Administrative Appeals

The Volokh Conspiracy has post up about Strine v. Delaware Coalition for Open Government, Inc., a case the tests whether a Delaware statute that provides that judges may act as arbitrators in civil cases is constitutional under the First Amendment where the arbitration sessions are closed to the public.

Professor Volokh give a little background about the first amendment and the courtroom setting:

Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).

His background goes on to discuss Presley v. Georgia, a per curium opinion that held that a restriction on access to a DeKalb County, Georgia, courtroom during voir dire was unconstitutional.

A more interesting Supreme Court case might be made of the typical rural Georgia habeas corpus proceeding. It’s rare that I attend a habeas proceeding inside a courthouse anymore. There has been a move to conduct habeas proceedings inside of day rooms, cafeterias, and faux courtrooms inside the prison.

A recent habeas hearing I attended may illustrate the experience. The courtroom was inside a secured building with rows of fencing and razor wire. To get in, I had to push a button and announce over an intercom that I was a lawyer with a case. The gate opened, and I made my way into the area where I surrendered my car keys and identification for a visitor’s badge. A door made of bars slid open as I entered. Then I went through two sets of locking doors to find the courtroom, where a folding cafeteria table served as the judge’s bench and attorneys and witnesses were provided with plastic chairs. To be fair, I suppose that members of the public may have been let in had they just shown up and requested access. But the setting didn’t seem like an open courtroom. For one, we were not in the county seat. For another matter, we were in a privately-owned prison. The deputies and bailiffs were corporate corrections officials. Our courtroom did not bear the seal of the State of Georgia. Rather, a birthday banner celebrating the facility’s fifteenth birthday (who knew that prisons were born) was hung behind the judge.

Counsel for habeas petitioner must choose our battles. The battle is uphill as it is. I’ve never brought a first amendment challenge to the setting of habeas proceedings inside of prisons. If, for no other reason, I’ve anticipated the response might be, “Very well, Mr. Key. We will move Mr. Smith’s case over to the courthouse. Let’s see how your hearing goes now.” The last sentence in might not be spoken aloud. The judge’s response might be that any member of the public brave enough to walk the gauntlet into the courtroom would be welcome to attend the proceedings. Therefore they are open.

I’ve never had the right set if facts or the desire to sacrifice my client’s possible chances of success in a habeas year to the First Amendment principle. But there may be such a principle at stake in some of these proceedings.

In the past year, I have worked on a new category of appeal in an area that did not exist when I came out of law school and was in its infancy when I started focusing on appellate law. Those appeals have been in a Georgia administrative agency called the Sexual Offender Registration Review Board.
That agency doesn’t decide who should be a sex offender (the legislature has done that). It doesn’t punish people who fail to register or abide by residency and work restrictions.

Rather, the agency rates sex offenders and determines into which of three possible categories they should fall. Level One offenders are those who can one day, upon proper petition and with a judge’s permission, come off the registry. Level Two offenders will have a tougher time getting off of the registry.The third category consists of Sexually Dangerous Predators. These folks are required to wear an ankle monitor for the rest of their lives with GPS tracking. As another lawyer in my office tells it to perspective clients: the last thing they do after you die and before they put your body in the casket is cut the monitor off of your leg. The software that probation officers use to track offenders is set to allow for real time monitoring. It also sends an alert if somebody tampers with the monitors or removes it or if a person goes into a restricted zone such as a school, daycare center, or park. The monitor itself goes on the ankle and is about the size of a late 90s Nokia cell phone (bigger than the one in the picture).

There are three times when a lawyer will get called about the Board. Those include when a person has just been convicted of a sex offense and is worried about how he might be classified; when a person is interested in coming off the registry and has never been leveled; and when a person has been leveled a sexually dangerous predator. I typically get called in the second and third situation, though the first would probably be the best from a preventative standpoint. Many newly minted sex offenders probably don’t know that this agency even exists. The vast majority are Level One. If you are Level One, you get a letter telling you that and your life probably is not going to change very much. If you are leveled a sexually dangerous predator, you get a letter and a call to your probation officer. Life is about to get a whole lot worse.

That’s generally where I’ve come in over the past year. A client has had an ankle monitor put on his leg and a letter notifying him that he’s a Sexually Dangerous Predator. He wants to know what to do. The first step is a request for re-evaluation. There are tight deadlines that you can look up, or that (better yet) a lawyer can help you out with. There’s a deadline for initial materials and another for supporting documents.

A couple of things to know about the Board. For a board with such power to change the lives of the people it evaluates, it does not have a bureaucratic feel to it.

  • It’s a very transparent Board. I’ve been able to do a few basic procedural things and get my client’s entire file. I’ve also been able to get a real person on the phone and to return my emails. For an administrative board, it’s quite friendly. Your mileage may vary. I’ve dealt with courts and clerks long enough to know how to be nice. And I’m a lawyer. Registered sex offenders and their families may have a different experience. I can only share mine.
  • They are open to both sides. It just may not feel that way. When you get materials from SORRB, you will see the original discovery from your client’s case or cases. If you’ve handled criminal cases before, you know that discovery is the State’s story of guilt. Discovery doesn’t focus on and rarely even contains mitigation. Does that mean that they are only interested in hearing one side? Not at all. The problem is that there is no repository if information out there with your client’s side. It is often good to consider filing motions or putting evidence into the record with an eye toward how it will look to SORRB one day. It’s also a good idea to check in with them to see when your client will be reviewed. That way, you can send informs it’s before the evaluation is done.
  • They Respond to Science. At least I think they do. If you can have your client assessed, and the conclusions are helpful, this information has more impact than a letter from your clients great grandfather who hasn’t seen him since he was a child.
  • The Ground Level Experts are Powerful. Ultimately, the Board classifies. But they do so in meetings that don’t last very long where many cases are considered together. The real work is done by evaluators, generally masters level mental health experts who know the assessment tools and who review the case. When a request for re-evaluation is filed, it goes to a second expert before it goes to the whole Board. When you write your petition, this is your audience. If you’re an appellate lawyer, this is nothing new. Your audience is the judge and the staff attorney who will read the brief initially and prepare a summary for the judge’s review.

Some of what I’ve said here may soon change. The SORRB lacks much of an institutional history. It’s a new agency. The assessment tools it uses are new (one as recent as 2002). Even the notion of a GPS tracking device is relatively novel. And this post covers only a piece if the appeals process. If a petition for re-evaluation is unsuccessful, the next step is a trial court. And the process goes even deeper. And, like any appeal, your chance to succeed is inverse to how far you go. The standard of review gets decreasingly appellant friendly as you climb deeper into the appeal.

One final tip, a request for leveling an unleveled person carries a certain amount of risk. The Board may rate a person a sexually dangerous predator who might otherwise have escaped notice. If there’s ever a situation where a pro se person can get in over his head, it’s this one. Everything looks user friendly until it isn’t.