Though the Confederate constitution made provisions for the existence of a supreme judicial court, with powers like those of the SUPREME COURT OF THE UNITED STATES, the pro-visional cong
Trang 1paying his or her share of the expenses incurred for maintenance or improvements of the common areas, regardless of whether the individual owner approves of the upkeep or improvements The size of the share of operat-ing, maintainoperat-ing, and improving costs of a building and common areas to be borne by an individual unit owner depends on the size of that owner’s unit, usually measured by the number of rooms in the unit
The three basic instruments used in the purchase of a condominium are a deed to the unit; a declaration of condominium; and the BYLAWS of the condominium association, the membership of which is composed of the units’ owners
An individual buying a condominium receives a deed, which must be duly recorded
in the appropriate county office Such deed ordinarily describes the individual unit, the building in which the unit is located, and the property upon which the building is con-structed Generally it will also embody all limitations or restrictions imposed on the use
of the unit and any other details agreed upon by the purchaser and seller The deed cannot contain any provision that is contrary to the rules of the condominium or declaration of condominium
The declaration of condominium is the official record of the owner’s rights and duties pursuant to receiving title to the condominium
It also states precisely what portions the owner
of a unit owns and must maintain State statute prescribes what must be included in the declaration of condominium These require-ments vary from one state to another, but a declaration of condominium must ordinarily contain the following: (a) a legal description of the land and buildings of the condominium, which is essentially the same information contained in the deed; (b) a description of each unit, including the address, size, number of rooms, and exact location within the building;
(c) a description of the common areas and any restrictions upon the use thereof; (d) the pecuniary worth of each unit of the
condomini-um and of the land under it, as well as the percentage of shares in the common areas assigned to each unit owner, usually based upon the number of rooms in his or her unit;
(e) the number of votes assigned to each unit
The declaration of condominium must also
state the procedure for making decisions concerning repairs, improvements, and similar costs, as well as provisions for amendment of the declaration or for ending the condominium arrangement The number of votes assigned to each unit owner is in proportion to that owner’s percentage share A declaration must also provide the procedures for owners’ payments
of fees and other costs and sanctions imposed for failure to pay them
Condominium unit owners must adhere to the regulations set forth in the bylaws The bylaws of a condominium—the rules and regulations by which the condominium associ-ation governs itself—are generally drafted by the developers of the condominium or the original purchasers of the individual units The bylaws ordinarily establish procedures for electing the officers or board members of the condominium association, conducting meetings, and handling routine building main-tenance and insurance for the common areas They prescribe any restrictions that may be imposed on the sale of individual units and penalties for violation of the rules
A condominium unit may be purchased for cash; however, the more common procedure is for a mortgage to be obtained to help finance it Since each unit is owned individually, if an owner defaults on mortgage payments or property taxes, no other unit owner is liable
Cooperative Organization
A cooperative can be created in a number of ways:
1 Corporate organization The most common type of cooperative organization is its corporate form Three documents are required for the formation of a corporate cooperative: a corporate charter or certifi-cate of incorporation; bylaws; and a proprietary lease or occupancy agreement These three instruments together constitute the contract between the individual owners and the corporation The relationship of the unit owners to the corporation is such that they are tenants as well as share-holders Corporate financing is ordinarily accomplished by a single mortgage executed
by the corporation, which covers the entire project Because separate mortgages on the individual units are uncommon, occupants are dependent upon the financial stability of their fellow occupants
78 CONDOMINIUMS AND COOPERATIVES
Trang 22 Co-ownership in JOINT TENANCY In a joint
tenancy title to the premises vests in all of
the co-owners as joint tenants, which
means that they have an undivided interest
coupled with aRIGHT OF SURVIVORSHIP Such
an arrangement includes provisions for
exclusive occupancy of individual units,
vested in designated co-owners This type
of plan is not often practicable, since there
must be four unities in a joint tenancy:
time, title, interest, and possession
3 TENANCY IN COMMON The occupants own the
entire project collectively as tenants IN
COMMON Each tenant is given the right to
occupy exclusively a specifically designated
unit A tenancy in common differs from a
joint tenancy in that each tenant owns an
undivided portion; however, the portions
are not necessarily equal In addition, each
tenant has theLEGAL RIGHTto dispose of his
or her undivided share or a portion thereof
by deed or by will Various covenants are
employed to enforce the financial
obliga-tions in maintenance and operation by the
co-tenants
4 BUSINESS TRUST In a business trust or
MASSACHUSETTS TRUST, title to the entire
premises vests in the trustees of the trust
Certificates ofBENEFICIAL INTERESTare issued
to the individual tenants, and each
benefi-cial owner is assigned an exclusive right of
occupancy of a specific unit under a
proprietary lease
Each tenant-shareholder may deduct on his
or her federal incomeTAX RETURNa
proportion-ate share of the interest that the cooperative
corporation has paid upon its blanket mortgage,
so long as the corporation does not obtain in
excess of 20 percent of its GROSS INCOME from
sources apart from its tenant-shareholders
FURTHER READINGS
Barton, Stephen E., and Carol J Silverman, eds 1994.
