Kiwiblog

Proceedings have just started in the Supreme Court with the full bench of five Justices, and I am live blogging from the media bench.

Robert Lithgow is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver Michael Stiassny and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ Bill of Rights Act 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Chief Justice Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that Justice Anderson was the Judge referred to above. Justice Blanchard has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

Justice McGrath is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

Justice Wilson has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

• Siemer will not succeed at being found to have not broken the injunctions
• Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
• But I do not think he will succeed in getting a new trial

I may be wrong on everything though

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.

Tags: Bill of Rights Act, Chief Justice, Justice Anderson, Justice Blanchard, Justice McGrath, Justice Wilson, Michael Stiassny, Robert Lithgow, Sian Elias, Supreme Court, Vince Siemer

I was on the bus today, and across the aisle were half a dozen girls. They were chatting about the usual girlie things until the bus pulled up to the Supreme Court building. One of them suddenly exclaimed how hideous (yes that exact word) it was, and they all agreed.

Then other passengers on the bus joined in, also saying how awful it was, that it was repulsive art etc etc. It was an instant focus group, responding to the ugliness on display. And they were of course right – it looks even uglier every time you look at it.

A reader points out to me, that it is not just Labour that has a fabn of the design in its ranks. Wayne Mapp in his newsletter said:

On Monday I attended the wreath laying by Prince William in honour of our fallen at the National War Memorial in Wellington. Afterwards Denese and I went to the opening of the new Supreme Court building.

The architecture of the building is certainly bold especially with the new Court contained within an orb, modelled on a Kauri Cone. The building makes a statement and I believe New Zealand, can do with more buildings with such a strong design focus.

The only thing NZ should do with buildings with such a strong design focus is use them as target practice for the SAS.

I do hope Wayne isn’t in charge of designing any of the ships for the Navy, with his comments above!

Thinking about the Supreme Court building, it does occur to me that it might be less hideous if one got rid of the barbed wire exterior. Possibly the building itself is not beyond redemption if you scrap the wrap-around.

Tags: Supreme Court, Wayne Mapp

The US Supreme Court has struck down part of the law which restricts private organisations from spending their money on election campaigns.

Cnet explains why:

The U.S. Supreme Court’s sweeping ruling on Thursday that invalidated large chunks of campaign finance law arose in part from an unlikely source: the emergence of Facebook, YouTube, and blogs, and the decline of traditional media outlets.

A 5-4 majority concluded that technological changes have chipped away at the justification for a law that allows individuals to create a blog with opinions about a political candidate–but threatens the ACLU, the National Rifle Association, a labor union, or a corporation with felony charges if they do the same.

The now-invalidated law “would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds,” Justice Anthony Kennedy wrote in the majority opinion (PDF). “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”

In NZ we don’t have a court that can strike down laws that breach the Bill of Rights. To get rid of the Electoral Finance Act, we had to sack the Government.

The court pointed out that the now-invalidated laws are more sweeping than the term “campaign finance” might imply–and amount to simple censorship. It listed these acts of political speech that previously would have been criminalized: the Sierra Club running an ad (close to the time of an election) disapproving of a congressman who favors logging in national forests; the NRA publishing a book urging a vote against an incumbent U.S. senator who supports a handgun ban; and the American Civil Liberties Union creating a Web site telling the public to vote for a presidential candidate because of that candidate’s defense of free speech.

This law was even worse than the EFA!

Joel Gora, a professor at Brooklyn Law School and ACLU lawyer who argued a landmark 1976 Supreme Court case, wrote at The New York Times’ Web site today that the justices “dismantled the First Amendment ‘caste system’ in election speech. Before today, the right to speak depended on who was doing the speaking: business corporations, no, unless they were media corporations; nonprofit corporations, maybe, depending on where they got their funding; labor unions, no.”

What happened of course was these groups formed PACs instead, and just donated to the PACs.

The left in the US are calling this an awful decision. This is ironic as the Obama campaign was the highest spending of all time – the first oen to turn down federal funding and an associated cap. They are not against big money in politics – just against other people’s big money!

Tags: free speech, political finance, Supreme Court, United States

I saw the finished Supreme Court building for the first time today. I’d been out of Wellington for a couple of weeks, and since being back hadn’t had occasion to going past it.

Now I had heard some pretty uncomplimentary things about it, so I wasn’t expecting to be impressed. I thought it would be maybe like Te Papa – bland and uninspiring.

