation. I am honored to participate in the comprehensive and timely conference.
Tuesday, February 5, 2013
The Congressional Research Service issued an important report documenting that if the NLRB Noel Canning decision is correct, then over three hundred recess appointments since 1981 would be declared invalid. A copy of the report is available here and it is worth a read for those interested. NY Times commentary on this important issue is available here.
Mitchell H. Rubinstein
Monday, November 19, 2012
A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
Friday, October 26, 2012
In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest. Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).
In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law. Mother opposed the visitation. The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest. Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.
See also: Louisville Courier-Journal story here.
Saturday, October 6, 2012
Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Wednesday, September 26, 2012
The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge. The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).
TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail. Asgeirsson and other municipal officials challenged this penalty as violating free speech. The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction. The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague.
Wednesday, September 19, 2012
The case is Moss v. Spartanburg Cnty. Sch. Dist. Seven, ___F.3d____ (4th Cir. Jun. 28, 2012). The court held that a South Carolina school district policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).. The circuit court held that there was no religious entanglement problem as the school district’s policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.
Law review commentary on this important issue would be most welcome.
Mitchell H. Rubinstein
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Friday, August 31, 2012
When a condemning authority exercises its eminent domain power, the Federal and (usually) State Constitutinos require that authority pay fair market value to the property owner for the property taken at the time of taking. Fair market value is determined by the property's highest and best use of the property, and the property's current use is the presumed highest and best use. Courts may not include in the fair market value, however the value to the condemning authority, also known as special value to owner, or value-to-the-taker. The compensation should reflect what the landowner lost, not what the condemnor gained. Boston Chamber of Commerce v. City of Boston, 217 U.S. 189 (1910). This value-to-the-taker rule serves to keep an owner from receiving a windfall based on the property's special or unique value to the condemnor.
The Avinger family in Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, ___ S.W.3d ___ (No. 10-0950, August 31, 2012) (6-3 decision) owned vacant land in a gas producing area uniquely situation for a gas production plant. In 1973, the Avinger family leased a 23-acre property to Tonkawa Gas Processing Co., a private concern, for construction of a gas plant. There were several lease renewals on agreed terms until 2007, when the parties could n on longer agree on renewal terms. Tonkawa then merged with Enbridge Pipelines, an entity with condemning authority. Enbridge petitioned to condemn Avinger's interest in the property (all improvements belongs to the gas company); the commissioners awarded Avinger $45,580 at the commissioner's hearing. Avinger appealed.
At trial Enbridge submitted an appraisal with a value for the Avinger tract being $47,940 on a highest and best use of rural residential construction. Avinger's expert valued Avinger's interest to be $20,955,000 using a highest and best use as industrial property - gas processing plant.
Avinger's expert included in his valuation that savings to Enbridge by being able to condemn the property. Because the lease provided that Enbridge could remove the plant from the land and restore the land to its original condition, Avinger's only interest in the property was the vacant land. However, the expert included Enbridge's cost savings by not having to tear down and relocate the plant; a cost Enbridge saved by condemning the property. The Court held that because the appraisal includes value-to-the-taker as part of the value of the comdenmee's value, the appraisal should have been excluded.
The Supreme Court also affirmed the appeallate court's decision to affirm the trial court's exclusion of Enbridge's appraiser. That appraiser established the highest and best use despite the presumtion that the law presumes the property's use for the last almost 40 years would be the highest and best use. The Court noted the property was uniquely situated for operating a gas plant due to pipelines and roads accessing and crossing the property.
With both appraisals found wanting, the Court remanded the case back for a new trial, possibly with different appraisers, or at least new appraisal methodologies. As a general rule, when two appraisals come in with a difference of 43,600%, the red flags should be flying high for any court.
The dissent reportED that the majority errED by referenceing Avinger's expert report because that report was never admitted into evidence. The dissent claims the testimony from the appraiser was adequate to affirm the lower court's decisions. The dissent makes a good point regarding the state of the evidence, perhaps, but their view did not carry the day with the nine justices that mattered.
Monday, August 20, 2012
Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds. Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.
The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.
Hat tip: Sentencing Law and Policy
Wednesday, August 15, 2012
Robin Charlow (Hofstra) has posted "Batson 'Blame' and its Implications for Equal Protection" on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
The Iowa Law Review has accepted the paper for publication.
Thursday, August 9, 2012
Two important papers on Due Process and the Takings Clause to the United States Constitution appeared on SSRN yesterday.
In "Property's Constitution" (California Law Review, forthcoming), Professor James Y. Stern (Virginia) considers property's meaning under the Bill of Rights and observes that the Court has failed to clearly distinguish property rights, protected by the Takings Clause, from legal rights, protected by Due Process. Here is the abstract, which further summarizes the problem and his solution:
Long-standing disagreements over the meaning of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
In "Irregular Kelo Takings: A Potential Response to Natural Disasters" (The Urban Lawyer, forthcoming), Professor Fredrick E. Vars (Alabama) considers whether or not communities may re-draw urban lots following natural disasters to increase property tax revenue after Kelo v. City of New London. The abstract:
Tornadoes, hurricanes, floods, mudslides, earthquakes, tsunamis, volcanoes, and fires devastate property. Prior studies have shown that rectangular urban lots are much more valuable than irregular ones. Local government faced with an essentially blank slate after a natural disaster might therefore redraw boundary lines to eliminate irregular parcels. This essay assesses that strategy and concludes: (1) the premium for rectangular lots is smaller than previously estimated, but still significant; (2) the controversial United States Supreme Court decision in Kelo leaves open the door to squaring lots as a means to increase property tax revenue; and (3) post-Kelo legislation in many states inadvertently closes the door on this perhaps sensible strategy.