Common Interest Communities: Private Governments
and the Public Interest Berkeley: Univ of California
Press.
Hyatt, Wayne S 2006 Condominium and Homeowner
Association Practice: Community Association Law 3d
ed Philadelphia, PA: American Law Institute-American
Bar Association, Committee on Continuing Professional
Education.
Rohan, Patrick J 1999 “Preparing Community Associations
for the Twenty-First Century: Anticipating the Legal
Problems and Possible Solutions ” St John’s Law Review
73 (winter).
Thomsett, Michael C 1990 How to Buy a House, Condo, or Co-Op Mount Vernon, NY: Consumers Reports.
Trigiani, Lucia Anna 2002 Reinventing the Rules: A Step-By-Step Guide for Being Reasonable Alexandria, VA:
Community Associations Institute.
CROSS REFERENCES Community Property; Lease; Massachusetts Trust.
CONDONATION
In marriage, the voluntary pardoning by an innocent spouse of an offense committed by his or her partner conditioned upon the promise that it will not recur
Condonation, which is used as a defense in
DIVORCE actions based on fault grounds, is strongly supported by PUBLIC POLICY The institution of MARRIAGEand its preservation are considered essential for the stability of society, and therefore condonation is encouraged to promote the notion that marriages should not
be lightly dissolved
The elements of condonation are the resumption of normal marital relations after knowledge of the offense or offenses and the promise that the offense will not be repeated
Various cases have attempted to interpret whether or not condonation has actually taken place If, for example, a wife commitsADULTERY
and her husband, after discovering this, allows her to return to their home but does not resume normal marital relations with her, a full condonation has not taken place Whether or not a marital relationship has been fully resumed is generally considered to be aQUESTION
OF FACT in divorce cases
Whether or not condonation has taken place is important in the area of maintenance
or support obligations In many states, remedies for nonsupport will be granted only when there
is a showing that the husband has been guilty of
a serious marital offense If a husband who has committed such an offense can prove condona-tion, he can use this as a defense to his wife’s claim of nonsupport Similarly, condonation has important consequences in formulating the grounds for divorce If a woman’s husband has beaten her on a few occasions but she subsequently continued to cohabit with him, she might later be unable to sue for divorce on grounds ofCRUEL AND INHUMAN TREATMENT Some offenses, such asMENTAL CRUELTY, due
to their ongoing, continuous nature, may not be eliminated by a showing of condonation
CONDONATION 79
Trang 3CONFEDERACY The association or banding together of two or more persons for the purpose of committing an act
or furthering an enterprise that is forbidden by law, or that, though lawful in itself, becomes unlawful when made the object of the confederacy
More commonly called a conspiracy The union
of two or more independent states for the purpose
of common safety or a furtherance of their mutual goals
CONFEDERATE ATTORNEYS GENERAL
Following SECESSION from the Union, the Southern states immediately began the process
of establishing a separate government to guide their course One of the first acts of the provisional congress of the CONFEDERATE STATES
OF AMERICA was to preserve the force and framework of existing law in the South by adopting the Constitution of the Confederate States, which closely mirrored theCONSTITUTION
OF THE UNITED STATESof America
Though the Confederate constitution made provisions for the existence of a supreme judicial court, with powers like those of the
SUPREME COURT OF THE UNITED STATES, the pro-visional congress refused to enact the legislation necessary to actually establish the national court Therefore, the attorneys general of the
CONFEDERACYwere often called on to act in place
of a national tribunal and to render opinions interpreting the laws enacted by the Confederate congress Accordingly their opinions were varied, covering both commonplace issues and constitutional questions
From 1861 to 1865, the Confederacy was served by four full time attorneys general—
Judah Philip Benjamin, Thomas Bragg, Thomas Hill Watts, and George Davis—and by Wade Keyes, who functioned at various times as assistant, acting, and AD INTERIM (temporary) attorney general As a group, they authored 218 opinions for Confederate president Jefferson Davis and members of his cabinet; most of the opinions were requested by the Departments of War, Treasury, and the Navy, and most were related to the fighting of, or financing of, the Civil War
Judah Philip Benjamin JUDAH PHILIP BENJAMIN (1811–84) was the Con-federacy’s first attorney general Appointed by
President Davis, Benjamin was confirmed on March 5, 1861, and served until November 21,
1861, when he was named secretary of war As attorney general, he wrote 13 opinions on such matters as agricultural products tariffs, mail route contracts, and defense appropriations
Wade Keyes Jr
Wade Keyes Jr (1821–79) was named assistant attorney general by Benjamin on May 6, 1861
