California State Bar Driving Solutions to Crisis in the State Courts

By Patrick Kelly, Guest Alumni Blogger

Regarding the crisis in the courts that I discussed in my previous blog post, I have been asked "What is the Bar doing about it?" The answer is: The Bar as an agency of the government can only take limited action; however, it is strongly supporting the work of the Bench-Bar Coalition and the Open Courts Coalition that exist for the sole purpose of keeping the courts open for the public through increased funding. I am on the steering committee of the latter group, chaired by Paul Kiesel and Naill McCarthy, and we are working together to facilitate budget discussions between the various departments of the court.

More importantly, we have been regularly meeting with court officials, representatives of the executive branch and legislators. For example, on March 11, both the BBC and the OCC traveled to Sacramento to meet with legislators and support the court by attending the Chief Justice's State of the Court address. I personally met with many legislators, including the chair of the Assembly Judiciary Committee, to underscore the crisis and secure full funding for our courts. I am pleased to say that everyone with whom we met understands the importance of the issue to their constituents and agrees we are at risk of losing many of the benefits of our justice system. To a person they support increased funding for the courts.

The question remains, "Where do we get the money?" That can be answered in part by using part of the budget surplus we have been told will exist. However, the real answer is for the executive and legislative branches to elevate the judicial branch to the very top of their priority scale. Why? The answer is simple: The court system is the gatekeeper for the rights of all Californians. It provides the only vehicle to enforce their rights under all of the other programs and agencies the legislature funds. All of the bills and laws in the world make no difference if there is no viable court system to enforce them. Thus the separate branch of government that is our justice system is integral to all other laws and programs, and indeed they cannot exist without it. Stated otherwise, although only taking 1 percent of the state's general fund, the courts must remain available to enforce 100 percent of the rights of 100 percent of Californians no matter what the right or law they are seeking to enforce.

What can you do to help ameliorate this crisis? We must come together to reach out to the legislature and the executive branch and to enlist the aid of community organizations in this quest. Now is the time to call your assembly members and senators and let them know how important this issue is to their constituents who even now are being denied their constitutional right to access to justice. Your voice will count.

Patrick Kelly is the Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP and president of the California State Bar. A recipient of Loyola's Distinguished Alumni Award, he sits on the board of the Law School's Advocacy Institute and was elected to the Law School's Board of Overseers.

And That's What 'Glee' Missed on 'Glee'

By Associate Dean Michael Waterstone

This op-ed originally appeared in the April 24, 2013 edition of the Daily Journal.

Last week's episode of the popular TV show "Glee" dealt with the issue of gun violence. At the high school where the show is set, two random gun shots are fired. Terrified, everyone shelters in place until the SWAT team gives the all clear. Police search for the culprit. Later, it is revealed that the shots were inadvertently fired by Becky, a character with Down's syndrome. Scared and frustrated that her high school experience was ending, and facing what she believed to be an uncertain future, she decided to bring a gun to school.

"Glee" has received praise and awards for how it contributes to society's understanding of people with disabilities. One of the main characters on "Glee," Artie, uses a wheelchair (although the actor who plays Artie does not). The show has gracefully managed the line between highlighting how thoughtless socially constructed barriers can make Arnie's life difficult, but for the most part, he is just one of the gang going through what all the characters go through: falling in love, deciding what he wants to be, and always singing and dancing. Similarly, having Becky, a character (and actor) with Down's syndrome, allows an exploration of the sometimes stigmatizing ways in which people perceive her, while also allowing her to be a high school student trying to find her way in life. The show does not revolve around these disabilities, but neither does it ignore them.

What's at stake in Metrish v. Lancaster

By Associate Visiting Clinical Professor Lara Bazelon

In the Supreme Court case of Metrish v. Lancaster, the state appeals the finding of the Sixth Circuit's grant of habeas relief to Burt Lancaster (no relation to the actor), who was twice tried and found guilty for the murder of his girlfriend. In the first trial, Lancaster raised both insanity and diminished capacity defenses. The jury rejected both, but because of an unrelated constitutional error, the conviction was set aside.

At the second trial, Lancaster again sought to raise the insanity defense. In the interim, however, the Michigan Supreme Court abolished the defense. That decision was applied to Lancaster retroactively. Lancaster was once again convicted and sentenced to life in prison.

After exhausting his state court appeals, Lancaster filed a writ of habeas corpus in federal court. Lancaster lost in the district court, but prevailed before a divided panel of Sixth Circuit judges, which granted the writ after finding that Lancaster's due process rights were violated.

