Nevada Shows It Is Time for Another Shot at the Equal Rights Amendment

I have been thinking for a few days that maybe it was time to think about a new initiative to pass the (gender) Equal Rights Amendment (ERA).

My thought was that the last failures to reach the required three quarter of states threshold were in part caused by the then superficially appealing claim that there was no need for such a constitutional change because of the idea of equality was both accepted and enshrined in law.

Well, whatever the truth of that back in 1982, the last year or so have shown the utter speciousness of that argument.  Things we thought were settled in this area just are not, and hostility to women’s rights remains a real and appealing force.

The news is that yesterday the Nevada Legislature actually passed the ERA!  (Some technical fixes, due in the next few days, are still reportedly needed.)  So, we need only two more states to get to the point that enough states have passed it that, had the enabling legislation not had a 1982 cut-off, the Amendment would have gone into force.  That does not make it the law, but would give the effort huge additional force.  As the LA Times also reports:

This year, Nevada was one of eight states with resolutions calling for ratification. But in six of those states — Utah, Arizona, Missouri, Virginia, Florida and North Carolina — at least one house of the legislature is controlled by Republicans, who have opposed ERA ratification.

Actually, I am somewhat surprised that the the Republicans continue affirmative opposition.  It seems to me that this is the perfect wedge issue, in that the Republican voters must be split on this issue.  Moreover, drawing national attention to it would be disastrous for the party as a whole, even if in some states it is still less toxic a position for them.  Amazingly, while being introduced every year into Congress, there has not been a floor vote since 1983.  Moreover, some non-ratification states have passed state versions.  Indeed, while some want an approach that removes the 1982 deadline by statute, I would argue that forcing Republicans in states that had already ratified to take stand again would be far more effective politically, and perhaps create unstoppable momentum very quickly.  For national figures this would be about as no-win as you can get.  (I wonder if there has been any poling on this recently?)

With so much at stake, one can see why this is not getting the attention it deserves.  But, I suspect that many newly angry women (and men) would find opposition to the ERA beyond their understanding or acquiescence today.

Lets hear it from, for, and in support of, Nasty Women.

Wikipedia has a good history of the ERA.

 

 

 

 

Posted in Constitution, Discrimination, Supreme Court | Leave a comment

A Tool For Assessing SRL Hearing Quality from the US Dept. of Labor

As state start to think about evaluating how their judges do in cases without lawyers, this might be a useful starting point.  It is US Department of Labor Handbook on measuring hearing quality in unemployment hearings (in which the vast majority of claimants, and many employers do not have representation).  The link is here.

At least initially, such evaluation might well be a general statewide self-evaluation, rather than any attempt to get a  handle on individuals.

By breaking down specific kinds of behavior and hearing attributes which might be assessed, the Handbook might offer a useful beginning.

Here are the areas for which scoring systems are recommended:

decision-ass

For example, here is the scoring system for the administrative judge explanation of the process (#1):

CRITERION 1: PRE-HEARING/PRE-TESTIMONY EXPLANATION.

PURPOSE – At the start of the hearing, the hearing officer should clearly explain the procedures to be followed. The elements shall be covered in the recorded prehearing explanation or opening statement. The explanation must be clearly stated and delivered in an understandable manner.

SCORING SEGMENT

Good (6):  After recording began and before testimony was taken, the hearing officer clearly explained the hearing procedures. This explanation included: (a) the order of testimony, (b) the right to question witnesses, and (c) an opportunity for each of the parties to ask questions about the hearing process or procedures.

Fair (3):   The hearing officer allowed an opportunity to ask questions about the hearing process or procedures, but did not explain all of the elements (a) through (c). Unsatisfactory (0):  The hearing officer did not explain the procedures or did not allow an opportunity to ask questions about the hearing process or procedures.

While, obviously, this whole issue is very very sensitive indeed, we have to recognize that cases without lawyers provide particular quality challenges.  When there are two lawyers in the room, it is a reasonable bet that a) the judge will be aware of the possible consequences of sub-par performance, and b) that serious problems will ultimately be bought to the relevant authority.  However, when there are no lawyers, things may be different.  (I remember appealing a parking ticket in San Francsico in the 1970s, and hearing the hearing officer, a retired cop, comment to a different appellant that, “I do not believe the officer would have issued a ticket if you had done nothing wrong.”  So much for neutral judging.

