National Judicial Opioid Task Force releases final report

In 2017, the Conference of Chief Justices and the Conference of State Court Administrators created the National Judicial Opioid Task Force to address the role of state courts in combating problems associated with opioid addiction. The Task Force has recently released its final report, which can be found here.

The four key findings of the Task Force are:

  1. There is a lack of access to and education about the use of quality, evidence-based treatment, including medication-based treatment for opioid use disorder (OUD)
  2. The most significant impact of the epidemic involves cases with children and families
  3. Congress and federal agencies must recognize state courts as essential partners in the response to the opioid crisis
  4. State courts must design programs and resources that will be effective responses to the next addiction crisis–not just opioids

I encourage you to read the whole thing for further context, and for recommendations on how state courts can respond to the crisis.

Thanks, Obama! More on how due process is eroded by immigration policies

I recently wrote about how the Trump Administration’s immigration policies are drawing pushback from both Article III and immigration judges on the grounds that they violate due process (including failing to give migrants proper notice of the grounds on which they could fight their cases). But disrespect for migrants’ due process rights are not limited to the current administration. Texas Public Radio reports that back in 2014, the Obama Administration decided to fast-track immigration cases involving unaccompanied minors. That decision forced the immigration courts to delay thousands of other pending cases, which the Obama Administration arbitrarily rescheduled for November 29, 2019 — five years into the future. When the day arrived this past Friday, more than 100 migrants showed up for their hearings, only to learn that they had been postponed again — until 2021.

Delaying cases is a due process violation every bit as tragic as failure to give proper notice, and both the Trump and Obama administrations are guilty of using immigration courts to score political points.

On due process and immigration policy

Two recent news stories have described how judges are pushing back against the Trump Administration’s immigration policies on the grounds that they violate due process.

The Wall Street Journal reports that immigration judges in San Diego are dismissing Migrant Protection Protocols (a/k/a Remain in Mexico) cases at a 33% rate, much higher than any other locality. The San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico were not properly informed of their court dated or other due process rights. Among other examples, a San Diego immigration judge terminated the cases against a family from Honduras after concluding that the U.S. government did not properly fill out their notice to appear, leaving the migrants uninformed about the grounds upon which they could fight their case. While the immigration judges’ decisions do not necessarily improve migrants’ chances at asylum, they do assure that the affected migrants cannot be banned from coming the country for ten years, as is required under current protocol for those who generally fail to show up for hearings.

Meanwhile, in Boston, U.S. District Judge Patti Saris likewise ruled that the government had violated due process in its immigration court hearings, by requiring a detainee at a  bond hearing to show that he or she was not a flight risk. Judge Saris concluded that the  government properly bears the burden of showing, by clear and convincing evidence, that the detainee was dangerous or a flight risk. The ruling was part of a putative class action lawsuit filed by the ACLU and others on behalf of immigration detainees in New England.

I am no expert in immigration law or policy, and I want to take care to distinguish between immigration judges, who are technically employees of the Department of Justice, and life-tenured Third Branch officials like Judge Saris. But it is heartening, at least to me, to see judges at both levels insisting on basic due process for all those haled into the justice system.

More on the Supreme Court’s opacity

Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.

As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

In Memoriam: Mark Cady

The legal world has been shocked by the sudden death of Iowa Chief Justice Mark Cady on Friday. Chief Justice Cady joined the Iowa Supreme Court in 1998 and became Chief Justice in 2011. He was best known for authoring the court’s unanimous opinion in Varnum v. Brien (2009), which declared that prohibitions on same-sex marriage were barred by the Iowa Constitution. Voter dissatisfaction with that decision led to three of Cady’s colleagues not being retained the following year, which (ironically) opened the door for Cady to become Chief Justice in 2011.

Chief Justice Cady is being remembered as a splendid jurist and a dedicated public servant. That was certainly my impression of him on the one occasion I was able to meet him. The court system and public have lost a thoughtful, compassionate, and highly intelligent judge and leader.

The Iowa Supreme Court will take the time to appropriately grieve the loss of its chief justice (and indeed, it has already postponed oral arguments scheduled for this week). At some point, however, the court will also need to turn back to the more mundane task of filling his seat. Members of the court will choose the new chief justice themselves, but not until a new justice has been appointed. That process involves initial review of candidates by a 17-member nominating commission, with the final selection in the hands of the state’s governor, Kim Reynolds. The Des Moines Register has a good primer on the process here.

Deepest condolences to the family and friends of Chief Justice Cady.

New Zealand courts develop video for public outreach and education

In the last 15-20 years, court systems across the United States have slowly begun their own outreach in order to educate the public about their structure and their work. And there is good reason for the courts to take on this mission. The loss of robust civics education in many communities, combined with the flattening and sharpening effects of social media (which combine to eliminate much of the essential context and nuance from stories about the courts), means that court and judges are at increased risk of caricature.

One of the best programs originated in Colorado. Called “Our Courts Colorado,” it sends state judges to speak to schools and community groups about what exactly it is that the courts do. The program tries simultaneously to demystify the judicial system and to educate people about the important work of the courts.

The idea is spreading, slowly but surely, to other common law countries. New Zealand recently unveiled its own nine-minute video describing how the courts work. The video (also called “Our Courts”) is a little dry, but it has many subtle strengths. It shows judges in ordinary business dress, which humanizes them. It clearly explains the different levels within the court system, and the responsibilities of each court. And the video is available in three languages: English, Maori, and Mandarin.

Courts increasingly need to be their own advocates, and that includes assuring basic public familiarity with their work. This is a nice step forward in New Zealand.