He became a central figure in the Confederate
DEPARTMENT OF JUSTICE, and he often assumed the responsibilities of the attorney general when the current appointee was absent or in times of transition
Before taking the position of assistant attorney general under Benjamin, Keyes was a prominent Alabama lawyer who specialized in property cases Born to wealth and privilege, he was educated at La Grange College and the University of Virginia His parents financed an extended tour of Europe and, on his return to the United States, arranged for him to study law with several noted Southern attorneys
Though Keyes directed his efforts to the
PRACTICE OF LAW and generally avoided politics,
he did hold public office for six years as chancellor of the Southern Division of Alabama
It was during his years in this office that Keyes was first noticed by Benjamin Benjamin, impressed with Chancellor Keyes’s administra-tive abilities, legal intellect, and writing skills, was instrumental in bringing Keyes into the newly formed Confederate Department of Justice
In the course of Keyes’s service to the Confederate president and cabinet, he authored
24 opinions—both for himself and for other attorneys general—on such diverse subjects as the duties of the attorney general; the treatment
of prisoners of war; and, drawing on his former area of expertise, the appropriation ofPERSONAL PROPERTY for the war effort Following Watts’s election as governor of Alabama and resignation
as attorney general, Keyes stepped in and served
as attorney general ad interim from October 2,
1863, to January 1, 1864, when George Davis was able to take the office
Thomas Bragg
Thomas Bragg (1810–72) was named attorney general on November 21, 1861, when Benjamin became secretary of war Bragg had been
80 CONFEDERACY
Trang 4attorney general for only four months and had
authored just seven opinions, when the
escalat-ing military conflict threatened his family and
his personal interests He resigned on March
18, 1862
Bragg was born on November 9, 1810,
in Warrenton, North Carolina, the son of
Thomas Bragg and Margaret Crossland Bragg
He attended local schools in Warrenton and a
military academy in Middletown, Connecticut,
before studying law in Warrenton with John
Hall, a North Carolina Supreme Court judge
Bragg was admitted to the bar and began the
practice of law in 1833 at the age of 23 On
October 4, 1837, he married Isabella Cuthbert,
the daughter of a locally prominent and
politically active family
Bragg continued to practice law for the next
several years, and he began to take an interest in
local politics He was elected to the North
Carolina legislature in 1844, and by 1854 he was
governor of the state After two highly
success-ful terms as governor, he was sent to the U.S
Senate, where he served until the secession of
North Carolina
In spite of Bragg’s brief service as attorney
general, he remained a friend of, and adviser to,
the Davis administration throughout the war
After the war, Bragg returned to practice in
North Carolina and tried, without success, to
restore the personal property and fortune he
had lost during the war years Bragg died on
January 21, 1872, in Raleigh, North Carolina
Thomas Hill Watts
On March 19, 1862, Thomas Hill Watts (1819–
92) was named to succeed Bragg as attorney
general He served more than a year, and he
wrote 99 opinions onMARTIAL LAW,
reorganiza-tion of the military under CONSCRIPTION, pay
allowances, rights of prisoners of war,
treason-able offenses, and many other issues related to
military service and the war
At the outbreak of the Civil War, Watts had
organized the Seventeenth Alabama Infantry
Regiment and served as its colonel He was
commanding the regiment in Tennessee when
he received the appointment as attorney general
Perhaps because of this background, he had a
special affinity for the men on the front lines of
the conflict and for men from his home state
He spent many hours visiting wounded Alabama
soldiers at nearby field hospitals and camps
Watts was born January 3, 1819, in Alabama Territory near the town of Greenville in present-day Butler County, Alabama He was a middle son in a family of modest means His parents, John Hughes Watts and Prudence Hill Watts, agreed to pay for his education at the University of Virginia if he agreed to forfeit any future claim to the family estate He thought the bargain was a good one, and he graduated in
1839 He studied law locally and was admitted
to the bar in 1840
On January 10, 1842, he married Eliza Brown Allen The Wattses had ten children
While practicing law and providing for his growing family, Watts served several terms in the Alabama legislature in the 1840s In 1850, he made an unsuccessful bid for a congressional seat
As war approached, Watts was an outspoken opponent of ABRAHAM LINCOLN and a firm believer in the right of an individual state to determine its future While serving as attorney general, Watts left the office in the hands of Keyes on several occasions in order to return home and tend to state business During the course of those visits, he decided to make a bid for the Alabama governorship in 1863 He was successful Following his election, he resigned his position as attorney general effective October
