The California Supreme Court is weighing a new ethics rule that would permit the state’s judges to speak publicly on any court ruling if it becomes an issue in an election or recall campaign. The San Diego Union-Tribune explains:
The move to amend the Judicial Code of Ethics would allow any judge, not just the jurist involved in a campaign, to comment on “the procedural, factual or legal basis of a decision about which the judge has been criticized during the election or recall campaign,” according to a draft of the proposed rule.
Historically, judges don’t comment on pending cases out of concern it could show a bias to one side or the other, impair the rights to a fair trial or influence how a case develops. The current ethics rules ban judges, and their staff, from making any comment on pending cases.
The decision is spurred by last year’s ugly and successful campaign to recall state judge Aaron Persky, whose extraordinarily light sentence of admitted rapist Brock Turner galvanized a movement to remove him from the bench. Existing ethics rules prevented Persky–or any other judge–from speaking about his decision. If a new rule is implemented, it would go into effect on April 1.
The Capital Gazette reports on a loophole in Maryland’s electronic filing system, which allows attorneys to designate documents as “confidential” without filing a separate motion to seal with the court. Using the designation effective prevents interested parties, including the media, from accessing the court filings.
Court documents are presumed to be publicly available, and normally a party must move the court to seal specific documents and provide good reasons for the request. It appears that when Maryland moved to electronic filing in 2014, the system was set up to allow attorneys in cases with exposing sealing orders to designate certain documents as confidential. Lawyers are warned not to designate documents as confidential unless they are covered by a rule or statute. It appears, however, that many documents that should be public have been improperly designated.
The courts do not monitor electronic filing designations on a regular basis, which is probably sensible given the court system’s limited resources. But some greater allocation of resources — either in monitoring or in fixing the electronic loophole — may now be warranted.
While you were dancing away the last hours of 2019, or perhaps just watching Ryan Seacrest, Chief Justice John Roberts was undertaking the time-honored tradition of releasing his Year-End Report on the Federal Judiciary under cover of darkness. This year’s theme was the judiciary’s importance in maintaining civic education, especially in an era in which fewer Americans are exposed to the brilliance of our Constitution.
I shall have more to say about this theme in a future post, but for the moment I will highlight a few of the more interesting statistics about the work of the federal courts over the past year:
- Cases argued before the Supreme Court continued to decline, with only 73 arguments taking place during October Term 2018. Compare that to 175 arguments back in OT 1984.
- In the federal district courts, civil case filings rose about 5%, and criminal filings rose about 6%.
- Bankruptcy petitions are back on the rise after a one-year drop in 2018.
As we reach the end of the year, I am resharing some of my favorite posts of 2019. For the first time, I was thrilled to feature the work of two guest bloggers, and several of their posts are included below.
On exasperated judges (January 10)
The importance of being Chief Justice (Lawrence Friedman, January 15)
For some state judges, lobbying is part of the job description (January 16)
The PACER class action and the problem of court funding (February 14)
The risk of upending settled doctrinal expectations (Lawrence Friedman, March 3)
What should we expect when Justice Alito and Kagan testify before Congress this week? (March 3)
Tweeting judges: a cautionary tale (March 20)
The affirmation alternative: a religious case for atheist oaths (Ryan Groff, April 22)
On federal laws and state courthouses (April 30)
Why did France just outlaw legal analytics? (June 7)
“Offended observers” and public religious displays: the question of standing (Lawrence Friedman, June 22)
On the politics of judicial identity (July 7)
Judge Larsen on State Courts in a Federal System (August 21)
The most pointless judicial election ever? (August 27)
A dispiriting 230th birthday for the federal courts (September 24)
On terrible judicial optics (October 3)
The importance of commitment to judicial accountability in Massachusetts (Lawrence Friedman, October 7)
What is the right level of court system transparency? (November 26)
The costs of judicial interdependence, Part I (December 26)
Here is the best of 2017 and 2018.
Thanks for reading, and please visit us frequently in 2020!
The Judiciary of Guam has released a four-year plan that outlines its objectives and goals through 2023. The judiciary worked with the National Center for State Courts in implementing the plan, using a High Performance Court Framework. According to a short story in the Guam Daily Post:
This framework aims to provide a comprehensive set of organizing concepts that describe what a high-performing court seeks to accomplish, demonstrates how a court’s objectives are affected by its managerial culture, identifies measurable categories of performance, and suggests approaches on assembling and using performance information.
There is nothing earth-shaking about the plan or the framework, but that it precisely why I note it here. It’s another reminder that courts of are typical organizations in many ways, and exhibit typical organizational behavior more often than not.
The Hartford Courant reports that the Connecticut state courts will no longer require parties to publish court notices in local papers, effective January 2. Instead, notices will be published in a dedicated court website.
The practice of court notice by publication, sometimes called constructive notice, goes back centuries. It is designed to assure that all interested parties are informed of legal proceedings, especially when those parties cannot be found personally. Indeed, constructive notice played a central role in two of the most famous Supreme Court cases in history. In Mullane v. Central Hanover Bank & Trust Co. (1950), the Court signed off on constructive notice for parties who could not be reasonably ascertained at the time the suit was filed. In Pennoyer v. Neff (1877), the infamous bane of many a first-year law student, the Court based its personal jurisdiction analysis on the premise that constructive notice alone was not enough for the Oregon courts to exercise power over an out-of-state defendant.
Constructive notice is founded on the assumption that if notice is published somewhere, the interested parties are reasonably likely to learn about the proceeding. That itself is a bit of a fiction — the notice in Pennoyer v. Neff was published in a local religious publication called the Pacific Christian Reporter — hardly a paper of major import or geographical reach. But with the unquestioned dominance of the internet in our lives, and the ongoing struggles of the newspaper industry, it is probably more fair to post notices online that in the paper anyway. Newspaper publishers might be rightly angry about the development, but with 2020 on the horizon, it seems sensible for the Connecticut courts to embrace the twenty-first century.
Pictured: The newspaper notice in Pennoyer v. Neff
That is the proposal advanced by Kyle Sammin at The Federalist. Sammin recognizes the folly of term limits for Supreme Court Justices, which would require the practical impossibility of a constitutional amendment. Instead, he suggests that we might promote more frequent turnover by requiring Justices to once again “ride circuit” — the 18th and 19th century practice of having Justices travel across the country to hear more ordinary cases during breaks in the Court’s regular term. Sammin states:
Restoring circuit duties to the Supreme Court would provide a natural way of decreasing tenure on the bench. Travel is not as difficult in 2019 as it was in 1819, but it can still be exhausting. If circuit riding had still been a part of the job, infirm justices such as William O. Douglas, William Brennan, and John Paul Stevens would have left the bench before they were fully in decline. Ginsburg would likely have retired a decade ago, as many on the left wish she had. Instead, arrogance and ease lead to justices remaining in their jobs when they are not up to the tasks appointed to them.
I am intrigued by this proposal, although I am not as optimistic that the additional travel burden would put off any but the most frail Justices. The Court’s current members — even those well into their eighties — are already frequent travelers. They speak at law schools, promote their books, accept cozy summer teaching positions, and so on. Open Secrets, for example, found that in 2018 the Justices collectively took 64 trips that were paid for by others. Justice Ginsburg alone took a dozen trips to far-flung places around the world. And even though riding circuit would involve real judicial work rather that quasi-legal junkets, it seems fair to say that all the Justices truly enjoy their day jobs.
What do you think, readers?