When Public Health Goes to Court: Judicial Structure and Functions

Transcription

1 When Public Health Goes to Court: Judicial Structure and Functions February 5, 2015 Public Health Law Series Webinar:

2 How to Use Webex Audio: If you can hear us through your computer, you do not need to use your phone. Just adjust your computer speakers as needed. Support: If you need technical assistance, call Webex Technical Support at Submitting Questions: All participants are muted. Type a question into the Q & A panel for our panelists to answer. Submit your questions at any time during webinar. Recording: This webinar is being recorded. If you arrive late, miss details or would like to share it, we will send you a link to this recording after the session has ended. Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

3 When Public Health Goes to Court: Judicial Structure and Functions February 5, 2015 Public Health Law Series Webinar:

4 Moderator Montrece Ransom, Team Lead, Public Health Law Training and Workforce Development with the Public Health Law Program (PHLP) in the Office for State, Tribal, Local, and Territorial Support at the Centers for Disease Control and Prevention M.P.H., Emory University, J.D., University of Alabama School of Law Research interests/areas of expertise: Public Health Emergency Legal Preparedness Health Disparities Environmental Public Health Law Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

5 Presenter Lorre Cuzze, Law Clerk, State Court of Dekalb County, Georgia M.P.H., Emory University; J.D., M.P.H., University of Cincinnati College of Law Former Extern, Public Health Law Program, OSTLTS, CDC Legal Research, Writing and Advocacy Federal and State Trial Court Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

6 Presenter David T. Emerson., Judge, Douglas County Superior Court, Georgia J.D. University of Georgia Research interests/areas of expertise: Technology Authority Administrative Judge Jury Selection Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

7 Presenter Tina Batra Hershey, J.D., M.P.H., Assistant Professor, Department of Health Policy and Management, University of Pittsburgh Graduate School of Public Health J.D., The George Washington University Law School; M.P.H., The George Washington University School of Health and Health Services Research interests/areas of expertise: Legal, policy and ethical issues impacting public health preparedness and authority to close schools Public health science and law in the judiciary Legal preparedness for Tribal public health emergencies Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

8 Presenter Kerri Lowrey, Deputy Director, Network for Public Health Law Eastern Region Office, University of Maryland J.D. University of Maryland School of Law, M.P.H., Johns Hopkins University Bloomberg School of Public Health Research interests/areas of expertise: Cancer prevention law Injury Prevention Law Sports and Recreational injury prevention in children and adolescents Social determinants of health Child welfare law Legal and Ethical implications of emerging technologies Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

9 THE JUDICIARY AND PUBLIC HEALTH A 3-Part Webinar Series Sponsored by the Centers for Disease Control and Prevention and the Network for Public Health Law Webinar #1: Judicial Structure and Functions General Structure and Essential Functions of the Judiciary Lorre B. Cuzze J.D., M.P.H. Law Clerk, State Court of DeKalb County, GA Former Extern, Public Health Law Program, OSTLTS, CDC

10 JUDICIAL STRUCTURE AND FUNCTIONS There are two, parallel, court systems in the United States: federal courts and state courts. 1) The three levels of federal courts: Trial court (District Court) Courts of Appeals (11, plus D.C. Circuit) U.S. Supreme Court 10

11 JUDICIAL STRUCTURE AND FUNCTIONS Source: 11

12 JUDICIAL STRUCTURE AND FUNCTIONS 2) The 50 states courts, the District of Columbia and Puerto Rico have (hereinafter states): Inferior courts -local and trial courts (N.Y. is called supreme court) Intermediate appeals court/s (40 states) State supreme court (or other court of last resort) 12

13 JUDICIAL STRUCTURE AND FUNCTIONS Source: 13

14 JUDICIAL STRUCTURE AND FUNCTIONS Courts and judges are part of the judicial branch of government. Article III, section 1 of the U.S. Constitution establishes the judicial branch of the federal government. The States also create their judiciaries through constitutions. 14

15 JUDICIAL STRUCTURE AND FUNCTIONS A few words about judges and a warning: they are independent, often iconoclastic, generalists. Ex parte communications with judges or staff is prohibited and viewed as an unwelcome challenge to impartiality. 15

16 JUDICIAL STRUCTURE AND FUNCTIONS JURISDICTION = AUTHORITY Authority of court to hear and decide a specific matter based upon constitutional, statutory or administrative laws Involving only those parties; advisory opinions are NOT permitted Courts consider jurisdiction in each case. Federal courts are courts of limited jurisdiction; state courts have courts of both general jurisdiction and limited jurisdiction. 16

