Rules

FLORIDA (Immigration Law) – Court Weighs Immigrant’s Right to Practice Law

Recently, the Florida Supreme Court accepted a request from the Florida Board of State Bar Examiners to determine whether it can grant an applicant who is not in the country legally admission to practice law. The case, which has been flagged as “high profile” by the court, will determine the fate of aspiring lawyer Jose Godinez-Samperio.

The twenty-five-year-old Tampa resident came to the U.S. with his parents when he was nine years old. The family’s tourist visa expired, but they never left, and Godinez-Samperio went on to become an Eagle Scout and the valedictorian of his high school. After completing college, he attended Florida State University College of Law, and upon receipt of his law degree and passage of the Florida bar exam, applied for admission to the bar.

That admission now hangs in the difference between rules and policies. Godinez-Samperio argues that the Florida Supreme Court is the only body capable of adopting new rules for admission to the Florida bar, and their current rules do not require applicants to verify their legal immigration status. The Board of Bar Examiners, who since 2008 have required exam-takers to submit proof of immigration status, are, according to Godinez-Samperio, attempting to enforce a contrary policy, although he already complied with the rule.

Additionally, Godinez-Samperio’s supporters argue that as a matter of policy, denying his admission to the bar would be an incredible waste of talent for the profession, and an unjust punishment for someone who had no say in his family’s decision to overstay their tourist visa. Moreover, Godinez-Samperio has been entirely forthcoming about his immigration status at every opportunity, disclosing it on college and law school applications and on his application to the bar.

But opponents to his admission insist that he is nonetheless unfit to practice law. They argue that in showing continued contempt for American immigration laws, Godinez-Samperio has undermined his credibility as a faithful agent of the law and the courts. To a similar end, Tom Fitton, president of the conservative watchdog group Judicial Watch argued, “He can’t practice as a lawyer….He is not legally able to work in the United States. …It seems to me that it would be an absurdity to give him a Bar card at this point.”

Godinez-Samperio is the first undocumented immigrant to apply for admission to the Florida Bar since the 2008 policy change. The decision in his case is thus an important one for the future of the profession in the state, and may likewise have consequences for similar matters pending in New York and California.

Further Reading:
ABC News
Sun Sentinel

–Meredith McCoy

TEXAS (Family Law) – Do-It-Yourself Divorce? The Texas Supreme Court Mulls Its Options

Last week, an advisory board to the Texas Supreme Court debated the adoption of so-called “do-it-yourself” divorce forms, which would enable Texans to obtain a divorce without the assistance of a lawyer in uncomplicated and uncontested cases. Currently, Texas is one of only thirteen states that does not allow couples to file for divorce by filling out the court-approved forms, and proponents argue that the adoption of form divorce would make the legal system more accessible. Opponents of the change, however, insist that the proposal oversimplifies divorce proceedings to the detriment of participants.

The debate arises out of the recommendations of a Supreme Court task force, who last year recommended that the court create the forms so that individuals who cannot afford a lawyer could participate in legal proceedings. According to the Texas Access to Justice Commission, six million Texans qualify for court-assisted legal aid, but due to a shortage of pro bono attorneys and legal assistance resources, only about twenty percent of them receive the help they need. The do-it-yourself forms would streamline the divorce process and enable indigent couples to obtain the relief they seek. In addition, proponents argue that standard divorce forms would enhance state uniformity in adjudicating divorces. Currently, judges throughout the state vary on the acceptance of commercial forms currently available. While some judges will accept them, others will not, and others still put restrictions on their acceptance, such as the requirement that the forms be in English.

Opponents, including the Texas State Bar, continue to oppose the forms, however. They insist that the law cannot be boiled down to a simple form meant to apply to all persons in all situations. Where significant ramifications are on the line, it is important that couples seek individual legal advice, and they propose alternatives to increase access to legal resources. Rather than enlist a form, the State Bar proposed last week setting up a hotline to connect couples with lawyers charging as little as $500 for a divorce, and requiring new lawyers to take more pro bono cases. Moreover, the State Bar argued that the proposed forms submitted at the hearing are “riddled with errors” that would mean they may not hold up in a court.

Proponents, however, charge that these concerns are overstated, and rest in the State Bar’s interest in protecting business for attorneys practicing family law in the state. Ultimately, they argue, the interest in increasing access to justice should override commercial state interests.

The advisory board is expected to make a recommendation in the coming weeks; however the Supreme Court will engage in its own evaluation before it adopts or rejects any form, and is not bound by the task force’s recommendation.

