What is freedom of speech?

March 3, 2010 by

New Zealand Bus’ decision not to allow the New Zealand Atheist Bus Campaign to place these advertisements on its buses has some, including some religious folks, complaining that free speech rights are being interfered with. While I think that the advertisements would have stimulated a healthy debate (a debate which is happening already to some extent thanks to the publicity NZ Bus’ decision has generated), I don’t think this is a free speech issue (at least not one that implicates the Atheist Bus Campaign’s free speech rights).

What does the right to freedom of speech mean? It does not mean that I can compel other individuals to carry my message on their buildings or billboards or put up placards on their front lawn. It does not mean that you or I have a right force others to listen to our message. You’re free to stop reading this blog for instance, although I hope you don’t.

Freedom of speech is a restriction on government action. It is essentially a right not to be censored by the government. It is not a right that imposes positive obligations, rather it limits the way in which the government can act. Alan Dershowitz explains this point nicely in his book Rights from Wrongs:

There is no right to speak freely in all contexts. If you say something your boss does not like, he may fire you. Your spouse may leave you. Your parents may punish you. Your private school may expel you, and your friends may abandon you. Only the government may not restrict your right of free speech. (at 175)

So New Zealand Bus is free to choose whether to accept this or any other advertisement. Its right to free speech allows it to make that choice without censorship or direction from the government. That is of course not to say that we might not hope that it would carry any message to promote public debate but its refusal to do so does not interfere with the atheist campaigners’ free speech rights. Critics of New Zealand Bus’ decision are of course free to exercise their right to freedom of speech to try to convince it to change its mind (as they are doing).

I note that New Zealand Bus’ decision may raise other issues, such as whether it is discriminating against the atheist campaigners on religious grounds.  That’s an issue that I think Jesse has some thoughts on, so I will leave it for another day.


Ignorant but Rational

March 3, 2010 by

Don Brash accused the public of being ignorant, and then said that this was caused by “the failure of teachers to teach and politicians to explain some of the basic facts of life.” The claim of ignorance on issues of public policy is certainly correct, but the diagnosis for why this is the case is wrong.

When are people more likely to be ignorant? When the costs of being informed are high, and the benefits of being informed are low. So, being ignorant about how much you earn could end up being very costly – you may accumulate debt, you will poorly assess your preferred consumption bundle, etc. That’s why people tend to know how much they earn.

But what are the costs of ignorance in public policy? Well, the cost of voting for a nonsensical idea is pretty low, because the chance of your vote determining the outcome of the election is tiny. If there’s a one in a million chance of your vote affecting the election, and the cost of tariffs for you personally is $5, then the expected cost to you is one ten thousandth of 5 cents if you vote for a party that supports tariffs. Equally, voting for policies that are illogical may have psychic benefits – you might decide to do something because of personal bias.

But if ignorance and irrationality is driven by our current institutions, then institutional change could alter those incentives. As opposed to each citizen getting to vote, we could have a higher level of aggregation achieved by cross-sectional juries of citizens. We could massively decentralise state functions and then allow greater personal choice in jurisidiction, including the possibility of virtual jurisdictions. An easy first step would be to end get out the vote campaigns.

VSM: the non-conscientious objector

March 2, 2010 by

The Education Act 1989 provides that a “students association may exempt any student from membership of the association on the grounds of conscientious objection.”  If the association is satisfied of the conscientiousness of the student’s objection, it gives the student’s money to a charity of its own choosing.

Jono’s post ably summarises why this procedure does not save the regime from inconsistency with the New Zealand Bill of Rights Act 1990.

I’d like to focus on a different aspect: namely, the implausible premise that only “conscientious” objectors may not be compelled to join a students association.  In doing so, I’d like to defend the rights of non-conscientious or unconscientious students to decide whether or not they want to be a member of a student union based on whatever considerations seem salient to them.  Not least among those considerations: whether the student thinks she can spend her money better than the student union (in some cases, this may not be an implausible assumption).

So how did it come to pass that a student should be required to plead her case before an association pursuant to section 229A(6) of the Education Act and, even if successful, should be required to give up her money to charity as the price of relinquishing a membership she never asked for?

The conscientious objection ground to union membership is a throwback to provisions, which used to be relatively widespread in the Western world, providing for unionised “closed shops”.  The closed shop arrangements considered by the European Court of Human Rights from the United Kingdom and Denmark included grounds for an employee to seek an exemption from union membership on conscientious grounds. Similar arrangements existed in Australia.

