Saturday, September 24, 2011

Allowing recorders in court

New Jersey now allows people to record in court:
The New Jersey Supreme Court's Bench-Bar-Media Committee is pitching new rules that would establish a presumption of permissibility for using electronic devices in court, albeit with prior approval.

The subcommittee report, approved by the full committee and forwarded to Chief Justice Stuart Rabner on July 14, proposes a consistent procedural framework for allowing such devices in the courts, including the Superior Court, the Appellate Division, the Supreme Court, the Tax Court, and the municipal courts.

The proposed revisions recognize that the general right to use devices with recording capabilities is "no longer a right limited to the media," says subcommittee chairman Thomas Cafferty, a partner at Gibbons in Newark and general counsel for the New Jersey Press Association.
This is inevitable. In a few years, people will think that it is bizarre that recorders were ever banned in court.


Anonymous said...

Since we no longer have any way of verifying what happened in court - no court reporters because of budget cuts - this would be one way of rectifiying the problem. Then again, I think perhaps in County Cruz County courts, they don't want official records of what a judge said.

Anonymous said...

Sorry to be negative about the prospect of recorders being allowed into family law court.

As Baskerville points out....

Perhaps most startling is that by some accounts they claim to be exempt from the U.S. Constitution. Family courts describe themselves as courts of "equity" or "chancery" rather than "law," implying they are not necessarily bound by due process, and the rules of evidence are not as stringent as in criminal courts. As one father reports being told by the chief investigator for the administrator of the courts in New Jersey, investigating a complaint in 1998: "The provisions of the U.S. Constitution do not apply in domestic relations cases since they are determined in a court of equity rather than court of law." A connected rule, known as the "domestic relations exception," prevents federal courts exercising constitutional review over family law cases.

So, if F.L. is not a court of law, then the laws of the courts will never apply to them, perhaps ?

Anonymous said...

where would you find the "domestics relations exemption" for federal overview? Is it in the Fed Regs or is that a court case citation? Would be worth checking out.

If it's a fed reg then we're looking at a long and difficult challenge to change that because that goes through Congress, which means we'll have to take up a big collection to buy a few representatives and senators. Seriously.

Anonymous said...

here's what was in George's blog about it...

The domestic relations exception
A reader explains why federal courts don't hear cases like mine:
The federal courts have never considered a case involving the allocation of child custody (or other parental rights) between the child's two parents. In all federal cases involving parental rights, either the child had only one surviving parent, or the two parents were on the same side and were asserting the same right and remedy.

This is because all federal courts recognize a "domestic relations exception" to federal jurisdiction. The exception was first announced in 1859 when the Supreme Court declared federal courts may not hear any cases involving divorce or alimony. In 1890 the Supreme Court extended the exception to cases involving child custody as well. The exception was reaffirmed in this 1992 case, which summarized the history.
On further research, it turns out that federal judges dismiss cases unless there is something called federal jurisdiction. Back in 1859, almost all the federal cases were pleaded on the basis of 28 USC 1332, "diversity of citizenship" (plaintiff and defendant were citizens of different states). Nowadays, most federal cases are based on some alleged violation of federal law, as stated in 28 USC 1331.

The 9th Circuit federal appeals court (for a region including California) just ruled in Atwood v Fort Peck Tribal Court (Jan. 2008) that:
We hold that the "domestic relations exception," a doctrine divesting the federal courts of jurisdiction, applies only to the diversity jurisdiction statute, 28 U.S.C. § 1332, and that the district court erred by applying the domestic relations exception because federal question jurisdiction exists in this case under 28 U.S.C. § 1331. We affirm the district court's dismissal nonetheless, because Plaintiff failed to exhaust tribal court remedies.
The reader responded:
This is an encouraging development, but you're still confronted with a now 150-year-old principle that federal courts will not entertain lawsuits involving domestic relations, divorce, alimony, or child custody.

I previously noted that the domestic relations exception was originally created for "diversity" cases, and to my knowledge was never extended to "federal question" cases. Nevertheless, as this case shows, federal courts will likely find some other reason to dismiss domestic relations cases - such as the need to exhaust non-federal remedies. They just don't want to hear these cases!
Yeah, judges don't want to hear these cases. Deep down I think that they realize that meddling judges usually make things worse.

But federal jurisdiction is defined by Congress, and the law says that the federal courts do have jurisdiction over denials of constitutional rights. In my opinion, Commissioner Irwin H. Joseph has denied me my constitutional rights. If I cannot get the matter corrected, I will eventually ask a federal judge to rule on the matter.
Posted by George at 2:00 PM
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Labels: court, custody, judges