17 JUDICIAL STRUCTURE AND FUNCTIONS There are two types of jurisdiction: 1) PERSONAL JURISDICTION over the parties (i.e.., plaintiff, defendant, petitioner, relator, guardian ad litem) - which a party may WAIVE 2) SUBJECT MATTER JURISDICTION over the kind of case - which may NEVER be waived. Even if a court decides a case and issues a decision, if a party later correctly raises the court s lack of subject matter jurisdiction, the decision and orders are void. 17

18 JUDICIAL STRUCTURE AND FUNCTIONS Subject matter jurisdiction in civil cases involving Public Health issues include such areas or issues: 1) HIPAA (Health Insurance Portability and Accountability Act of 1996) (privacy rule and discovery in litigation) (federal law) 2) Federal and state social-service eligibility issues Medicaid insurance in Georgia PeachCare for Kids; food stamps, disability, workers compensation 18

19 JUDICIAL STRUCTURE AND FUNCTIONS 3) Bioterrorism within the U.S. implicating co-extensive or overlapping police and public health and safety powers of state and/or federal authorities 4) Quarantine laws for infectious diseases or agents, primarily involving state courts and agencies but possibly federal (Hartsfield problem) 5) Other areas of federal law: OSHA worker safety; FAA- air transportation; EPA-environment, NRC- radiation/nuclear; and food safety FSIS (Food Safety Inspection Service of Dept. Agriculture), CDC- injury prevention, FDA- drug safety and authentication 19

20 JUDICIAL STRUCTURE AND FUNCTIONS There are also ADMINISTRATIVE COURTS in both the federal system and state systems. Administrative courts are part of the executive branch of the government (Governor), are created by legislation, have limited jurisdiction usually pertaining to a specific area of law or agency. 20

21 JUDICIAL STRUCTURE AND FUNCTIONS Administrative law judges (ALJ s) or hearing officers The rules of practice and procedure may be less rigorous before such courts under administrative procedure acts (APA). ALJ s may find facts and decide questions of law. Cannot decide constitutional questions which are reserved for the judicial branch courts. Administrative agencies sometimes finalize ALJ decisions. ALJ decisions are subject to judicial review but often courts will defer to agency expertise. 21

22 JUDICIAL STRUCTURE AND FUNCTIONS 1) Federal administrative courts which may address/affect public health matters include: Social Security Administration (benefits) Department of Veterans Affairs (benefits) HHS Office of Medicare Hearings and Appeals DOJ(Dept. of Justice) Executive Office for Immigration Review EPA FDA (pharmaceuticals and medical devices) FAA 22

23 JUDICIAL STRUCTURE AND FUNCTIONS 2) State administrative courts which may address/affect public health matters include, in Georgia: Department of Public Health DFACS (Department of Family and Children Services) Department of Human Services Department of Labor Georgia Department of Community Health 23

24 JUDICIAL STRUCTURE AND FUNCTIONS The Pre-Emption Doctrine derives from the Supremacy Clause of the U.S. Constitution which provides that [t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Art. VI, U.S. Constitution (emphasis). Generally, the hierarchy of law is federal, state, local. When a state or local law conflicts with any federal law or regulation, it is pre-empted and thus, void. 24

25 JUDICIAL STRUCTURE AND FUNCTIONS Problems arise when the overlap between federal and state court jurisdiction is further complicated when laws or regulations of multiple jurisdictions and agencies are implicated in an issue. Which court has jurisdiction to act? And, do the laws conflict or are they complementary? IT DEPENDS

26 SOURCES AND RESOURCES 1) Goodman, R. Law in Public Health Practice (2nd ed.). Oxford University Press. Chap. 4, Public Health and the Judiciary, (2007) 2) United States Constitution 3) Federal statutes - U.S. Code (Annotated) 4) Code of Federal Regulations - C.F.R., for agencies 5) State constitutions, statues, and rules and regulations 6) Jacobson v. Massachusetts, 197 U.S. 11 (1905), 26

27 PHLP ONLINE PUBLIC HEALTH LAW RESOURCES Public Health Law Public Law Bench Books (for judges but useful for anyone going to court) Federal pre-emption of state or local law Cross-sectoral and cross-jurisdictional emergency preparedness planning Legal Authorities for Isolation and Quarantine (tuberculosis, MERS, SARS etc.,) 27

28 David Emerson Judge Superior Court

29 Requests for search warrants and arrest warrants are made twenty-four hours a day. Ex parte family violence petitions and ex parte stalking order petition are routine and are handled within twenty-four hours of filing.