Further Reading:
Houston Chronicle

–Meredith McCoy

MONTANA (Civil Procedure) – Following the Rules is Necessary to Maintaining a Case

On April 10, 2012, the Montana Supreme Court confronted an interesting issue of civil procedure in the case of Cascade Development, Inc. v. City of Bozeman. Specifically, the court had to decide whether Cascade, a development company building a subdivision in Bozeman, could proceed with its suit against the City or if Cascade was barred by the statute of limitations. The court was called upon to determine the bounds of proper service of a complaint under Montana law. Both parties agreed that Montana Rule of Civil Procedure 4(k) controlled the case; the disagreement was in the proper manner in which to interpret this rule.

The present issue arose from a dispute between Cascade and the City regarding a subdivision the company was building within the city. Cascade filed a complaint against the City on December 7, 2007 but did not attempt to serve the complaint on the City for nearly three years. Recognizing that the statute of limitations in Montana for service of a complaint is three years, on December 2, 2010, Cascade took the complaint to the Bozeman City Attorney’s Office and asked who could receive service of the complaint on behalf of the City. A deputy city attorney was present in the room at that time and accepted the complaint. It is unclear and immaterial to this case whether the deputy city attorney expressly indicated that she could accept service on behalf of the City.

The City filed a motion asking the District Court to dismiss the complaint, claiming that Cascade failed to serve the City within the three year statute of limitations. Because the deputy city attorney was not “a commissioner, trustee, board member, mayor or head of the legislative department, [she was not a party] capable of receiving service for a local government entity pursuant to [Montana Rule of Civil Procedure] 4(k).” Because the deputy city attorney did not have the power to accept service on behalf of the City, the statute of limitation had passed. The District Court agreed with the City and granted the motion to dismiss the case.

Cascade appealed to the Montana Supreme Court, arguing that the deputy city attorney is a rightful person to accept service on behalf of the city even though the city attorney is not expressly mentioned in Rule 4(k) as a capable party. Cascade’s argument rested on a case previously decided by the Montana Supreme Court in 1979, Doble v. Talbott, where the court found that service of a complaint to a creditor’s lawyer was proper because it constituted a “necessarily and logical[ extension of] the attorney’s duty to protect[] his client’s claim against the judgment debtor’s attempt to block the execution sale.” Similarly, because the city attorney represents the City in all legal proceedings, “like Doble, a city attorney was the optimal person to receive service of process.”

The court accepted the City’s argument that Doble does not apply to this case because the attorney in Doble was empowered to accept service on behalf of an individual client. Doble did not speak to whether an attorney was empowered to accept service on behalf of a local government entity as in this case. Rather, Doble found an implied agency due to the nature of the relationship between the individual creditor and his lawyer. In this case, the rules of civil procedure do not allow for such an implied agency. Thus, effective service of process on a local government is limited to those parties expressly enumerated in the rules. It is immaterial whether the deputy city attorney held herself out as a party that could accept service on behalf of the City because the “[r]ules for service of process are mandatory and must be strictly followed.” Additionally, the City cannot be estopped from moving for dismissal on equitable grounds because regardless of whether the deputy city attorney expressly held herself out as a person who could accept service on behalf of the City, there is no indication that she did so to intentionally and fraudulently mislead Cascade. Cascade’s failure to consult the rules to determine proper service does not impose a burden on the City to have this knowledge.

–Staff Writer

MAINE (Court-Community) – Maine Supreme Judicial Court Offers Live Audio Streaming of Oral Arguments

On April 9th, the Maine Judiciary branch announced that the Maine judicial website would now offer live audio streaming of oral arguments before the Maine Supreme Judicial Court. The web streaming will be active when the court is in session and go live five minutes before hearings begin. The first live streaming will be offered for oral arguments scheduled for April 11th. The feature is meant to increase accessibility to the court. The announcement quoted the Maine Government and Media Counsel:, “This is a great step forward in making the work of the Supreme Judicial Court accessible to all Maine people, no matter where they live….We are excited that technology has afforded us a way to bring the work of Maine’s appellate court to virtually all corners of the state. It is our hope that this will bring greater understanding of the work of the Judicial Branch of government.”

The launch of the oral arguments streaming follows Chief Justice Saufley’s announcement of the new service in her February 9th State of the Judiciary speech. In the speech she discussed the progress of the Maine courts and had one section specifically referred to technology, saying “We must move the courts into the twenty-first century, not just for efficiency, but also for improved public service.” In her speech Saufley acknowledged the funding concerns of launching a new program, but said that, “With some serious creativity” they believed the program could be created without new resources. Alongside the announcement of the live streaming, Saufley also announced that, “we will be reporting to you in July on a plan for creating a fully electronic court system.”