The rationale of these procedures was to provide narrow grounds (usually invoked for religious reasons) to avoid union membership while locking other workers into the closed union shop arrangements.  As such, the procedure has its basis in a previous legislative era that was hostile to the idea that union membership was a decision for each employee to make.  The requirement to “conscientiously object” from union membership is therefore based on principles that now find little support in New Zealand law and which no longer reflect the practices of modern New Zealand workplaces.

The right to freedom of association entails more than the right to plead one’s case for an exemption to the group which you didn’t want to join in the first place.  As one of the leading New Zealand textbooks says,  “The starting point unquestionably is that no one can be compelled to join an association.”  As the other leading New Zealand Bill of Rights textbook explains, “The right to freedom of association belongs to individuals, not groups; everyone has the right.”  Just like the AA, the local tennis club, or Greenpeace, the decision is yours — and “no thanks” is a perfectly adequate answer.

Accordingly, there is no reason for students to accept the sad sack procedure under section 229A(6) as a substitute for their rights under section 17 of the New Zealand Bill of Rights Act.  The non-conscientious objector should support legislation that puts her back in charge of deciding which associations to join.

OIA lessons for the media

February 28, 2010 by

Dominion Post columnist Tracy Watkins has an interesting column that explains how the details of spending on ministerial credit cards were made public. The information was released following an Official Information Act (OIA) request made by the media. Watkins explains that on this occasion copies of ministerial credit card statements were provided to the media. Previously it seems that the media were only provided with summaries of overall spending:

Requests under the Official Information Act for ministers’ credit card expenses have been made before. But what was new about this week’s release was the manner in which the information was provided. Minister’s credit card statements were supplied in their unvarnished form. Identical requests under the former government garnered nothing like the same level of disclosure; the information was supplied in table form, with totals ascribed to each minister and little more. The only checks that could be made were phone calls to individual ministers, asking them for an explanation as to why they had run up a particularly large bill in comparison to others.

Commenting on the article, David Farrar suggests that the Dominion Post could reveal the exact wording of the request so that others may use it in future.

While that is a helpful suggestion, as far as I can tell the media (or anyone else) could previously have requested copies of ministerial credit card statements. That is because the Official Information Act 1982 allows the person requesting official information to request that the information be provided in a certain format.

Section 16(1) of the OIA says that where information is requested that is comprised in a document, the information can be made available in a number of ways, including:

(a) by giving the person a reasonable opportunity to inspect the document; or

(b) by providing the person with a copy of the document; or

(e) by giving an excerpt or summary of the contents; or

It would seem from Watkins’ column that in the past Internal Affairs chose to respond to requests for details of ministerial spending by providing a summary of spending.

However, section 16(2) of the OIA provides that subject to a provision about the deletion of information where there is a good reason for withholding it, the Minister or Crown organisation responding to the request “shall make the information available in the way preferred by the person requesting it”. The information can only be provided in a different format if providing the information in the way requested would (section 16(2)):

(a) impair efficient administration; or

(b) be contrary to any legal duty of the department or Minister of the Crown or organisation in respect of the document; or

(c) prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest.

I think that it would be difficult to rely on any of those grounds to refuse releasing copies of the actual ministerial credit card statements.

I wonder if media organisations previously said that they wanted copies of ministerial credit card statements or if they simply asked for details of ministerial spending. I suspect they may just have asked for details of spending. Perhaps after this incident they will be encouraged to ask for original documents more often when making future OIA requests.

VSM: whose choice?

February 27, 2010 by

In an earlier post I explained why I think that the right to freedom of association in the New Zealand Bill of Rights Act 1990 includes the freedom from compelled association. Some opponents of Sir Roger’s Education (Freedom of Association) Bill have argued that even if that is the case, the current provisions of the Education Act 1989 relating to membership of student associations do not interfere with the right to freedom of association. Two arguments are frequently made:

  1. That there is already freedom of association because students can choose to make student association membership voluntary by holding a referendum. (Chris Hipkins made this argument during the first reading of Sir Roger’s bill. Metiria Turei even went so far as to claim that the Bill infringed the right to freedom of association by taking away the right to have a referendum.)
  2. The right to freedom of association is not fringed because students may seek an exemption from membership of their students’ association. (This argument is made by the Save Our Services group.)