But it is far worse than that. It is truly hideous. I don’t think I have seen a building before with no redeeming features. The exterior up top looks like barbed wire from a distance. The windows are dull. The pillars add nothing, and it is again just hideous.

In case I have not made myself clear, I do not think you could design a more hideous building if you actually tried to. If there was some global competition for hideous buildings, then the Supreme Court building would be a finalist beyond doubt.

The monstrosity surrounding the building is meant to be “a bronze screen depicting the strength, durability and stature of the pohutukawa and rata tree”. Only if you have taken P recently.

It is such a pity. I visited the Israeli Supreme Court and they have a magnificent building.

So I wondered what moron approved the design of this hideous beast, let alone $80 million of our money on constructing it.

What did Rick say at the time about the design:

“This is a building of great significance to New Zealand as it will serve our country for at least 100 years. The design incorporates the old and the new. Once constructed the Supreme Court will be an architectural legacy,” Rick Barker said.

I hope it doesn’t last 100 years. If we are lucky an earthquake will strike Wellington and destroy it. And the only architectural legacy it will leave behind is to teach design students what not to do in the future.

UPDATE: Oh my God. Rick Barker put out a press release this week boasting about how great the building is:

The new Supreme Court sitting alongside the refurbished Old High Court is a fine blend of the old and new, the Yin and Yang, says Labour Courts spokesperson Rick Barker.

“Each is an outstanding piece of architecture reflecting the different times in which they were designed and built. The architects have delivered a great refurbishment and a new building that will stand the test of time.”

The man’s mad. How can anyone look at that building and call it an outstanding piece of architecture.

Commenting on today’s opening of the new Supreme Court building by Prince William, Rick Barker said the original drafts he received when Minister for Courts were for a plain building.

Which would have been fine.

“But I wanted to see a new Supreme Court that personified the special place which our Supreme Court is and should be. I was prompted in this by travels in the United States where each town and city had two special buildings, City Hall and the local court house. They represented a clear statement of the value that the community placed on civic responsibility and the administration of justice.

“My brief was for a building that would stand the test of time as we are unlikely to build another in the next 100 years. It should be a reflection of the architecture expected at the beginning of the 21st century,” Rick Barker said.

Barker is actually taking personal credit for the hideous monstrosity. That’s like taking personal credit for shitting in the Harbour.

“It was to be a special place and a statement of the value our community placed on the administration of justice, with a courtroom that befitted the highest court in the country. I wanted a building of which a future generation would say — they did a fine job.

Future generations will wonder if the building was some sort of expensive practical joke. None of them will say they did a fine job.

Tags: Supreme Court

The Attorney-General has announced:

Attorney-General Christopher Finlayson said he had confirmed today that the Judicial Conduct Commissioner has received a complaint relating to Justice  Wilson’s failure to recuse himself from a Court of Appeal case despite the nature and extent of his financial relationship with counsel in the case. …

“The matter is now with the Judicial Conduct Commissioner,” Mr Finlayson said. “The law requires that the Commissioner makes a preliminary examination, during which he may make any enquiries and look at any relevant court documents.”

“At the end of the preliminary examination, the Commissioner must either dismiss the complaint, or refer the complaint to the Chief Justice, or recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter concerning the conduct of the Judge.”

This is no minor thing, as Justice Wilson sits on the Supreme Court.

The Press editorial also touches on him:

The Supreme Court’s decision last week to recall a decision it made earlier this year, and direct a new hearing of an important case because of concerns about the risk of the appearance of bias by one of its own judges, is unprecedented in New Zealand.

Which does show the system works.

It not only raises doubts about the judgment of the judge involved but it also re-ignites debate made at the time the Supreme Court was established about whether, with judges drawn entirely from New Zealand’s small legal talent pool, such problems are unavoidable. There is little question that, at the least, the episode is a serious embarrassment for the Supreme Court. …

At the time, the judge was a new appointee on the Court of Appeal. He was soon afterwards elevated to the Supreme Court, after an extremely short time on the Appeal Court and ahead of other more experienced and more intellectually distinguished Appeal Court judges. This lapse inevitably raises a question about whether he has sufficient sensitivity of judgment to entitle him to sit on the country’s highest court.

I will be interested to see the report of the Judicial Conduct Commissioner.

Tags: Chris Finlayson, Judicial Conduct Commissioner, Justice Wilson, Supreme Court, The Press