So, we need some method of quality control, and a system like this, in place in all states through US government standard setting for unemployment hearings, is a good place to start the discussion.

 

 

 

Posted in Administative Proecdure, Judicial Ethics, Metrics, Research and Evalation | Leave a comment

Yet Another Way to Challenge the Legal Sufficiency of the Trump Presidency — Competency to Sign Orders and Bills

There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).

The main problem is that while the VP would surely welcome such a development, can not be seen to doing so.

However, there is another legal mechanism.  Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it.  And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.

So,  what about all those Executive Orders?  What about any bill that might get passed?  How do we know if Trump had or will have the mental capacity to sign them.

Think about it this way.  As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes.  Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity?  Well maybe yes, maybe no.  But, more importantly, is it the case that under no theory could the case be made?  Not so sure at all.  Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will.  (Think of it as a will that gives away the whole country!)

While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach.  Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.

Any thoughts, folks?

Posted in Access to Justice Generally, Attorney-Client, Congress, Constitution, Supreme Court, White House | Leave a comment

Cop House Lawyers Ordered In Chicago

This could be the begining of a major change.  As few outside the criminal justice system know, in the US most people without resources do not get to talk to a lawyer until shortly before they see a judge.

That means that opportunities for early investigation, for getting the family in for the bail hearing, for preparing arguments for ail are all lost, with immeasurable negative impacts on poor defendants.

But now, as reported by the Hufffington Post:

Chief Judge Timothy Evans of the Circuit Court of Cook County signed an order Tuesday that would make a county public defender or a designated private attorney available to anyone who is in custody at one of the Chicago Police Department’s 22 stations with lockup facilities.

It is not clear from the article if the prosecutors or police have any objection or how the assistance is going to structured and coordinated, but the overall feeling is that the ducks are in a row for this important change.  I suspect a lot of behind the scenes negotiation.

I hope it will be properly researched, and the savings in jail time documented.  If so this could be the beginning of a very major change,finally bringing the US more in line with the rest of the higher income countries.

 

Posted in Bail, Chasm with Communities, Criminal Law, Defender Programs, Policing, Public Defender, Research and Evalation | Leave a comment

What Does It Say That Courts Records Are No Longer To Be Used For Credit Score Calculating and Reporting

What a judgment on the courts.  As reported by the Washington Post — (Kenneth R. Harney):

In a little-known policy shift, the three national credit bureaus — Equifax, Experian and TransUnion — plan to stop collecting and reporting substantial amounts of civil judgment and tax lien information on public records affecting millions of American consumers starting July 1.

OK.  But why?

In response to a request for this column, the bureaus’ national trade organization, the Consumer Data Industry Association, provided a statement indicating that the changes are part of the bureaus’ “National Consumer Assistance Plan” that follows a settlement in 2016 with 31 state attorneys general over alleged problems with credit reporting accuracy and correction of errors on credit reports.

Eric J. Ellman, the group’s interim president, said the bureaus have adopted “enhanced public record data standards for the collection and timely updating of civil judgments and tax liens.” The standards will apply to new and existing data in files and will require that the public records sources include the individual’s name, address and Social Security number or date of birth. Public records sources will also need to be updated on a timely basis to be eligible for inclusion in credit files. Most civil judgment data and up to half of tax lien information cannot currently meet these tests, according to one industry estimate.

In other words, the data is neither sufficiently identified, nor sufficiently up-to-date to be used in something as important as a credit score.

You do not have to be too much of a troublemaker to ask the obvious question:  So, how come its OK to use them for other things — like landlord eviction databases, and got knows what other purposes to which this data — now often public and aggregated — can be put to.

Surely this development makes those who make use of this data vulnerable to all kinds of claims, including defenses in particular situations, and affirmative litigation to reduce abusive practices.  And that’s without even getting into issues of warrants, arrests, fees, and the Ferguson Chasm.

This has to raise all kinds of uncomfortable questions for the courts — although it might help engender corporate and prosecutor support for court funding increases.