1, 1863
Watts’s term as governor of Alabama ended with the fall of the Confederacy For his part in the rebellion, Watts lost his personal fortune in land and slaves, and in 1865 he was sent to a Northern prison camp
Three years later he was pardoned by President ANDREW JOHNSON and permitted to return to Alabama to care for his ailing wife She died in 1873 Following her death, Watts moved
to Montgomery, Alabama, and resumed the practice of law He remarried in September
1875 Watts died in Montgomery on September
16, 1892
George Davis
George Davis (1820–96) took office as attorney general on January 2, 1864, and he served until the collapse of the Confederacy He authored 75 opinions on issues such as the constitutionality
of the conscription act, the legality of contracts for imports and exports, and the liability of the government for seized property and stored goods
CONFEDERATE ATTORNEYS GENERAL 81
Trang 5Davis was born March 1, 1820, at Porter’s Neck, New Hanover (now Pender) County, North Carolina His parents were Thomas Frederick Davis and Sarah Isabella Eagles Davis
He graduated first in the University of North Carolina class of 1838, and he was admitted to the bar in 1839
He became a prominent and respected member of the local legal community, as well
as a man of wealth and taste He was married,
on November 17, 1842, to Mary A Polk, and they had a large family
Davis had an early interest in politics, but as a
WHIG PARTYmember living in aDEMOCRATIC PARTY
stronghold, he had little opportunity to serve
Finally, when North Carolina withdrew from the Union, Davis was sent to the provisional congress as a DELEGATE from his state The following year, he entered the Confederate Senate, where he generally supported the admin-istration of the Confederate president It was from his position in the Confederate Senate that Davis was tapped by the president and asked to take the office of attorney general after Watts resigned Davis was unable to accept the office immediately, owing to the illness and subsequent death of his wife, so the position was temporarily filled by Keyes
Davis’s last act as attorney general was to advise the president and the cabinet to accept the terms of a presurrender agreement The agreement was not accepted by the Union After receiving word of General Robert E Lee’s surrender at Appomattox Courthouse, in Virgi-nia, the attorney general resigned and became a fugitive
Fleeing southward, Davis first sought to locate his children, who were staying with friends near Wilmington, North Carolina He managed to elude federal forces for a while but was eventually captured at Key West, Florida He was imprisoned and held until January 1, 1866
After his release, Davis returned to Wil-mington, North Carolina Just six months after leaving prison, he married Monimia Fairfax, on May 9, 1866 He resumed his legal practice and found himself in demand as a regional speaker
In the mid-1870s, he was offered, and declined, the chief justiceship of the North Carolina Supreme Court His last public appearance was
to deliver the eulogy at the 1889 funeral of Jefferson Davis George Davis died in Wilming-ton, North Carolina, on February 23, 1896
FURTHER READINGS Canfield, Cass 1981 The Iron Will of Jefferson Davis New York: Fairfax.
Catton, Bruce, and William Catton 2004 Two Roads to Sumter: Abraham Lincoln, Jefferson Davis and the March
to the Civil War Edison, NJ: Book Sales.
Eaton, Clement 2003 A History of the Confederacy New York: Textbook Publishers.
Patrick, Rembert W 1950 The Opinions of the Confederate Attorneys General, 1861–1865 Buffalo: Dennis Sandburg, Carl 2002 Abraham Lincoln: The War Years Boston: Mariner.
CROSS REFERENCES Confederacy; Secession.
CONFEDERATE STATES OF AMERICA The Confederate States of America was the name taken by the states that seceded from the government of the United States in 1860 and
1861 The catalyst for leaving the Union was the election of ABRAHAM LINCOLN as president The states feared that as a Republican, Lincoln would seek to restrict or even abolish SLAVERY Six states organized this new government in Montgomery, Alabama, in February 1861 South Carolina had left the Union in December 1860 and was followed in January 1861 by Alabama, Florida, Georgia, Louisiana, and Mississippi In March 1861, Texas seceded, and by the end of the year, Arkansas, North Carolina, Tennessee, and Virginia had also
The delegates to the organization of the
CONFEDERACY began on February 4, 1861, when they met in Montgomery to establish a tempo-rary government Jefferson Davis was elected president of the Confederacy and Alexander H Stephens was selected as vice president Their positions were temporary and were to last one year However, after the adoption of the con-stitution, both men were elected to six-year terms Six men became members of the first cabinet, and Montgomery was chosen as the temporary capital The Confederate Congress transferred the capital to Richmond, Virginia, in May 1861, following theSECESSIONof that state The Constitution of the Confederacy was adopted in March 1861 Most of this document was modeled on the U.S Constitution; in fact, much of the language was copied verbatim However, there were significant differences in a number of areas Though the new constitution maintained the existing prohibition against international slave trading, slavery was pro-tected One clause prevented a state from