Streaming available here

Oral arguments schedule available here

News coverage: Bangor Daily News

-Lillian Macartney

NORTH DAKOTA (Election Law) – Supreme Court Allows Fighting Sioux Referendum to Continue

In a split decision on April 3, 2012, the North Dakota Supreme Court ruled in North Dakota State v. Jaeger against the North Dakota State Board of Higher Education (“Board”), refusing to determine the constitutionality of the referendum before the June 2012 vote.

The controversy began when the NCAA determined that University of North Dakota’s use of the Fighting Sioux nickname was “hostile and abusive” to Native Americans. Despite this ruling, a group of nickname supporters prevented UND from complying by convincing the North Dakota legislature to pass a law that required UND to use both the Fighting Sioux nickname and logo. The legislature backtracked later and passed Senate Bill No. 2370, which repealed the law requiring UND to use the logo. Not to be outdone, nickname supporters collected 16,000 signatures, enough to put the issue back before voters in a June 2012 referendum.

In response, the Board asked the supreme court to rule on the constitutionality of the referendum before the June ballot. The Board argued that the court had mandatory original jurisdiction to determine the referendum’s constitutionality under article 3, sections 6 and 7 of the North Dakota constitution. These sections state that any decision the secretary of state takes in regards to petitions (referendums) are “subject to review by the supreme court in the exercise of original jurisdiction.” The Board also argued that the court could exercise discretionary original jurisdiction under article 6, section 2 of the constitution.

In the majority opinion, three of five justices held that mandatory review under article 3, sections 6 through 7 was limited to the sufficiency of the petition solely, and not its constitutionality. The court then outlined that discretionary exercise of original jurisdiction is appropriate when “the interests of the state [are] primary, not incidental, and the public . . . must have an interest or right which may be affected.” The court concluded that because the issue on the referendum raised “fundamental questions” on the rights of the people, the limits of governmental authority, and the balance of powers between the Board and the secretary of state, the issue warranted the exercise of discretionary original jurisdiction.

However, the majority opinion stated that the constitution under article 6, section 4 required four out of five justices to agree on the unconstitutionality of a legislative enactment. Thus, because only three justices joined the majority opinion, the court lacked the required number of justices to determine the constitutionality of the referendum. Therefore, the referendum will remain on the June 2012 ballot.

In her concurring opinion, Justice Kapsner argued that it would be improper to take the issue from the voters. Furthermore, she argued that court precedent weighed in favor of rejecting constitutional challenges to “incomplete legislative process[es].” Justice Crothers, also concurring, argued that the court should hear constitutional challenges using discretionary original jurisdiction in very few and select cases and the case at hand did not impact the public interest to the extent necessary to warrant review.

–Thomas Joraanstad

OHIO (Juvenile Justice) – New Rule Will Protect Juveniles’ Right to Counsel

The Supreme Court of Ohio has approved a new procedural rule outlining a juvenile’s right to counsel. Under this new rule, Juvenile Rule 3, a child will be required to speak to an attorney before waiving the right to an attorney so that they understand the ramifications of such a decision. Under the previous rules, a child only had to speak to an adult before waiving their rights. This could be problematic when the adults in question may not understand the system or stakes of the decision and are essentially providing counsel to a child while not possessing all the information themselves.

Those opposing this new rule have pointed to the increased cost on the state of providing access to attorneys, but according to the ACLU of Ohio, the cost of imprisoning a minor for one year is $161,000. Because, presumably, a child with an attorney is less likely to be imprisoned, the ACLU claims this rule will not only lead to more appropriate results for juvenile offenders, it will also save the state money.

The Ohio General Assembly has until July 1, 2012 to pass a motion disapproving of this new rule, otherwise it will go into effect immediately.

For more information see limaohio.com or public news service.

– Nick Mueller

MISSOURI (Election Law, Constitutional Law) – Campaign Ethics Rules Invalidated

Missouri Governor Jay Nixon says it is now “open season” for those who want to want to use large amounts of money to influence campaigns or perhaps even provide quid pro quo contributions to Missouri lawmakers. In 2010, with wide bipartisan support, Missouri passed new ethics rules to address the problems Governor Nixon is concerned about. These rules would prevent the laundering of political donations through a series of fundraising committees and require lawmakers to disclose, within 48 hours, the source of contributions over $500 made during the legislative session. This law would also provide both civil and criminal penalties for violations of such rules. “Open season” began on February 14, 2012, when the Missouri Supreme Court decision struck down the law as unconstitutional.