30 Do not presume familiarity with the procedure and provide the relevant code provisions. Be sure the petition includes presents specific facts that show that the person poses a substantial risk of exposing other persons to an imminent danger of infection. Be sure the affidavit presents those specific facts in addition to medical conclusions.

31 In Georgia, the tuberculosis statute requires that the hearing shall be held no sooner than seven days and no later than 12 days. This will require a special summons because the normal summons for a civil case requires an answer within 30 days.

32 Should you have to deal with some other disease that poses an imminent danger of infection, track the requirements of the tuberculosis statute for quarantine.

33 Sheriffs' offices generally have after hours contact numbers for judges in their jurisdictions. Contact local law enforcement offices for this assistance. If possible, contact the clerk's office in the courthouse of the jurisdiction where the patient lives.

34 In rural areas, judges ride circuits that have many counties. Don't presume that the judge is always available in those counties. You may have to locate the judge to get an ex parte a order signed.

35 These courts usually have a presiding judge who should be available to sign emergency orders.

36 Some states such as Georgia have a public defender system in place. It will speed things up to go ahead and contact the County's public defender office for have an attorney appointed prior to the hearing. The Public Defender may use a private attorney who might be more familiar with civil commitment procedures.

37 When Public Health Goes to Court: Judicial Structure and Functions VAWA 2013: Tribal Criminal Jurisdiction Over Crimes of Domestic Violence Tina Batra Hershey, JD, MPH Assistant Professor Health Policy & Management University of Pittsburgh Graduate School Of Public Health February 5, 2015

38 Violence Against Women Act (VAWA) 38 First enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act Cornerstone of US response to domestic and sexual violence Reauthorized in 2000, 2005 and 2013

39 Violence Against Indian Women 39 39% of Indian women report being the victims of domestic violence. 34% of Indian women report having been raped during their lifetime. At least 70% of the violent victimizations experienced by Indians are committed by persons not of the same race.

40 What is Indian Country? 40 Indian Country is defined by statute. Includes: All land within the limits of an Indian reservation under the jurisdiction of the United States government All dependent Indian communities All Indian allotments still in trust, whether they are located within reservations or not.

41 Criminal Jurisdiction in Indian Country 41 Very complex Divided among federal, state and tribal governments Depends on location of crime, type of crime, race of victim, and race of perpetrator Oliphant v. Suquamish Indian Tribe, 435 US 191 (1978) Tribal courts lack criminal jurisdiction over non-indian defendants

42 VAWA 2013: Section 904 Amends the Indian Civil Rights Act of 1968 to provide special domestic violence criminal jurisdiction (SDVCJ) to tribal courts over non- Indian offenders who commit certain crimes in Indian Country 42

43 Section 904 Purposes 43 To decrease the incidence of domestic and intimate partner violence in Indian country To ensure that perpetrators are brought to justice To increase tribal sovereignty by strengthening tribal capacity to administer justice

44 Special Domestic Violence Criminal Jurisdiction Tribes elect to participate and exercise SDVCJ SDVCJ is concurrent with existing federal or state jurisdiction VAWA 2013 did not create or eliminate State or Federal criminal jurisdiction in Indian Country 44

45 Special Rule for Alaska 45 Section 910 of VAWA 2013 provides that SDVCJ will apply only to the Metlakatla reservation Only area of Alaska that is considered to be part of Indian Country Repealed by the Alaska Safe Families and Villages Act of 2014

46 Special Domestic Violence Criminal Jurisdiction 46 Crimes Covered Domestic violence that occurs in Indian country Dating violence that occurs in Indian country Violations of protective orders in Indian Country Crimes Not Covered Crimes committed outside of Indian Country Crimes between 2 non- Indians Crimes between 2 strangers Crimes where defendant lacks sufficient tribal ties Child abuse or elder abuse

47 Due Process Protection Requirements 1. Defendants must be provided with effective assistance of counsel equal to at least that guaranteed by the US Constitution. 2. Indigent defendants must be provided with properly licensed defense counsel at the tribe s expense. 3. Judges presiding over SDVCJ criminal proceedings must have sufficient legal training to preside over criminal trials and be licensed to practice law in any US jurisdiction. 47