82 CONFEDERATE STATES OF AMERICA
Trang 6barring slaveholders from moving their slaves
anywhere in the Confederacy or from
interfer-ing with a slaveholder’s property rights when
moving slaves from state to state This clause
was in response to the Dred Scott decision,
where it had been asserted that the slave Scott
became a freeman when he entered territory
where slavery was banned Even though the
Supreme Court had rejected this argument, the
drafters clearly wanted this rejection enshrined
in the constitution
Not surprisingly, the constitution endorsed
restrictions on the federal government The
southern states had chafed at federal legislation
that dealt with slavery and countered that most
powers resided with the states The constitution
prohibited Congress from appropriating funds
for internal improvements, enacting protective
trade tariffs, or giving bounties The president
was given the power to VETO single items in
appropriations, which in modern times is known
as the line item veto In turn, the Congress could
override a line item veto by a two-thirds vote
Other changes in the Constitution of the
Confederacy dealt with the EXECUTIVE BRANCH
The president and vice president were to be
elected to six-year terms instead of four-year
terms Most importantly, the president could
only serve one term In a break from the
SEPARATION OF POWERSconcept, cabinet members
were given seats in Congress and could
partici-pate in debates However, they could not vote
As for the legislative branch, the
constitu-tion placed restricconstitu-tions on its powers A state
could be admitted to the Confederacy only after
a two-thirds vote by both houses of Congress
The same two-thirds vote requirement was
applied to appropriations that were not
requested by members of the cabinet through
the president Curiously, the constitution did
not include a provision that allowed states to
secede ThePREAMBLEproclaimed that each state
acted“in its sovereign and independent
charac-ter,” but it also announced the creation of a
“permanent federal government.” A proposal to
include a secession clause was voted down 5-1,
with only South Carolina, the first state to
secede, voting in favor of it
Though the Constitution of the Confederacy
addressed in general terms a judicial branch,
divisions over the scope and breadth of federal
judicial power prevented the establishment or
the appointment of a Supreme Court The
southern states had objected to the growing power of the federal appellate bench to review state court decisions and state laws President Davis was able to appoint Confederate States district judges; in a number of cases, the U.S
district court judge simply shifted his title to the Confederacy
Several states bordering the North and the Deep South allowed slavery After the Civil War began on April 12, 1861, the Confederacy sought
to bring them into the government Though Arkansas, North Carolina, and Virginia agreed, Delaware, Kentucky, Maryland, and Missouri remained in the Union Later in the war, the western part of Virginia seceded from the Confederacy, becoming the state of West Virginia Secessionist groups created separate governments in Kentucky and Missouri and sent members to the Confederate Congress, even though both states stayed loyal to the Union
Though the governments of Brazil, Great Britain, France, Spain, and the Netherlands recognized the Confederate States of America, the recognition was not that of a nation but of a belligerent This meant that Confederate ships received the same privileges given to vessels of the United States in foreign ports or at sea
The Confederate Congress met throughout the Civil War, but it was a docile body, allowing President Davis to wield his war powers similarly
to those exercised by President Lincoln When the Union Army took Richmond in April 1865, the capital was moved to Danville, Virginia
Within days, however, the main fighting force, the Army of Northern Virginia, surrendered
at Appomattox, Virginia, bringing the Civil War
to a close
Following the war, the Confederate states were placed under federal control The states were readmitted to the Union under a plan announced by PresidentANDREW JOHNSON In the Proclamation of Amnesty, issued in May 1865, Johnson made “wealthy planters, bankers, and merchants,” along with Confederate govern-ment officials ineligible for pardons As for the
11 states, they had to end slavery, remove all secession ordinances, pay off Confederate debt, and ratify the THIRTEENTH AMENDMENT before being readmitted
FURTHER READINGS Channing, Steven 1974 Crisis of Fear: Secession in South Carolina New York: Norton.
CONFEDERATE STATES OF AMERICA 83
Trang 7Davis, William 1997 A Government of Our Own: The Making of the Confederacy Baton Rouge: Univ of Louisiana Press.
Thomas, Emery 1981 The Confederate Nation: 1861–1865.
New York: Harper.