In this post I address both arguments.

The right of freedom of association belongs to the individual

The first argument rests on section 229B of the Education Act 1989. That section allows students at a tertiary institution where membership of the students’ association is compulsory to request the council of that institution to hold a vote on whether membership should remain compulsory. If 10% of students sign a petition requesting a vote, a vote must be held. Section 229C provides that the result of the vote determines whether membership will be compulsory in the following year.

The problem with this argument is that the right to freedom of association belongs to the individual. This is clear from the language of section 17 of the Bill of Rights Act which provides that “everyone has the right to freedom of association”.

The point was also clearly made by Justices La Forest, Sopinka and Gonthier in the Supreme Court of Canada’s decision in Lavigne v Ontario Public Service Employees Union. They explained that:

At the core of the guarantee of freedom of association is the individual’s freedom to choose the path to self-actualization. This is an aspect of the autonomy of the individual. (at322)

(My emphasis.)

The same point was made by Justices Gonthier, Arbour and LeBel in the Supreme Court of Canada’s later decision in R v Advanced Cutting & Coring Ltd (at [175]).

Those who make the argument that freedom of association is recognised by allowing a vote on whether membership should be compulsory, miss this point. They often argue the the mechanism of a referendum is a democratic way of allowing freedom of association. An argument along these lines was made by Jacinda Ardern in the first reading debate.  She said:

This bill is not about choice. Students have choice already, and universities have demonstrated that they are fully able to exercise that choice when and if they require it. I say again that they have learnt the lesson that the system they have is working for them. If they make the choice to have a referendum and they stick with universal student union membership, then that is a collective choice that they have made together. After they have made that collective choice, all of the services that then flow from it benefit that collective, and that choice is still there. That is democracy at work, plain and simple.

This misconceives the very nature of rights contained in bills of rights. Such rights are limits on the power of the majority designed to protect the interests of the minority. In this sense rights are undemocratic. But they reflect a democratically reached consensus that not every issue should be decided on a 50% + 1 basis.

So to this extent, the point made by Jacinda Ardern is correct. A referendum on student association membership is a democratic mechanism. But that is simply another way of saying that it is a mechanism that allows the majority to determine the issue for the minority. The infringement with the rights of the minority is not offset by the fact that the majority of students voted in favour of compulsion. That sort of utilitarian analysis is the antithesis of the rights based approach mandated by the Bill of Rights Act.

The ability to apply for exemption is limited and misses the point

The second defence of CSM rests on the ability to seek an exemption from membership of a students association.Section 229A of the Education Act provides that:

A students association may exempt any student from membership of the association on the grounds of conscientious objection; and, if exempted, the association must pay the student’s membership fee to a charity of its choice.

There are at least two reasons why I believe that the ability to apply for an exemption does not cure any inconsistency with the right to freedom of association.

First, students can only be exempted from membership on the grounds of “conscientious objection”. Students may be opposed to joining a student association for any number of reasons, many of which could not properly be categorised as conscientious objections. And students should not be forced to bring their opposition within any particular category. Freedom of association is a recognition of individual autonomy. The freedom is not limited by the reasons underpinning an individual’s choice.

Second, the conscientious objection provision only provides a means by which a student can opt-out of membership. The student is still compelled to be a member in the first place and to pay a membership fee. In order to terminate the membership the student must actively seek an exemption. The student’s freedom of association is still infringed because there is no initial choice.

That explains why I think that the current regime concerning student union membership is inconsistent with the right to freedom of association.  I see that Jesse has come to a similar conclusion about both these arguments in his submission to the select committee ([19]-[30]). He has also already blogged about why he thinks the infringement with the right to freedom of association is unlikely to be a justified limitation on that right (in terms of section 5 of the Bill of Rights). If I get time I may share my own thoughts on that issue later in the week.

VSM: Go your own way

February 25, 2010 by

Jono’s post on the Education (Freedom of Association) Bill looks at why the right to freedom of association under the New Zealand Bill of Rights Act 1990 includes the right not to be compelled to join an association.

I agree and have made a submission to the Select Committee supporting the Bill and recommending some drafting changes.

Assuming that compulsory student unionism restricts freedom of association, the next question is whether those restrictions can be justified in terms of section 5 of the Bill of Rights (which provides: “subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”).

