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Supreme Court 26 June to 2 July

09 July 2020

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Leave, evidence

Ieremia v R [2020] NZSC 60 (3 July 2020)

Partially successful leave application – I applied for leave to appeal three issues from CA – issues were – (a) CA refusal to give leave to adduce the evidence of a Mr Wilson on the basis that it was not cogent; (b) CA refusal to give leave to adduce the evidence of a memory expert, Dr Strange, on the basis it was not cogent; and (c) CA conclusion that evidence of the complainants’ previous convictions would not have been substantially helpful to the jury and that the absence of this evidence at the trial did not have any impact on the verdicts – Leave granted on first and third grounds.

Kiwi Party Inc v Attorney-General [2020] NZSC 61 (6 July 2020)

Unsuccessful leave application – KP opposed changes to Firearms legislation – Submissions in support of the appeal drew upon a variety of aspects of the constitutional and political history of England, the United States and New Zealand and comprised a potpourri of constitutional and jurisprudential concepts – At times the submissions advanced in support of the appeal were mercurial and difficult to discern – SC distilled KP’s leave application into following points – (a) New Zealand citizens have a constitutional right to bear arms; (b) The processes and decisions of the Select Committee were unlawful; (c) The [2019] Act was unlawful; (d) The [2019] Act was introduced and passed through Parliament through the exercise of prerogative powers by the Crown and therefore was amenable to review by the High Court; (e) Section 3 of the Declaratory Judgments Act 1908 permitted KP to seek a declaration that the [2019] Act was invalid and that it also breached the Magna Carta, the Bill of Rights 1688 and the Treaty of Waitangi – CA rejected proposition that there was a constitutional right to bear arms in New Zealand – Said attempts to question the procedures and decisions of the Select Committee were in breach of parliamentary privilege and therefore untenable – Said nothing applicant pleaded engaged prerogative powers – CA also said accepted doctrine that the courts cannot declare an Act of Parliament to be invalid applied and that nothing advanced by the applicant undermined that accepted doctrine – CA upheld the HC decision to strike‑out all but the first cause of action as they were untenable and could not possibly succeed – KP challenged almost every aspect of CA decision in the event that leave given – However, submissions did not address the criteria for leave set out in s 74 of the Senior Courts Act 2016 – SC proceeded on basis that KP’s argument that proposed appeal involved a matter of general or public importance – SC said if its proposed grounds of appeal were truly arguable, that test would be met – Arguments KP wished to pursue on appeal have, however, insufficient prospects of success to justify a further appeal – Application dismissed

High Court of Australia

No decisions released during this period.

Supreme Court of Canada

No decisions released during this period.

Hong Kong Court of Final Appeal

Agency, Prevention of Bribery ordinance

HKSAR v Chu Ang [2020] HKFCA 18

Successful appeal from CA – C, a private violin teacher, helped her student’s parent in purchasing a new Italian violin. She recommended a music instruments company and arranged a viewing of selected violins, which she attended with the student and parent – She tested the violins and negotiated the purchase price – Violin chosen and purchased at a discount – C received a commission from the company, but she did not tell the parent – Is a conflict of interest because the greater the discount for the parent, the smaller the commission – C charged with accepting an advantage as an agent contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201 – “Agent” defined to include someone “acting for” another – Magistrate said no pre-existing legal relationship between C and the parent that made the former an “agent” of the latter for the violin purchase – ruled no case to answer – Ruling was upheld on appeal – Judge Said C independent contractor for teaching violin, who had offered to help on a voluntary and non-commercial basis outside teaching – CFA said, as it had done previously, that no pre-existing legal relationship required for one to be an “agent” of another under section 9 – Need not even be proved that other person had requested the agent to act – A person is an “agent” by having “acted for another” where that person has agreed or chosen so to act in circumstances giving rise to a reasonable expectation, and hence a duty, to act honestly and in the interests of that other person to the exclusion of his or her own interests. The section 9 scheme goes beyond ordinary principles of agency law- Here C acting for, and thus the agent of, the parent in the violin purchase – Conduct created a reasonable expectation that she would act honestly and in good faith in the interest of the parent to the exclusion of her own interest in connection with such purchase – By accepting a secret commission, she put herself in a situation of conflict of interest which subverted the integrity of the agency relationship between her and the parent.