Wednesday, August 1, 2012
On Tuesday, the Missouri Supreme Court that legislative caps on the amount an injured plaintiff may recover for non-economic damages in a medical malpractice case violate the state's constitutional right to trial by jury. Watts v. Lester E. Cox Medical Centers, No. SC91867 (Mo. July 31, 2012). The court decided the case 4-3.
The Missouri legislature previously passed a law limiting the recovery for non-economic damages in a medical malpractice case to $350,000. Deborah Watts brought suit against her physician on behalf of her child, Naython Kayne Watts, for brain injuries sustained by the child during pre-natal care and delivery. A Missouri jury awarded Watts $1.45 million in non-economic damages, however, following the recovery cap law, the trial court reduced the recovery to $350,000.
The Missouri Supreme Court employed a textual and historical analysis to overturn the recovery limitation law. Missouri's state consitution, adopted in 1820, guarantees that "the right of trial by jury as heretofore enjoyed shall remain involate..." The court read the guarantee to mean that if Missouri common law entitled a plaintiff to a jury trial on non-economic damage in a medical negligence action prior to the state consitution being enacted, then Watts had that same right guaranteed in the present.
The court found that Blackstone identified medical negligence as one of "five types of private wrongs" that could be redressed in court, and that English common law allowed plaintiffs so injured to recover non-economic damages. Further, the court found that Missouri law pre-statehood provided for a jury trial in "all cases of the value of one hundred dollars ... if either of the parties require it." Because the right to jury trial on non-economic damages in a medical malpractice existed at common law prior to 1820, the court concluded, Watts enjoys a constitutionally guaranteed right to trial by jury on her claim for non-economic damages.
The court's decision overturned Adams by and Through Adams v. Children's Mercy Hospital, 832 S.W.2d 898, 907 (Mo. 1992) which had previously upheld the recovery cap against a similar state constitutional challenge. The disagreement between Adams and Watts is on whether or not the Missouri right to trial by jury is satisfied by the mere trial before the jury. Inasmuch as the law allows the jury to hear the evidence and assess damages, Adams concluded, the constitutional guarantee is satisfied even though the recovery cap essentially renders the jury's decision without meaning beyond the cap amount. The Watts court rejected this interpretation:
Adams fundamentally misconstrues the nature of the right to trial by jury. While [the Missouri Constitution] sets the constitutional role of the jury, it does so by guaranteeing an individual right to a trial by jury. The application of [the recover cap law] may permit the jury to perform its constitutional role, but it deprives the individual of his or her right to the damages awarded by the jury. The constitutional significance of the jury’s role in determining damages is reflected in the analytical basis for determining whether the right to trial by jury attaches -- if the action is a civil action for damages, then the right to a jury trial attaches and must “remain inviolate.” Because the constitutional right to a civil jury trial is contingent upon there being an action for damages, statutory limits on those damages directly curtail the individual right to one of the most significant constitutional roles performed by the jury -- the determination of damages. The argument that section 538.210 does not interfere with the right to trial by jury because the jury had a practically meaningless opportunity to assess damages simply “pays lip service to the form of the jury but robs it of its function.”
States continue to return mixed verdicts on state constitutional challenges to recovery cap legislation, typically on textual, historical or structural grounds.
Thursday, June 28, 2012
In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.
The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority. The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits. Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.
The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA. Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.
The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely. The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.
Wednesday, June 13, 2012
Sam Estreicher just published another excellent article in the New York Law Journal on June 13, 2012, here. In this relatively short article-especially for Sam, Professor Estreicher outlines the major arguments in support of Obamacare. Namely Congress regulates us all the time and he gives an example of having to wear seat belts.
Professor Estreicher is clearly concerned that the Supremes may over-turn Obamacare based upon his analysis of the Justices comments during oral argument.
In any event, what makes health care different is that you do no choose health. Yes, Congress regulates seat belts, but you do not have drive that car.
Whether this makes a difference for constitutional purposes, we will shortly find out. I hope Professor Estreicher is right.
Mitchell H. Rubinstein
Wednesday, May 30, 2012
Chicago Teachers Union v. Board of Educ. of the City of Chicago, ____F.3d____ (7th Cir. Apr. 19, 2012), is an interesting case. The Seventh Circuit reversed a district court’s ruling granting the Chicago Teachers Union (CTU) a preliminary and permanent injunction ordering the Chicago Board of Education to rescind its economic layoff of tenured teachers and to promulgate layoff and recall rules for tenured teachers. The panel’s decision to reverse and remand with instructions for the district court to vacate the injunction was based on the responses to questions the panel certified to the Illinois Supreme Court, which determined that Illinois law did not give laid-off teachers substantive rights with respect to rehiring and rights to certain procedures during the rehiring process.