As far as I can tell, the New Zealand government does not appear to have formally set out a justification for compulsory membership of students associations in terms of section 5 of the Bill of Rights. (Sections 223 – 229 of the Education Act were inserted with effect from 1 January 1991.  No report under section 7 of the Bill of Rights appears to have been made by the Attorney-General in relation to the Education Amendment Act 1990 or the Education Amendment Act 2000.)

Nevertheless, you can get a sense of the basic justifications put forward for compulsory student unionism from the arguments made in opposition to the first reading of the Bill, the arguments identified by the Select Committee’s report on the Tertiary Students Association Voluntary Membership Bill 1998 (during the previous round of reforms), and the public statements by student unions in opposition to the Bill.

The justifications seem to come down to a “representation” rationale and a “services” rationale.  I find them pretty unpersuasive for the reasons set out in my submission:

(a) First, there is a representation rationale. The argument appears to run that students associations provide representation to students and, therefore, membership should be compulsory. The problems with this rationale are:

(i) Some students may not wish to be represented by the students association. It is unlikely that mandating unwanted representation of students who are compelled to join an association “relates to concerns which are pressing and substantial in a free and democratic society.” Indeed, to the extent that students associations engage in advocacy on matters of public policy, unwanted representation aggravates the interference with the rights of students who are compelled to be members of those associations. Accordingly, a statutory regime under which people can choose whether to join an association may significantly reduce the frictions caused by students association taking positions on public policy or engaging in controversial activity.

(ii) Compulsory membership is not necessary to provide for the representation of students on the Council of a tertiary institution. Section 171(2)(e)(ii) of the Education Act provides for the election of student representatives by the students at that institution. Accordingly, it is not clear how compulsory membership can be supported as “the least possible impairment” of an affirmed right consistent with the pursuit of the objective of representation.

(iii) The representation rationale could presumably be advanced in respect of any number of different associations (e.g., all workers in the X industry should be compelled join the Y union because they need to be represented by Y). It is not clear why students associations have a special exemption (and, correspondingly, students bear a special burden) from the principle that no one should be forced to join a union.

(iv) One would immediately recognise the absurdity of assertions that all businesses should be required to join a business lobby group to ensure they are “represented” (whether they wish to be so represented or not) or that every person over a certain age should be forced to join a local affiliate of Grey Power. Notwithstanding the absence of compulsion, countless such voluntary associations across all aspects of New Zealand life provide useful representation for their members. The notion that like-minded individuals are somehow unable to pool their energies towards common goals in the absence of compulsion is plainly unfounded. It is not clear why the law should treat students in a different way.

(b) Second, there is a services rationale. The argument appears to run that students associations provide useful services to students and, therefore, membership should be compulsory. There are numerous problems with this rationale:

(i) It is not clear how the view of compulsory membership proponents that students associations provide services so valuable that no student should be free to decline them satisfies the first limb of the tests under Chaulk (i.e., “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important”).

(ii) The services rationale fails the “rational connection”, “minimal impairment”, and “proportionality” limbs of the tests under Oakes and Hansen. There is no obvious reason to think that services provided by students associations could not be obtained by students from the university, other associations, or third party providers. The fact that many universities around the world (including some in New Zealand) operate without compulsory membership seems to expose the flaw in the services rationale. (Of course, compulsory membership proponents might still maintain that they simply believe that it would be better if a union provided those services. The short answer is that section 17 of the Bill of Rights protects the right of individual students to demur to the union’s assessment of its own importance.)

(iii) As with the representation rationale, the services rationale could presumably be advanced in respect of any number of different associations (e.g., all workers in the X industry should be compelled join the Y union because they need the services that only Y can provide well). Again, there is no obvious reason to think that students associations should be specially privileged (and students should be specially disadvantaged) by an exemption from the principle that no one should be forced to join a union.

So I think that the sky won’t fall if the provisions of the Education Act are amended to vindicate the right of each student to freedom of association.  In fact, as in other sectors in which compulsory unionism has been disestablished, I think it likely that student choice will lead to better outcomes for students.  Submissions are due on 31 March (and you can make one here).

“Things just ain’t the same for gangsters”

February 25, 2010 by

Dr Dre is suing Death Row Records. The statement of claim is available online here and is fairly amusing.  Check out paras 3 – 7:

3. In 2009, Death Row’s music catalogue, including rights and obligations relating to The Chronic, was transferred through a federal bankruptcy proceeding to WIDEawake Entertainment, a purchaser that promised a new era of Death Row Records actually paying royalties to its artists and honoring its other commitments.

