Gavel Grab

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Scrutiny, Debate Over Foreign Intelligence Surveillance Court

The role of a secretive federal court in Washington is getting increased scrutiny as debate rages over disclosures of programs for U.S. government surveillance and collection of telephone call and Internet data for national security purposes (see Gavel Grab).

On Friday, President Obama said in defense of the programs, according to the Washington Post, “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved them, Congress is continually briefed on how these are conducted . . . and federal judges are overseeing the entire program throughout.”

But whether the oversight provided by the branches, including the Federal Intelligence Surveillance Court, is meaningful was questioned by civil libertarians, some academics and members of Congress.

“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” Stephen I. Vladeck, who teaches law at American University, told the Washington Post for a separate article.

When the court entrusted with ensuring Americans’ rights in this realm “meets in secret, allows only the government to appear before it and rarely publishes its decisions,” there is undermining of judicial oversight, contended Jameel Jaffer of the American Civil Liberties Union. Read more

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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The U.S. Supreme Court under Chief Justice John Roberts, when examined by statistics, has been more sympathetic to the interests of corporations than any other court since World War II, argues Lincoln Caplan in a New York Times editorial. He notes one specific case of “pro-business bias,” Genesis HealthCare Corp. v. Symczyk, in which the court ruled in Genesis’ favor,  dismissing an individual’s claim in the collective action lawsuit.
  • In her new book, “The Roberts Court,” Marcia Coyle examines the four highest-profile cases the current court has decided, such as health care, campaign finance, gun rights, and affirmative action policies. In a Washington Post book review, Jeffrey Rosen states that Coyle’s book avoids oversimplifying the decisions of the court along partisan lines between the justices.
  • The Indiana Supreme Court blocked a transfer of a Lake County judge to a juvenile court this week, reports the Associated Press. In its decision, the court said that Judge Nicholas Schiralli could not transfer because he had not gone through the relevant system of merit selection of judges when he joined the bench.
  • While Ohio may never do away with judicial elections, that does not mean that the system can’t be improved, argues a Cleveland Plain Dealer opinion by Thomas Suddes. State Supreme Court Chief Justice Maureen O’Connor recently proposed several changes to judicial elections, including giving Ohio’s senators an opportunity to review the governor’s judicial appointments.

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Commentary: Secret Campaign Cash Undermines Judicial Races

When public defender Ed Sheehy (photo right) was running for a seat on the Montana Supreme Court in 2012, an organization listed as the Montana Growth Network sent out mailers accusing him of being “soft on crime.” Sheehy had won the primary race, but went on to lose the general election in November, reports the Redlands Daily Facts.

Sheehy blames the mailers for his defeat, but due to Montana’s campaign disclosure laws, he was not able to find out who funded the organization. Before the primary, the Montana Growth Network endorsed District Judge Laurie McKinnon (photo below left), the article says, and she later went on to win the election.

A third candidate, attorney Elizabeth Best, spent the most money on her campaign of the three candidates. She told the Center for Public Integrity that she was “stunned” by the outcome. Read more

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New Book Examines Caperton Litigation, ‘Compromised Court’

Hugh Caperton’s longtime battle with the former A.T. Massey Coal Company, which resulted in a landmark 2009 Supreme Court decision about runaway judicial election spending and impartial courts, isn’t fading into history.

The conflict and the role of Caperton’s two Pittsburgh attorneys is the topic of a book scheduled for publication soon, called “The Price of Justice.” It presents a compelling tale that is sympathetic to Caperton, according to a Pittsburgh Post-Gazette review.

The book by Laurence Leamer also delivers a decidedly unsympathetic view of the West Virginia Supreme Court. Regarding businessman Caperton’s legal dispute with then-Massey Chief Executive Officer Don Blankenship, the review says:

“With a careful attention to detail, Mr. Leamer chronicles intrigue inside the West Virginia Supreme Court of Appeals, which three times took up Massey’s appeal of the $50 million awarded to [Caperton’s] Harman Development. From Justice Elliott ‘Spike’ Maynard, who vacationed with Mr. Blankenship on the Riviera then ruled with the majority in throwing out the $50 million verdict against Massey, to Justice Brent Benjamin, who refused to recuse himself Read more

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WI Bill Called ‘Outrageous’ Attempt to Limit Judicial Independence

A new bill being circulated by Wisconsin GOP lawmakers would effectively limit the ability of circuit court judges to block state laws, reports the Associated Press.

Rep. David Craig, one of the proposed bill’s chief sponsors, argues that it would speed up the appeals process by sending all challenges of state law to the highest court first.