As the court points out, the law in question, Senate Bill 844(SB 844), was originally introduced as “An Act to amend chapter 37, RSMo, by adding one new section relating to contracts for purchasing, printing, and services for statewide elected officials.” But after legislative wheeling and dealing, or logrolling as it is sometimes called, SB 844 had changed subject and name, becoming an Act “relating to ethical administration of public institutions and officials, with penalty provisions and contingent effective date for certain sections.”

While perhaps the real crime here is the long-winded and rambling titles that Missouri legislators choose for their laws, the Missouri Supreme Court instead unanimously stuck down the law as a violation of Missouri Constitutional requirements on legislation. Plaintiffs in this case alleged that SB 844 violated article III sections 21 and 23 of the Missouri Constitution, which require that legislation be limited to a “single subject” and prohibiting “changes in the original purpose of the bill.”

The court, in line with its precedent, held that the original purpose of a bill is the one stated in its original title and that here, the final bill had other purposes not conceived of in that title. Therefore, the court held the law unconstitutional and did not reach the question of whether the single subject rule had been violated. Over the protestation of a concurring opinion, the court did allow the provisions relating to the original purpose, outlining the procurement process, to remain intact.
Though these ethics rules were passed with overwhelming bipartisan support, the procedure used to pass them has taken them off the books. While the Governor has pushed for a speedy passage of these rules in a new and procedurally proper bill, the political tension of an election year appears to make the bill’s passage unlikely.

For more information here

– Nick Mueller

OHIO (Torts, Constitutional Law) – Is an Ohio Law Creating Separate Stages for Determining Compensatory and Punitive Damages Unconstitutional?

The question of what is a procedural rule and what is a substantive rule has once again reared its head in Ohio. In Havel v. Villa St. Joseph, the Supreme Court of Ohio addressed whether a law passed by the legislature was substantive and thus constitutional or procedural and thus infringing on the judiciary’s constitutionally duty to set rules for the courts. The court held that the law in question, while certainly affecting procedure, “creates, defines, and regulates a substantive and enforceable right” thus it is proper to come from the legislature.

The law in question, R.C. 2315.21(B), allows any party in a tort action to demand that the case be bifurcated, or split into two segments. The first segment would only admit evidence that relates to whether the plaintiff should be awarded compensation for damages that the defendant caused them through some tortuous action. Only if compensatory damages are awarded would evidence be received to show that additional punitive damages are warranted. The effect of such a bifurcated procedure is that a defendant can prevent juries from hearing evidence of particularly malicious intent or emotionally disturbing disregard for another’s well being at the first stage if it is not essential to the elements of awarding compensation. Such a procedure will make it less likely that a jury will simply feel bad for a plaintiff or dislike a defendant and come to an emotional decision based on evidence not necessary to prove the underlying tort.

Previously, bifurcating trial decisions was at the discretion of the court. Now, according to the Ohio Revised Code, it can be demanded by either party. The court held that because it could be demanded, this was not merely a change in procedure, but a substantive right that legislature was granting to plaintiffs in Ohio. The Ohio Constitution explicitly gives the power to the Ohio Supreme Court to create rules governing procedure in Ohio courts. But in this case the court humbly decided that legislature did not infringe upon the separation of powers and upheld R.C. 2315.21(B) and the right to a bifurcated trial.

For further coverage click here.

– Nick Mueller

MONTANA (Criminal Procedure) – Guilt Travels to the Grave

On Tuesday, January 14, 2012, the Montana Supreme Court issued a ruling in State v. Benn in which it revisited, and ultimately upheld, its precedent that a defendant’s death during the course of an appeal renders that appeal moot.

Wesley William Benn was convicted of sexual intercourse without consent and sexual assault. Benn’s sentence was as follows:

The District Court sentenced Benn to 100 years in the Montana State Prison, with 50 years suspended, for sexual intercourse without consent, and to 50 years in prison, with all 50 years suspended, for sexual assault to run consecutively with the sentence for sexual intercourse without consent. The court imposed a 25-year parole eligibility restriction, designated Benn a Level II sexual offender, and ordered Benn to pay the costs associated with the victim’s therapy.

Unlike most other states, Montana lacks an intermediate court of appeals. Therefore, all appeals are heard by the Montana Supreme Court. Benn’s appeal reached the Montana Supreme Court on three issues:

1) whether the District Court erred in instructing the jury on the sexual assault charge; 2) whether Benn’s trial counsel rendered ineffective assistance by failing to move for a continuance of a hearing when a witness became ill; and 3) whether Benn’s lengthy sentence “shocked the conscience” and violated his constitutional rights in light of his failing health.

Benn died a month after filing this appeal.