4. Specifically, the CEO of the supposedly new and improved Death Row Records stated: “I don’t think anyone could do as bad as the last guy.  Failure to provide royalties and whatever craziness went on, that’s not my way. It’s ethically wrong. I can’t do that,” promised Lara Levi, CEO of WIDEawake Entertainment.

5. Notwithstanding the rhetoric, this was another example of “meet the new boss, same as the old boss.” Dr. Dre hasnever been paid, either by Defendants or their predecessors. Defendants have also released to the public a Dr. Dre album entitled The Chronic Re-Lit, as well as a “Greatest Hits” album, without authorization. Neither Defendants nor their predecessors have honored a word of their agreements with Dr. Dre.  This lawsuit is to make sure the Defendants don’t forget about Dre.

6. Whether you get thugged or the check just doesn’t come, it’s all the same – someone else has your money. And whether its platitude-spouting, self-proclaimed soccer mom or a supposed gangster who isn’t paying you, it doesn’t change the fact that you’re not getting paid.

7. “Things just ain’t the same for gangsters … I’ve seen them come, I’ve watched them go … watched the lawsuits when they lost the dough … I just sit back and watch the show …” – Dr. Dre, plaintiff.


Also on the lighter side of things, a Family Guy clip about the FCC which is in keeping with the free speech theme of recent posts.

VSM: does freedom of association include the right not to associate?

February 24, 2010 by

Last year, Sir Roger Douglas’ Education (Freedom of Association) Bill was drawn from the members’ bills ballot.  (Incidentally, Sir Roger has been quite lucky with the members’ ballot recently, this week his Minimum Wage (Mitigation of Youth Unemployment) Amendment Bill was drawn from the ballot.) Anyway, the Bill is now before the Education and Science Select Committee and submissions are due by 31 March 2010 (details here). With the deadline for submissions approaching, I thought it might be timely to have a look at the Bill.

What is the Bill about?

The explanatory note to the Bill explains that:

The purpose of this Bill is to uphold students’ rights to freedom of association, by ensuring that no student is compelled to join a students’ association.

In order to understand why this is an issue, it’s necessary to take a step back. Before 1998 membership of student associations at tertiary institutions was compulsory. As a result of amendments to the law in 1998 and 2000 students are allowed to hold a vote to decide whether membership at their institution should be compulsory or voluntary. If 10% of students at a tertiary institution request a vote on the issue, the university is required to conduct a poll. The result of the vote is binding. In this way, if 51% of students at an institution decide to make membership compulsory, they can compel the remaining 49% to join.

Today the majority of student associations at universities are compulsory (Auckland being the major exception). Sir Rogers’ bill would change this, making membership of all student associations voluntary. This is generally called voluntary student membership (VSM).

Why does Sir Roger want to change the current system?

One argument Sir Roger is making in favour of the Bill is that it upholds students’ right to freedom of association, provided for in section 17 of the New Zealand Bill of Rights Act 1990. He says that the current system of compulsory student membership (CSM) breaches that right.

Over a series of posts I want to look at that claim and examine whether Sir Roger is right. I want to answer three questions:

  1. Does the right to freedom of association include the right not to associate?
  2. Does the current model of compulsory student union membership limit the right to freedom of association?
  3. If it does, is that limit justified under the Bill of Rights?

Does the right to freedom of association include the right not to associate?

Section 17 of the Bill of Rights simply provides that:

Everyone has the right to freedom of association.

In essence, the right allows individuals to choose who they associate with.  It might seem obvious that this includes the right to choose not to associate with a particular group and the right not to be forced to join a particular association. However, some people have argued that the right to freedom of association does not include a “negative freedom” or a freedom from compelled association (see for instance the Chen & Palmer opinion provided to the New Zealand Universities Student Association (NZUSA) in May 1997 which was tabled in Parliament on 11 June 1997 and is available from the parliamentary library). In this post I want to explain why I think that view is wrong. I’ll explain why I think the freedom of association includes the right to be free from forced association and in future posts I’ll consider whether the current version of CSM infringes that right and, if so, whether it is a justified limit on it.