48 Due Process Protection Requirements 4. The tribe s criminal law, rules of evidence, and rules of criminal procedure must be publicly available prior to charging the defendant. 5. The tribal court must maintain a record of the criminal proceeding, including audio or other recording. 6. The tribal court must provide the defendant with the right to trial by an impartial jury selected from a jury pool that reflects a fair cross-section of the community. 48

49 Due Process Protection Requirements 7. The tribal court must ensure that any individual detained under SDVCJ be timely notified of his/her rights and responsibilities. 8. The tribal court must ensure that a defendant has been notified of his/her right to file a habeas corpus petition to challenge conviction and stay detention. 9. The tribal court must ensure that all other rights whose protection is necessary under [the US Constitution] in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise [SDVCJ] over the defendant are provided. 49

50 VAWA 2013: Pilot Project Effective date of VAWA 2013: March 7, tribes selected to participate in Pilot Project prior to effective date Tulalip (Washington) Pascua Yaqui (Arizona) Confederated Tribes of the Umatilla Indian Reservation (Oregon) 50

51 Pascua Yaqui Community Handout 51

52 Pascua Yaqui Pilot Project Experience Since it first began exercising SDVCJ in Feb 2014, the tribe has had 72 domestic violence cases, 18 of which involved non-indian defendants (25%) 6 cases currently active, 1 pending 2 set for jury trial 1 stayed pending mental health evaluation 2 convictions via plea agreement 4 referrals for federal prosecution 6 dismissed/declined 52 Defendants were: Hispanic, White, Asian, African- American, and Lineal Tribal Descendant (non-qualifying for tribal enrollment)

53 Conclusion 53 VAWA 2013 is an important step towards addressing the high rates of domestic and dating violence Indian women face in Indian Country. It will take time to implement and will likely require code and procedure development, as well as training. Gaps in justice still remain because SDVCJ does not apply if suspects were not previously known to the victim.

54 COURT WATCH PROGRAMS Kerri McGowan Lowrey, JD, MPH Deputy Director Network for Public Health Law Eastern Region February 5, 2015

55 Court Watch Programs What Are Court Watch Programs? Groups designed to assess and improve administration of justice in particular areas of law (i.e., domestic violence, family court) Nonprofit, state- or county-funded

56 Court Watch Programs Case Study: CourtWatch Montgomery One model among many Established in September 2010 to provide a public eye on domestic violence (DV) in Montgomery County, Maryland Improve victim safety by reducing obstacles to effective legal protection All-volunteer, non-profit organization Volunteers trained to observe hearings, use standardized data collection forms

57 CourtWatch Report CourtWatch submitted a report in early 2012 to County District Court focusing on the process for granting protective and peace orders between intimate partners in the county s District Courts Data collected from 640 hearings, 1000 observation hours over 6-month period in 2011 Identified several observed challenges and recommendations for addressing them Very well received by District Court judges

58 Key Implemented Recommendations Staggered Exit/Victim-first Procedures Judges should require accused abuser to remain in the courtroom for 15 minutes after the victim has left the premises. Ensuring Compliance Judges should ask respondents whether they understand that violating a protective order is a crime that can result in incarceration. (Report found this was only done 44% of the time.) Ensuring Understanding of Proceedings Audio explanatory introduction in English and Spanish Firearms Instruction Judges should instruct respondents that they must surrender any firearms for duration of the order.

59 Other CourtWatch Activities 2014 Analysis of Variation Across 24 Maryland Counties Found that, while MD District and Circuit Courts operate under the same DV laws, courts in the 24 counties granted, denied, and dismissed final orders at dramatically different rates Obvious implications for the safety of DV victims in different counties

60 Other CourtWatch Activities 2014 Report on impacts of DV hearing outcomes on children Lack of timely protection for children Lack of affordable supervised visitation services and monitored child transfer programs Underutilized counseling services (for children and abusers) Such data can shed light on real problems and begin the process of creating solutions to ensure effectiveness of legal remedies.

61 Q&A Please type your questions in the Q&A panel. Public Health Law Series Webinar: When Public Health Goes to Court

62 Thank you for attending Please join the Network for this upcoming webinar: The 2015 Measles Outbreak: Exploring the Role of Public Health Law Thursday, February 19 1 p.m. (ET) More information: networkforphl.org/webinars Public Health Law Series Webinar: When Public Health Goes to Court