Colorado’s Chief Justice on court operations, judicial selection, and experiential diversity

The Colorado Springs Gazette has a terrific short interview with the state’s Chief Justice, Brian Boatright, on a wide variety of issues related to court operations and interdependence. Here is a taste:

[Q]: Is there any change during the COVID-19 era that you believe the Supreme Court couls permanently incorporate into its work post-pandemic?

Boatright: I believe that we will incorporate the practice of allowing attorneys to make oral argument remotely in certain circumstances. The pandemic has taught us that oral arguments can be efficient and effective wheh done virtually. I expect that attorneys who previously has to travel significant distances to present their arguments will want to take advantage of that option. Hopefully, that flexibility will reduce costs for their clients.

Chief Justice Boatright also discusses experiential diversity on the court, the role of collegiality, and the benefits of Colorado’s judicial selection system. It’s well worth a full read.

 

Arizona courts adopt new platform for handling digital evidence

The Arizona court system is adopting a modern digital platform to help streamline virtual hearings, according to this story in Government Technology. The platform will include a digital evidence center capable of holding all relevant digital evidence — from police body cam footage to data collected from smartphones — in a single place. The platform will also allow digital evidence to be collected, digitized, and shared remotely.

Cybersecurity breach affected federal courts

The SolarWinds cybersecurity breach that affected several federal agencies and private tech companies last month apparently also infiltrated the federal court system, according to reports. The Administrative Office of the U.S. Courts yesterday announced additional safeguards to protect sensitive court records. According to the AO’s press release,

Under the new procedures announced today, highly sensitive court documents (HSDs) filed with federal courts will be accepted for filing in paper form or via a secure electronic device, such as a thumb drive, and stored in a secure stand-alone computer system. These sealed HSDs will not be uploaded to CM/ECF. This new practice will not change current policies regarding public access to court records, since sealed records are confidential and currently are not available to the public.

Shades of the cyberattack that hit the Texas courts earlier this year. That involved ransomware, but it equally exposed the courts’ vulnerabilities involving modern technology

James Duff to leave AO

James Duff, the longtime Director of the Administrative Office of the U.S. Courts, will retire from that position on January 31. Duff served two stints as Director, from 2006-2011 and again from 2015 to the present. During his tenure, he has brought many significant improvements to the federal courts system’s internal operations and external relationships, including overseeing the federal Working Group on Workplace Conduct and helping the courts quickly adjust to the challenges posed by the coronavirus pandemic. Not every initiative on Duff’s watch has been a success — the effort to bar judges from associating with the Federalist Society and the American Constitution Society was ill-advised from the start — but overall Duff has helmed the AO with a steady hand and extraordinary competence and vision.

Chief Justice Roberts has appointed U.S. District Judge Roslynn Mauskopf as the new AO Director. She will be the first woman to lead the AO in its 81-year history. We wish her the best in the new position.

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.

Concerns about India’s judiciary remain unresolved

Almost three years ago, four justices of India’s highest court held a press conference to publicly air concerns about the administration of justice in that country. The press conference made international news, but it appears that it has not catalyzed significant change. At least, that it the view of this op-ed:

It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.

If true, this was a profoundly serious charge.

There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.

There is still no transparency in the selection of judges.

The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.

I wonder if this will get new traction in the coming year.

Federal courts announce audio livestream pilot

From today’s press release:

Thirteen district courts around the country will livestream audio of select proceedings in civil cases of public interest next year as part of a two-year pilot program.

Some of the courts already have begun making proceedings available via audio livestreams. The Northern District of Georgia on Dec. 7 streamed audio of a hearing on a presidential election-related lawsuit, which drew over 42,000 listeners. In September, the Eastern District of Missouri streamed audio of a status conference in the case of U.S. v. City of Ferguson. The remaining courts will be livestreaming by February 2021.

The 13 district courts participating in the pilot are in Northern California, Southern Florida, Northern Georgia, Kansas, Montana, Eastern Missouri, Nevada, Northern New York, Western Pennsylvania, Rhode Island, Eastern Tennessee, Eastern Washington, and Washington D.C.

The livestreams will give the public access to real-time courtroom audio on the courts’ designated YouTube channels. Audio streaming of civil proceedings under the pilot requires the parties’ consent and is subject to the presiding judge’s discretion. The pilot excludes trials and civil proceedings involving jurors and witnesses, and also sealed, confidential, and classified materials.

While the pilot temporarily suspends a prohibition on broadcasting federal court proceedings in the designated courts, the livestreams may not be recorded or rebroadcast.

It’s an interesting followup to the now shuttered pilot program that enabled video recording (and subsequent rebroadcasting) of selected district court proceedings. Of course, many state courts implemented video livestreaming months or years ago, without any ill effect.

Making sense of the new PACER bill

There is plenty of room for constructive compromise, but it requires everyone to acknowledge that “free” PACER is not actually free.

Last week, the House of Representatives passed the Open Courts Act of 2020, H.R. 8235, by a voice vote. The bill would radically reform access to federal court records by requiring (among other things) that the courts’ PACER system be modernized and its contents made free to the public. The bill drew praise from open courts advocates, and furious pushback from the Judicial Conference and the Administrative Office of the U.S. Courts (AO). Indeed, the Judicial Conference’s reaction was probably the most vigorous response I have seen from the courts in many years.

It is a rare piece of legislation these days that can simultaneously garner bipartisan support and solicit institutional panic from the judicial branch. So it’s worth examining closely. What we find is an opportunity for the court system to improve its transparency and its own performance, albeit not on the schedule or in the manner it would prefer. Continue reading “Making sense of the new PACER bill”

Illinois approves notification of court dates by text message

Another misleading headline: Illinois Supreme Court approves new rule allowing for an expansion of text messaging in courts.

No, people are not actually allowed to send text messages while in court. Rather, the new rule permits individual court administrators in Illinois to implement text message notification programs. The primary goal seems to be getting people to show up for their court dates.

Text messaging programs are a supplement and not a substitute for any notification required by Supreme Court Rule and any failure to participate in a text messaging program will not be considered or used as evidence against the person in any court proceeding.

Participants will be afforded the ability to opt out of the program at any time.

The phone information provided and collected for the purpose of inclusion in a text message notification program under the new Rule will not be made part of the official public court record and shall not be utilized for any other purpose.

An eminently sensible change.