Good for the AGs.

(Thanks to David Udell for pointing this perspective out.  Maybe a court record reliability number should go in the Justice Index?)

 

 

Posted in Bankruptcy, Consumer Rights, Court Fees and Costs, Court Management, Debt Collction, Evictions, Foreclosure, Housing | 3 Comments

Wonderful Video on Self-Help Services Is a Tool to Ensure 100% Availability of this Key Service, and Introduces the Triage Concept

The Justice of All Strategic Planning Guidance, issued last August, identifies a number of basic services which should be available to all if 100% access is to be provided.  Obviously one of the most critical is universally available self-help services.

For those seeking to make that idea real, a nine minute video just released by the Public Welfare Foundation is a perfect tool.  The California courts explain the need for the services, how they are integrated with triage, and how they look day to day.  This includes the obvious need for help with forms, no matter now simple.

Above all, the totally commonsense non-ideological presentation (narration by Bonnie Hough) conveys the simplicity of the overall idea, and its utterly non-controversial essence.

I would urge everyone to watch it, and to present it to any group involved in any kind of access to justice planning.  It is particularly critical that those who are thinking of “For All” strategic planning make use of the video to get commitment from their group to include this in their core strategy and planning.  In making this argument, never forget to highlight the two for one match for child support self-help services available from the uncapped HHS Child Support Enforcement grant stream.  That can be used to fund an initial statewide infrastructure, that can then be expanded to other issues when the value of the approach is demonstrated.

Note: The video and others about access to justice, are also available at the PWF website, here.

 

Posted in 100% Access Strategy and Campaign, Forms, Funding, Self-Help Services, Triage | 1 Comment

CCJ/COSCA Letter to OMB on LSC Funding Highlights Bipartisan Support for Access to Justice

In response to recent stories that the Administration had LSC on a target list, perhaps the most powerfully bipartisan bodies in the US legal system chimed in in support for LSC funding.

The Presidents of the Conference of Chief Justices and the Conference Of State Court Administrators wrote on February 24 to the head of OMB, that:

[T}he Conferences urge OMB to promote stable and adequate funding of the LSC rather than a defunding.  .  .  .

Since the great recession in 2008, the Conferences have unanimously adopted several resolutions documenting the shortfall in civil legal aid and reaffirming the importance Census Bureau data show that nearly one in five Americans – 61.8 million people – are eligible for legal aid, a 21% increase since 2007.   In 2012, we called upon all members of Congress “to fulfill our nation’s promise of ‘Equal Justice Under Law’, by restoring funding for the federal Legal Services Corporation to the level necessary to provide critically needed services to low-income and vulnerable Americans.”  We have reason to believe these efforts have contributed to a stabilization and occasional modest increase in Congressional appropriations to LSC in recent fiscal years.  .  .  .

Our research makes clear that the large number of unrepresented citizens overwhelming the nation’s courts has negative consequences not only for them but also for the effectiveness and efficiency of courts striving to serve these and other segments of the community who need their disputes resolved.  More staff time is required to assist unrepresented parties.  In the absence of a fair presentation of relevant facts, court procedures are slowed, backlogs of other court cases occur, and judges confront the challenge of maintaining their impartiality while preventing injustice.  Clearly frontline judges are telling us that the adversarial foundation of our justice system is all too often losing its effectiveness when citizens are deprived of legal counsel.

Given these facts on the ground, we hope you will support our struggle to increase the availability of legal assistance to the most-needy members of our communities lest we further compromise our nation’s promise of “equal justice under law.”

The sustained work by LSC’s President Jim Sandman to build the bipartisan case, and indeed the extensive multi-organizational collaborations in support on access to justice generally that are now embedded into the justice system, help support much greater optimism about LSC’s future than might once have been the case.

There is a moral here for much of our work.  The credibility that the Chiefs bring to access to justice is one of our greatest assets, and we must make full use of that credibility, and must also remember the reciprocal obligations of respect that that support imposes on us.

Posted in Access to Justice Generally, Budget Issues, Census Bureau, Funding, Legal Aid, LSC, Political Support, White House | Leave a comment