To find in Lancaster's favor, the panel had to clear two exceptionally high hurdles erected by the United States Supreme Court's retroactivity and habeas jurisprudence. On the retroactivity front, the court of appeals had to find that the Michigan courts' abolition of the diminished capacity defense was "unexpected and indefensible." On the habeas front, the bar was even higher: the Sixth Circuit had to find that the Michigan courts' decision to apply retroactively to Lancaster its "unexpected and indefensible" decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" among reasonable jurists.

You may be wondering exactly what kind of habeas petitioner could possibly prevail under either standard, much less both. I'm not sure I know the answer, but I'm pretty sure it isn't Lancaster.

The dissenting judge on the Sixth Circuit panel laid bare the shaky foundations of her colleagues' opinion. Simply put, the majority could not overcome a standard of review so highly deferential that it allowed federal judges to grant relief to state court petitioners only in cases of "extreme malfunctions in the states' criminal justice systems."

My take: This dissent, coupled with SCOTUS' decision to grant cert, signals swift reversal.

Attraverso Review: Antifragile: Things That Gain from Disorder by Nassim Nicholas Taleb

By Professor Jeffery Atik

Nassim Nicholas Taleb is back, and in his new book he asserts that his signature idea was not The Black Swan (that was so last book), but rather Antifragility. This second idea shares a viral quality with the first; like the Black Swan, once you catch the notion of antifragility, it's hard to get rid of it.

Antifragility is the characteristic of certain systems to grow stronger when stressed; it is the mirror concept to fragility (where stress destroys). Exercise stresses our muscles, and so renders us stronger. As Taleb insists, antifragility is not robustness -- robustness is merely resistance to stress. Stress improves the antifragile. And in a world where stresses cannot be avoided, it is better to be antifragile.

I admit to being a Taleb fan -- and not everyone is. Most all -- critics and admirers -- agree he is an engaging and imaginative thinker. But he does seem to go out of his way to be, shall we say, difficult. Antifragile is an odd book -- it is a collection of personal essays mixed with some rather formal decision theory. That said, the personal (and the fictional) do serve the argument.

Taleb sees antifragility everywhere. Indeed, he is an avid antifragility spotter -- which results in no small amount of quirkiness in his personal life. At times Taleb convinces, at times he doesn't -- as his examples (or speculations) range from finance to picking bar fights to drinking too much wine. And so we get views of Taleb's various cantankerous postures. Physicians by and large do more harm than good (as they are compelled to do something) -- and so should be avoided outside of dire emergency. Universities are dangerous -- better to wander in a library.

As Taleb would concede, there are many more instances of fragile systems than antifragile ones. So a large part of the book is exploring the roots of fragility -- and possible moves to avoid fragility's dangers. Taleb provides a host of tantalizing heuristics -- take small over large, simple over complex, acute stress over chronic stress, the natural over the artificial. Old technologies are to be prefered over new ones -- as those technologies that have already survived the stresses of experience are more likely to remain viable (this is an example of the Lindy effect). It is no surprise that Taleb writes with a fountain pen. Of course Taleb may be wrong in particular instances. I suppose his cardiologist (if he has one) is horrified by his binging diet and his disdain for statins.

Introducing Guest Alumni Blogger Pat Kelly

I am excited to introduce our second guest alumni blogger. We are proud to welcome Pat Kelly '69 to our Summary Judgments blog. In addition to being a Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP, Pat is the current President of the California State Bar. He is also a member of the Law School's Board of
Overseers. We are looking forward to having Pat blog about many of the important issues facing the bar, including the court funding crisis.

-Associate Dean Michael Waterstone

Court Funding is Biggest Barrier to Justice for Citizens

Patrick Kelly, Guest Alumni Blogger

I believe the current court funding crisis is the greatest threat to our justice system and access to justice for our citizens I have seen in my 42 years of practice. I have focused upon this as the number one issue affecting the public and lawyers in California and have made it an integral part of every speech and discussion I have had since taking office in October. Examples of the carnage caused by these funding cuts exist everywhere in
California -- seven courthouse closures in Fresno, four courthouse closures in San Bernardino County and 10 courthouse closures in Los Angeles County, just to name a few examples.