Judicial Committee of the Privy Council

No decisions released during this period.

Supreme Court of Ireland

No decisions released during this period.

Singapore Court of Appeal

No decisions released during this period.

Supreme Court of the United Kingdom

No decisions released during this period.

Supreme Court of the United States

First Amendment, robocalls to cell phones, Government debt exemption

Barr, Attorney-General et al v America Association of Political Consultants Inc et al 19-631 (6 July 2020)

Unsuccessful appeal from 4th Circuit CA – Responding to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all robocalls to cell phones (47 U S C. §227(b)(1)(A)(iii)) – In 2015, Congress amended the robocall restriction, carving out a new government debt exception that allowed robocalls made solely to collect a debt owed to or guaranteed by the United States (129 Stat 588) – American Association of Political Consultants and three other organisations that participated in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment – DC said robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government’s compelling interest in collecting debt- 4th Circuit CA vacated the judgment, agreeing that the robocall restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny – CA invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction – SC affirmed CA – Said, inter alia, 2015 government-debt exception violated the First Amendment – (a) The Free Speech Clause provides that government generally “has no power to restrict expression because of its message, its ideas, its subject matter, or its content” – SC precedents, content-based laws subject to strict scrutiny – Section 227(b)(1)(A)(iii)’s robocall restriction, with the government-debt exception, content based because it favoured speech made for the purpose of collecting government debt over political and other speech – Government’s arguments for deeming the statute content neutral not persuasive. First, §227(b)(1)(A)(iii) did not draw distinctions based on speakers, and even if it did, that would not “automatically render the distinction content neutral” – Second, the law here focused on whether the caller was speaking about a particular topic and not, as the Government contended, simply on whether caller engaged in a particular economic activity – Third, while “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech” this law “does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers – 4th Circuit judgment affirmed.

Electoral College, voting powers in presidential elections

Chiafolo et al v Washington 19-465 (6 July 2020)

Unsuccessful appeal from Washington State Supreme Court – When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns – States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred – With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote – Most States also compel electors to pledge to support the nominee of that party – Relevant here, 15 States back up their pledge laws with some kind of sanction – Almost all of these States immediately remove a socalled “faithless elector” from his position, substituting an alternate whose vote the State reports instead – A few States impose a monetary fine on any elector who flouts his pledge – Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election – In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had – The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please – Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on SC authority – SC upheld a pledge requirement—though one without a penalty to back it up – SC case said pledges were consistent with the Constitution’s text and American history but it reserved the question whether a State can enforce that requirement through legal sanctions – SC said here a State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President – Article II, §1 gives the States the authority to appoint electors “in such a Manner as the Legislature thereof may direct” – SC has described that clause as “conveying the broadest power of determination” over who becomes an elector – And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint – A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period – Or more substantively, a State can insist that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote – Or—so long as nothing else in the Constitution posed an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty – Which is to say that the State’s appointment power, barring some outside constraint, enabled enforcement of a pledge like Washington’s – Nothing in the Constitution expressly prohibited States from taking away presidential electors’ voting discretion as Washington did – Article II included only the instruction to each State to appoint electors, and the Twelfth Amendment only set out the electors’ voting procedures – While two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution – Contrary to the Electors’ argument, Article II’s use of the term “electors” and the Twelfth Amendment’s requirement that the electors “vote,” and that they do so “by ballot,” did not establish that electors must have discretion – The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments – But even assuming that outlook was widely shared, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page – “Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions” – The Electors make an appeal to that kind of practice in asserting their right to independence, but “our whole experience as a Nation” points in the opposite direction – From the first elections under the Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment – Electors rapidly settled into that non-discretionary role – Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting – Courts and commentators throughout that century recognised the presidential electors as merely acting on other people’s preferences – State election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens – Washington’s law was only another in the same vein. It reflected longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.

Colorado Department of State, Petitioner v Baca et al 19-518 (6 July 2020)

Successful appeal from 10th Circuit CA – CA judgment reversed for reasons stated in Chiafolo et al v Washington.

Last updated on the 9th July 2020