According to the Milwaukee Journal Sentinel, former state Supreme Court Justice Janine Geske says the bill is an “outrageous interference with the judicial process. (Judges are) the check and balance on the Legislature and the governor’s office that is critical to a democracy.”

“To statutorily undo a court order before another court has acted on it is clearly to me an infringement on a court’s independence, and I don’t think it will withstand constitutional scrutiny,” said Geske. Read more

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Court Won’t Hear Challenge to Direct Corporate Contribution Ban

The Supreme Court will not hear a challenge to a federal ban on direct corporate contributions to federal candidates.

The court said on Monday it would not review a ruling by the Fourth U.S. Circuit Court of Appeals that upheld the ban. The Fourth Circuit had reversed District Judge James Cacheris of Virginia’s ruling that, in the wake of Citizens United, had struck down the century-old ban (see Gavel Grab).

The court’s decision Monday came in a case brought by William P. Danielczyk Jr. and Eugene R. Biagi. They contended the ban tramples on free-speech rights of corporations, according to an Associated Press article.

The two political fundraisers for Hillary Clinton were indicted on charges they broke campaign finance law; they have been accused of using corporate cash to reimburse donors to Clinton’s campaigns.

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Court-Stripping Bill Debated in Wisconsin

The Wisconsin Supreme Court would be required to directly take up constitutional challenges to state laws and to rule within 150 days under the proposal of a leading Republican legislator. It has sparked controversy from critics who said it would interfere with impartial courts.

The bill drafted by Sen. Michael Ellis, the state Senate president and a Republican, would remove lower courts from these rulings. Ellis said his proposal would streamline the process to review these constitutional challenges.

Democratic Rep. Gary Hebl, a Democrat who belongs to the Assembly’s judiciary committee, protested what he called a power grab, according to an Associated Press article.  “Just because Republicans do not like the results of current litigation does not mean that we should change the rules of the game,” he said. “These are incredibly important decisions that should not be rushed by artificial timelines set by the Legislature.”

Democratic Sen. Fred Risser also was critical. “This bill is telling the Supreme Court what to do and how to do it,” he said. “It eliminates trials and contested cases. That violates, in my opinion, the judicial process all together.”

Wisconsin’s highest court currently has a conservative majority.

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Targeted Killings Court Supported by NY Times Editorial

Particularly when American citizens overseas are targeted for killing because they are suspected terrorists, they should be protected by the “fundamental principle” that people can be locked up or executed in America only upon orders by a jury or judge, a New York Times editorial says.

“A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones,” the editorial states. It goes on to support the idea of a special court, similar to the Foreign Intelligence Surveillance Court, to engage in such review.

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Sparks Start Flying in 2013 Wisconsin Supreme Court Contest

Vince Megna (photo at left), a candidate for the Wisconsin Supreme Court, declared in a statement he opposes state voter ID laws and “would vote against suppressing the vote” if he sat on the court and it took up a voter-suppression case.

An adviser to incumbent Justice Patience Roggensack (photo below right) seized on Megna’s comments as potentially precluding him from participating in hearing such a case, a Milwaukee Journal Sentinel article said. Megna hopes to challenge Justice Roggensack in an election next year.

“By making decisions before listening to the merits of a case, Mr. Megna has taken the dangerous step of precluding himself from issues that could come before the court rendering himself unable to have an open and unbiased mind for the issues of the people who come before the court,” Brandon Scholz said. Megna, in turn, elaborated that he did not think he had made a commitment on how he might decide a case and said any decision he made would be based on the merits of the case.

In addition, Megna said he is a Democrat. His opponent is a Republican, he said, and he insisted on putting an end to the “fiction” of nonpartisan court races.

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Egypt: Threat to Courts a Target of Massive Street Protests

A recent decree by Egyptian President Mohamed Morsi, and its inherent threat to judicial independence, has sparked protests by tens of thousands in the streets of Cairo. The face-off between Egypt’s courts and its president has drawn international attention.

Last week, Morsi issued a decree exempting almost all of his decisions from judicial review until a new constitution, currently the subject of voting in a special assembly, is ratified. On Thursday, heavy street protests over Morsi’s action extended into a seventh straight day.

“Whoever does not respect the judiciary is not fit to rule Egypt,” one protestor in Tahrir Square,  Ekramy al-Sayed Abdou, told the Washington Post.

A spokesman for the Supreme Constitutional Court said, “The court will not be intimidated by any threats or blackmail and will not submit to any pressures practiced on it from any direction, regardless of its power and unity.” The court has authority to interpret laws and presidential decrees. Read more

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