CONFEDERATION
A union of states in which each member state retains some independent control over internal and external affairs Thus, for international pur-poses, there are separate states, not just one state
A federation, in contrast, is a union of states in which external affairs are controlled by a unified, central government
CONFERENCE OF CHIEF JUSTICES Improving the state judicial system is the mission of the Conference of Chief Justices
Founded in 1949 as an association of chief justices of state supreme courts, the conference tackles organizational, administrative, and pro-cedural issues at its biannual meetings and through standing and special committees It is governed by a board of directors Long regarded
as an austere group with narrow concerns, the conference emerged in a broader role in the 1990s Pressing concerns about a logjam of cases
in state courts led it to open a new partnership with federal courts, resulting in the first-ever meeting between the highest judicial officers of both court systems in 1990 More dramatically, the conference broke its long-standing silence
on politics: It entered a heated battle with the
JUSTICE DEPARTMENT over ethics rules, made outspoken attacks on federal health care and crime legislation, and began earnestlyLOBBYING
Congress This bolder identity caused ripples
in the legal community as the conference announced its willingness to be a political player with the help of its research and lobbying arm, the National Center for State Courts (NCSC)
Traditionally, the Conference of Chief Justices tended to looked inward Its member-ship includes, besides state supreme court justices, the highest judicial officers of the District of Columbia, Puerto Rico, and U.S
territories, and each jurisdiction has long faced similar concerns State court systems are simple only in appearance: Every system of trial, appellate, and supreme courts requires vast organizational resources The conference was founded to share ideas, compare methods, and brainstorm new solutions to managing these
behemoths From the 1970s to the mid-1990s, meetings addressed matters ranging from the expanding role of the court administrator to the problems of caseload management and rules and methods of procedure Not all these concerns were limited to the courts The conference reacted in dismay to the ruling in the 1984 case of Pulliam v Allen (466 U.S 522,
104 S Ct 1970, 80 L Ed 2d 565[1984]), which ignored the historic doctrine of judicial immu-nity and permitted attorneys to collect awards against state judges, and it began an ongoing lobbying effort that eventually led to Congress limiting such awards
The conference’s horizons had started to broaden in the 1980s, as changes in federal policy began overloading state courts The states have always handled the vast majority of civil and criminal cases, but the so-called war on drugs filled state court dockets with more cases than they could reasonably handle By 1990 the conference’s president, Chief Justice Vincent L McKusick, of the Supreme Judicial Court of Maine, noted that Arizona’s trial courts pro-cessed more drug cases annually than did all federal trial courts combined The conference’s response was to open a dialogue with the
JUDICIAL CONFERENCE OF THE UNITED STATES, its federal partner In September 1990 the highest officials of both systems met for the first time at the national level to address mutual concerns about drug and tort cases They formed the Federal-State Judicial Council to continue to seek solutions
By 1994 the conference was taking bolder steps in a long-running dispute with the Justice Department As far back as 1989, then attorney general RICHARD THORNBURGH had suggested changing the Justice Department’s code of ethics to stop following Rule 4.2 of the American Bar Association’s Model Rules of Professional Conduct Upheld by the states and most federal courts, this rule governs the communication of lawyers in disputes: It specifically bars lawyers from communicating with a party who is represented by another lawyer, without that lawyer’s consent The Justice Department believed that the rule hampered federal prosecutors in their investiga-tions, and in early 1994 Attorney GeneralJANET RENO said the U.S Constitution exempted federal prosecutors from the ethics rules of state bar associations In August 1994 the conference passed a resolution blasting the
84 CONFEDERATION
Trang 8Justice Department’s position and advising state
bars and supreme courts to enforce Rule 4.2
Conference members accused the department
of blatant illegality, and legal observers expected
the matter ultimately to end up before the U.S
Supreme Court
Although the conference had traditionally
refrained from taking overtly political positions,
members decided in 1994 to enter the fray Two
issues troubled them: health care reform and
the crime bill, both of which were put forward
by the administration of PresidentBILL CLINTON
Using the research facilities of the NCSC, the
conference claimed that health care reform
would fill state courts with 90 million new
claims And in a strongly worded resolution, it
lashed out at the original text of the crime bill
for“indiscriminate federalization of crimes, the
needless disruption of effective state and local
law enforcement efforts, and the inefficient use
of the special but limited resources of the
federal courts.” Going beyond harsh criticism,
the conference directed the NCSC to lobby
members of Congress in what became a
partially successful effort at trimming the bill
This departure from tradition excited the
legal community The National Law Journal
spotted“new-found muscle and aggression” in
the conference’s activities, and other observers
saw potential for the conference to become a
major player in political debate Not wishing to
be viewed as a partisan organization, the
conference itself vowed to limit its lobbying to
issues that affectedJUDICIAL ADMINISTRATION
The conference maintained a lower profile
between the mid-1990s and 2009, reaffirming
its commitment to improving the
administra-tion of justice In 2002 it passed a resoluadministra-tion
endorsing a report on public access to court
information that seeks to bring uniform
prac-tices to the judiciary In addition, the
confer-ence endorsed a resolution that seeks to make
the system more accessible to self-represented
litigants With the precipitous decline in state
government budgets in the early 2008 and 2009,
the conference began to explore how far the
judicial branch must go in sharing the financial
burden with the other two branches of
govern-ment The conference has called for more
funding for the courts Following Hurricane
Katrina, the 2005 natural disaster that devastated
New Orleans and a large swath of the Gulf Coast,
the conference took a leadership role in having
courts prepare for emergencies that make court facilities inoperable
FURTHER READINGS
“Chief Justices Meet, Grouse about Crime Bill.” 1994.
National Law Journal (February 28).