Put very simply, the distinction between a “positive freedom” and a “negative freedom” feels like an exercise in semantics to me. If I am free to choose who I associate with, that freedom is equally constrained whether I am forbidden from joining my local squash club or forced to join the local rugby club. Freedom of association is a recognition of individual autonomy. In both cases my autonomy is constrained and it is not clear to me why proponents of the “positive” / “negative” divide think that one type of limit is different from the other.  Professor Huscroft makes this point nicely in Rishworth and others The New Zealand Bill of Rights (2003):

The positive/negative dichotomy is misleading, because it suggests that the freedom not to associate depends upon the existence of a stand-alone right. But the decision not to join an association can be characterised as an exercise of the right to freedom of association, just as remaining silent may be an exercise of freedom of expression, and choosing to be agnostic is an exercise of freedom of religion. (at 356)

This view is supported by the international case law.  Although there might have been some doubt about the position in 1997 when Chen & Palmer provided their opinion to NZUSA, recent cases have cleared up any uncertainty.

In Canada, the Supreme Court has considered the issue on two occasions.  The Court first considered it in a case called Lavigne v Ontario Public Service Employees Union. In that case the judges were split on whether the freedom of association included the freedom not to associate. Justices La Forest, Sopinka and Gonthier found that the right did include the freedom not be forced to associate.  They said that:

Forced association will stifle the individual’s potential for self-fulfillment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships’ convictions and free choice.  Instead, I can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community.  One need only think of the history of social stagnation in Eastern Europe and of the role played in its development and preservation by officially established “free” trade unions, peace movements and cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals. (at 318).

Justice MacLachlin did not think that it was necessary to finally decide this question but she indicated that she was inclined to think that freedom of association included the right not to be compelled to associate:

I am inclined to the view that the interests protected by s 2(d) [the right to freedom of association] goes beyond being free from state-enforced isolation … . In some circumstances, forced association is arguably as dissonant with self-actualization through associational activity as is forced expression.  For example, the compulsion to join the ruling party in order to have any real opportunity of advancement is a hallmark of a totalitarian state.  Such compulsion might well amount to enforced ideological conformity, effectively depriving the individual of the freedom to associate with other groups whose values he or she might prefer.

The three remaining judges disagreed.  They thought that the purpose of freedom of association was simply to “protect the collective pursuit of common goals” (at 252).

That minority view was firmly rejected in a subsequent Supreme Court decision called R v Advanced Cutting & Coring Ltd. In that case eight of the nine judges agreed that freedom of association included the right not be forced to associate.

The European Court of Human Rights has also found that the freedom of association includes the freedom not to be compelled to associate in a number of cases, including in Sigurjónsson v Iceland and in Sørensen and Rasmussen v Denmark.

Those cases are consistent with the basic intuition that I referred to earlier – forced association is as much a limit on individual autonomy as prohibited association. Given the agreement in the international cases on this point, I do not expect the debate surrounding Sir Roger’s bill to focus on this issue. Rather, I expect it to centre on whether the current provisions of the Education Act actually infringe the right not to be forced to join an association and, if they do, whether that infringement is justified.  I’ll endeavour to blog about those issues next week.

What happens if the judges of the Supreme Court are evenly split?

February 24, 2010 by

A rather inane point for a Thursday afternoon perhaps but the issue arises because the Supreme Court judges apparently decided to hear the Gwaze appeal with only four judges this morning after one judge was called away because of a family emergency.  The Press reports that:

If the Supreme Court appeal is evenly split between the four judges, the decision would automatically support the Crown appeal.

I think the journalist has made a mistake here.  Section 31(2) of the Supreme Court Act 2003 is clear about this point:

If the Judges are equally divided in opinion, the decision appealed from or under review is taken to be affirmed.

In other words, where the judges are evenly split the judgment below is affirmed, so the appeal is dismissed.

Incidentally, where a judge is absent the Supreme Court has a discretion whether to adjourn the hearing or to continue with the sitting (see section 30).

Colorado Supreme Court strikes down limits on campaign contributions

February 23, 2010 by

Continuing the campaign finance theme briefly, Volokh reports that the Colorado Supreme Court has just struck down certain campaign contribution limits. Campaign contribution limits are limits on the amount that one can contribute to a political candidate, as opposed to limits on expenditure independent of a candidate (ads saying vote for or against candidate X). It was this later type of restriction which the US Supreme Court considered in Citizens United.

Anyway, the case is Dallman v Ritter. The Denver Post has a supportive editorial here.

I haven’t had a chance to read the case in detail yet but once I do I may write a further post.