The real toll is to the users of our courts -- the citizens of California who have a constitutional right to full and fair access to our justice system. Not only are we losing the neighborhood court system that provided access to all, but also user fees have escalated to the point that we are moving toward a disastrous pay-for-play system that is certainly not what the framers of our Constitution had in mind when they defined our rights. Moreover, the framers of our Constitution could not have envisioned a system where the rich have access through private judging whereas those less affluent and the poor have to stand in a line that because of a decline in resources is growing longer. These cuts have also threatened small businesses, the very engine of
California's economic recovery. The importance of this issue cannot be overstated. Paraphrasing Alan Greenspan, one of the key elements of business growth is ready access to a justice system that provides prompt dispute resolution.

Some argue that despite the budget cuts to the branch over the past few years, the funding has remained relatively stable due to the use of backup funds. That statement does not even scratch the surface of the whole story and implies that somehow the courthouse closures and longer lines don't exist. The truth is that while other states that fund courts generally spend about 2 percent of their general fund on the court system, in California it is 1 percent. In fact, the share of court funding that comes from the state general fund in California has fallen from 56 percent to 20 percent since 2008.

As noted, much of the money used to yield the impression of "stability" has come from redirection of court construction funds into court operations ($891 million since 2008); mandatory spend down of reserves ($500 million); redirection of funds intended for statewide court programs ($414 million); and increases in user fees ($397 million). Thus the fact is "stability" has left the court with a decimated construction and maintenance program, an almost complete loss of reserve funds necessary for court operations and a much higher cost for access to the long courthouse lines. And it gets worse. The ability to take courthouse construction funds is almost over and there is little left in reserves. In short, the money movement devices have now run out and the state will have to step up or we have only seen the tip of a much bigger iceberg of courthouse closures and staff layoffs. All of this leads to the inescapable conclusion that justice is being denied, and the magnitude of that denial is growing with each passing day.

Next week: How to solve the crisis...

Patrick Kelly is the Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP and president of the California State Bar. A recipient of Loyola's Distinguished Alumni Award, he sits on the board of the Law School's Advocacy Institute and was elected to the Law School's Board of Overseers.

Attraverso Review: The Bankers' New Clothes: What's Wrong with Banking and What to Do about It by Anat Admati and Martin Hellwig

By Professor Jeffery Atik

I have the odd habit, with academic writing, of first reading the notes and then returning to the central text. I like to see the foundation of a work. Would that I had read the notes to The Bankers' New Clothes first!

For The Bankers' New Clothes is really two books which I had read in sequence (slave as I was to the Kindle's primitive formatting). The first book -- the primary text of 228 pages -- seemed simple-minded, sometimes shrill and often tedious. It argues for a significant increase in the amount of 'capital' (a specialized term in banking regulation) banks should maintain. The second book - the 107 pages of dense notes -- reveals a much more subtle, more flexible and more open understanding of the issues. This 'book' is more useful and persuasive. I recently heard co-author Anat Admati speak in Los Angeles. She described her surprise when first viewing the book as published, that it was so 'short' when the notes were stripped away and shuttled to the back of the book. It matters (Kindle take note) how books are presented; I would have had a better impression on my first read had these rich notes been on the page or gathered at the end of each chapter. And perhaps these authors will speak up the next time they write for the broader public.

Admati and Hellwig are on a mission. They fervently believe that banks should be required to hold more capital than present rules require. And by more, they mean much much more. From current rules that require, depending of the measure, 3 to 7 percent of a bank's assets, to something on the order of 20 to 30 percent. They demonstrate that such higher levels of capital (think of this like the ratio of equity to the fair market value of a house) would significantly increase the robustness of the entire banking system, relieving the state from facing new rounds of bailouts. Moreover, as the leverage of bank's decrease, banks will be less likely to attract the risk-seeking buccaneers that have managed our great financial institutions into the ground.

Most of the argument here is negative -- Admati and Hellwig counter the various claims promoted by bankers to justify the maintenance of low pre-Crisis levels of mandatory capital. Leverage is good, of course, for bankers -- they quickly harvest a good deal of the upside (through compensation) and, together with depositors and bondholders, largely escape the downside due to government supports, including ex post bailouts. In such a topsy-turvy world, management would be dim to resist gambling wildly on high risk, high yield plays.

Prof. Natapoff's "Misdemeanors" article honored with 2013 Law and Society Association Article Prize

Professor Alexandra Natapoff was honored with the 2013 Law and Society Association Article Prize for her law review article "Misdemeanors," which was published by the Southern California Law Review.

Abstract:

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., "criminalized," with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system's dynamics and dysfunctions.