Conference of Chief Justices Resolution 33 Endorsing and Supporting Public Access to Court Records: Guidelines for Policy Development by State Courts (2002) Available online at www.ccj.ncsc.dni.us/resol33PublicAccess CourtRecords.html (accessed March 10, 2010).
“Feds, State Judges in Showdown.” 1994 National Law Journal (August 15).
National Center for State Courts Available online at www.
ncsconline.org (accessed October 11, 2009).
“State Court Chiefs Flex New Muscle—Chief Justices Conference Sheds Benign Image and Challenges Washington ” 1994 National Law Journal (October 17).
CONFERENCE OF STATE COURT ADMINISTRATORS Founded in 1955, the Conference of State Court Administrators is an association of the admin-istrators of state courts and the courts of the District of Columbia, Puerto Rico, and Guam
According to the conference, its purpose is “to deal with problems of state court systems.”
Toward that end, the conference tries to
nencourage the formulation of fundamental
policies, principles, and standards for state court administration
nfacilitate cooperation, consultation, and
exchange of information by and among national, state, and local offices and organizations directly concerned with court administration
nfoster the utilization of the principles and
techniques of modern management in the field of judicial administration
nimprove administrative practices and
pro-cedures in and increase the efficiency and effectiveness of all courts in the several states
The members of the conference are the principal court administrative officers of the several states, the Commonwealth of Puerto Rico, and any other jurisdiction that is elected
as a full member of the CONFERENCE OF CHIEF JUSTICES If any state or any other member jurisdiction of the Conference of Chief Justices does not have a duly appointed principal court administrative officer, the chief justice of that state or jurisdiction may designate an individual
to take part in the activities of the Conference of
CONFERENCE OF STATE COURT ADMINISTRATORS 85
Trang 9State Court Administrators in an associate member status An associate member is not eligible to vote or hold office Serving as the secretariat is the National Center for State Courts It publishes State Judiciary News and holds annual meetings
CONFERENCE ON PERSONAL FINANCE LAW
The CONFERENCE ON PERSONAL FINANCE LAW was founded in 1927 to encourage study, research, and education in the area of personal finance law Its members are lawyers The conference disseminates information on the history and current status of laws and regulations pertaining
to personal finance, provides a forum for exchange of views on the subject among lawyers
in the hope of stimulating improvement of legal procedures, and fosters sound development of consumer finance through education and publi-cation The conference stages an annual argu-ment before the supreme court of the mythical state of Franklin in order to dramatize an important issue in the field ofCONSUMER CREDIT The conference publishes Quarterly Report and programs and briefs related to the annual argument, which is staged during theAMERICAN BAR ASSOCIATIONannual meeting
CONFESSION
A statement by which an individual acknowledges his or her guilt in the commission of a crime
One vital function of the U.S judicial system is to determine the guilt or innocence
of suspects who have been accused of crimes
Confessions can play a key role in making this determination Courts in the U.S have recog-nized the fallibility of inaccurate or involuntary confessions—such as those that have been obtained as the result of threats or trickery—
and have developed a body of law to prevent untrustworthy confessions from jeopardizing a criminal defendant’sCIVIL RIGHTS
Confessions were always allowed as evidence
in early English common-law trials, even when torture was used to elicit them Not until the mid–eighteenth century did judges in England start to admit only confessions that they deemed trustworthy To determine the trustworthiness
of a confession, judges considered the circum-stances surrounding it, whether a threat or
promise coerced the suspect to confess, and whether the suspect confessed voluntarily The U.S Supreme Court first addressed the issue of confessions in the 1884 case of Hopt v Utah, 110 U.S 574, 4 S Ct 202, 28 L Ed 262 Following the English common-law standard, the Court looked at whether the suspect had confessed voluntarily or as a result of a threat or promise The Court first invoked the U.S Constitution to support this voluntariness stan-dard in the 1897 case of Bram v United States,
168 U.S 532, 18 S Ct 183, 42 L Ed 568
In Bram, the Court applied the FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
to confessions in federal courts, observing that any amount of influence exerted to obtain a confession would render the confession invol-untary and thusINADMISSIBLE The Bram holding initially created a harsh standard of confession admissibility Later decisions interpreting Bram lowered the standard by requiring that a confession be excluded from evidence only if the amount of influence that had been used to obtain it actually called into question the statement’s reliability
In 1936, the U.S Supreme Court considered the issue of coerced confessions for actions in state court, rather than federal court, in Brown
v Mississippi, 297 U.S 278, 56 S Ct 461, 80 L
Ed 682 Brown involved three African American defendants who had confessed to theMURDERof
a white man only after being beaten and tortured by state police The Court, this time, invoked the Fourteenth Amendment’s due process guarantee in holding the confessions