In crafting this decision, the Montana Supreme Court revisited its prior holding in State v. Holland in which it held that “the death of an accused pending the appeal of a judgment of conviction abates the appeal.” The judgment was vacated and the indictment dismissed, but only because the defendant was dead.

In the present case, the State argued that the court’s ruling in Holland was flawed because it does not recognize victim’s rights. After the Holland decision was rendered, Article II, Section 28 of the Montana Constitution was amended to add restitution for victims as a principle of the State’s criminal justice policy. This was implemented through legislation providing for “restitution, reparation, and restoration to the victim of the offense.” The State sought to have the appeal dismissed as moot under the policy of restitution for victims. The crucial difference between the outcome in Holland and the current outcome that the State sought in Benn is that under Holland, the deceased defendant is no longer deemed to have committed a crime; the conviction is void. The State sought to have the criminal conviction remain in place and render the appeal void.

Benn’s counsel, on the other hand, argued that Benn’s mother should be permitted to carry on his appeal “to continue to protect his reputation and clear his name, and because Benn’s criminal conviction may affect potential civil litigation.” This standard would be similar to the law that permits “substitution of a party upon death in a civil case.”

The Montana Supreme Court formally overruled Holland by ruling in favor of the State, holding that voiding the judgment is “an inappropriate resolution of a case when the defendant has died.” Upon conviction, “the judgment is presumed to be valid” and “the burden to demonstrate error is on the defendant.”

The court also rejected the argument of Benn’s counsel that Benn’s mother should be permitted to carry on the appeal. Benn’s counsel demonstrated that substitution of parties is permitted in civil cases, but there is nothing providing for this in criminal cases. Regardless, the court also found that Benn’s issues for appeal were mooted by his death. The third issue, Benn’s lengthy sentence, is clearly mooted by his demise. The court held that the first two issues are also moot because challenging Benn’s sexual assault conviction and the effectiveness of his counsel would require further trial or post-conviction proceedings, which “are now impossible to undertake, given Benn’s death.”

The court did not conclude that a criminal appeal is always moot when the criminal defendant dies. Specifically, the opinion stated that “[t]he determination that a criminal case is not moot … would be premised upon the identification of concrete interests which survive the defendant.” The court did not attempt to identify what these issues might be; it was content to conclude that these issues did not exist in Benn’s case.

A copy of the full opinion can be found here with a search for State v. Benn, 2012 MT 33.

–Staff Writer

TENNESSEE (The Judiciary) – Judges Judging Judges

Tennessee Senator Mae Beavers (R-Mt. Juliet) has not hidden her criticism of the Tennessee state courts in this legislative session. Last week at a debate before the Tennessee Press Association, Beavers targeted legislation aimed at reforming the Court of the Judiciary (COJ), the ethics panel that adjudicates citizen complaints against Tennessee judges. The legislation would make it more difficult to dismiss a complaint against a judge and retain the current system wherein judges appointed by the Tennessee Supreme Court compose a majority of the ethics panel. Beavers believes this is a bad idea: “I just think it looks bad when you have judges appointed by judges to judge judges . . . .”

Judge Jeffrey Bivins of the Tennessee Court of Criminal Appeals, currently a member of the COJ, supports the legislation. Bivins responded that members of the other professions discipline their own, “[s]o we’re simply asking to be treated like the other professionals . . . .” Bivins acknowledged that the COJ needs some reform. In the last fiscal year, the COJ handled 334 complaints against Tennessee judges. Only 18 resulted in discipline; the COJ dismissed the rest. Complaints are closed to the public, but some records will be opened if the COJ formally charges the judge.

Beavers believes the public should be able to discover when a judge has two complaints alleging the same misconduct. She also advocates fewer judges on the panel, appointed by the House and Senate, rather than the Tennessee Supreme Court. Bivins retorted that the two complaint rule would be monstrously unfair to judges who sit in an area with a prison. Prisoners file plenty of complaints against judges simply because they disagree with their decisions, says Bivens.

Governor Bill Haslam (R), Lieutenant Governor Ron Ramsey (R), and House Speaker Beth Harwell (R-Nashville) also support the legislation. The bill is another step in an effort to improve ethical considerations for Tennessee judges. Last month, the Tennessee Supreme Court approved new ethical rules, which “have been called by some as a model for the nation.” Bivens admitted that the COJ “got lax for a while. . . . But what we don’t want to do is move forward with legislation that not a single judge in the state supports.”

The legislation is SB2671.

For further news coverage, see the Missouri News Horizon, Kingsport Timesnews.net, and WDEF.com (Chattanooga).

–Timothy Huffstutter

Our Editors



Rebecca Green, College of William & Mary Law School

Scott Graves, National Center for State Courts