to be inadmissible because the police had obtained them in a way that violated basic liberty and justice principles The Court in Brown announced a due process analysis to be employed by state courts on a case-by-case basis
to determine whether, given the totality of the circumstances, a suspect had confessed volun-tarily The analysis was to include an assessment
of the suspect’s character and status as well as of the methods used by the police
Case-by-case determination of the kind required by Brown proved to be unwieldy for state courts because the method was so fact-specific Appellate courts had difficulty setting effective precedents because case outcomes depended solely on unique factual circum-stances As a result, the police were left with little guidance as to thew way to interrogate suspects properly and lawfully
86 CONFERENCE ON PERSONAL FINANCE LAW
Trang 10By the mid-1960s the U.S Supreme Court
once again began to alter its approach to
determining the admissibility of confessions
Starting with Malloy v Hogan, 378 U.S 1, 84 S
Ct 1489, 12 L Ed 2d 653 (1964), the Court
held that the Fifth Amendment privilege against
SELF-INCRIMINATION, which previously had
ap-plied only to federal actions, now apap-plied to
state actions as well Thus, the Court held,
suspects in state court were entitled to the same
standards governing confessions—initially set
forth in the Bram opinion—as were suspects in
federal court
InMASSIAH V.UNITED STATES, 377 U.S 201, 84
S Ct 1199, 12 L Ed 2d 246 (1964), the Court
continued to move away from the FOURTEENTH
AMENDMENT due process analysis that it had
employed in its previous decisions In Massiah,
the Court held that theSIXTH AMENDMENTgrants
criminal defendants theRIGHT TO COUNSELduring
post-indictment interrogations, and when this
right is violated, confessions obtained are
inadmissible In ESCOBEDO V ILLINOIS, 378 U.S
478, 84 S Ct 1758, 12 L Ed 2d 977 (1964), the
Court expanded this protection to
pre-indict-ment confessions, holding that the right to
counsel attaches when a police investigation
becomes accusatory
Two years later, the Court handed down the
landmark decisionMIRANDA V.ARIZONA, 384 U.S
436, 86 S Ct 1602, 16 L Ed 2d 694 (1966),
finding that police custody is inherently
coer-cive, and therefore that criminal suspects in
police custody must be informed expressly of
their constitutional rights before interrogation
begins A suspect’s Miranda rights include the
right to remain silent and to have a lawyer
present during questioning Any statements
made by the suspect may be used against him
or her in a court of law The Court held in
Miranda that a suspect may waive any of these
rights, but only if the waiver is made voluntarily,
knowingly, and intelligently But Miranda left
these criteria essentially undefined, thus
prompt-ing a glut ofLITIGATIONconcerning the validity of
Miranda waivers
The Court attempted to clarify its position
in North Carolina v Butler, 441 U.S 369, 99 S
Ct 1755, 60 L Ed 286 (1979) Willie Thomas
Butler had spoken with the police after they had
advised him of his Miranda rights, then later
sought to have the court exclude his
incrimi-nating statements because he had declined to
sign a waiver agreement In ruling against
Butler, the high court adopted the totality-of-the-circumstances approach for determining whether a waiver of Miranda rights is voluntary, knowing, and intelligent Butler, the Court found, had implied a voluntary waiver through his words and actions, thus making an express written waiver unnecessary Butler thus required courts to determine the voluntariness of a suspect’s waiver case by case Butler further instructed courts to invalidate seemingly volun-tary waivers in instances of apparent COERCION, deceit, or trickery on the part of police
Another attempt at clarification came in Moran v Burbine, 475 U.S 412, 106 S Ct 1135,
89 L Ed 2d 410 (1986), in which the Court held that the suspect’s confession had been voluntary and valid even though the police, after reciting Miranda rights, had failed to inform him that his attorney had been trying to contact him The Court in Burbine found that although the police have a duty to convey Miranda rights, including the right to an attorney, there is no constitutional duty to inform a suspect when that suspect’s attorney wants to confer The Court further held that Miranda rights belong
to the suspect, and therefore it was irrelevant that the police in Burbine had deceived the suspect’s attorney by falsely stating that they would not interrogate the suspect Burbine invoked a two-pronged test for courts to apply
in determining waiver validity: (1) whether the suspect’s choice to waive Miranda rights was free and uncoerced; and (2) whether the suspect fully understood the consequences of waiving those rights
Nine months later the Court refined Burbine’s first prong in Colorado v Connelly,
479 U.S 157, 107 S Ct 515, 93 L Ed 2d 473 (1986) Francis Barry Connelly, who was diagnosed as schizophrenic, made unsolicited murder confessions to the police while he was in
a psychotic state He continued to talk even after the police read him the Miranda rights In attempting to exclude the confession at trial, Connelly’s attorney argued that Connelly had
no control over his psychotic delusions, and that the confession therefore had been involuntary
Finding no police misconduct, the high court ruled against Connelly, stating that
“Miranda protects defendants against govern-ment coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Connelly suggests that the voluntariness of a waiver depends on the
CONFESSION 87