court administration – Page 22 – The Interdependent Third Branch

Federal courts ban employees from engaging in partisan campaign activity

The United States Courts have quietly imposed a new ban on campaign donations and partisan political activity by court employees and administrative staff. The new rule went into effect March 1.

An Administrative Office spokesman told the ABA Journal that only “bright-line” partisan activity–not issue advocacy–is prohibited. Moreover, court employees may still donate time and energy to charities, religious organizations, and professional organizations.

This is a sensitive area, which requires a carefully balanced policy. The courts are surely motivated by the need to appear politically neutral and unbiased, a concern that applies to court employees as much as judges. But the “bright line” that the Administrative Office suggests is quickly likely to become blurry in practice. Is a donation to an advocacy group like the National Rifle Association or Planned Parenthood a partisan activity within the meaning of the new rule? Such organizations are so closely tied in the public mind to a particular political party that they can raise the same specter of partisanship even if the organizations themselves are technically nonpartisan.

There are also First Amendment issues at stake. Federal judges are bound by a Code of Judicial Conduct, which limits their ability to engage in partisan political activity as a matter of professional ethics. But the Supreme Court has concluded that notwithstanding prevailing codes of conduct, state judges retain First Amendment rights to speak on political matters. Court employees (who are not bound by a judicial code) would seem to have an even stronger argument for First Amendment freedoms.

The Administrative Office is keeping the new policy largely internal for now, and has said that it will address individual questions as they come up. I predict that this is likely to turn into a headache for the AO going forward.

South Carolina courts face stenographer shortage

For the second time in two days, a story on the severe shortage of court reporters in a state court system — this time in South Carolina. In influx of retirements, brought on by changes to the state retirement program, has led to a significant shortage of stenographers in courts across the state. The court system has launched an audio reporting program to compensate for the shortage, but as I discussed yesterday, audio recording is inferior in many ways to a live stenographer.

Texas courts face shortage of stenographers

The Texas state courts face delayed hearings and trials resulting from a dwindling supply of court reporters. The Texas Office of Court Administration reports a decline of 20 percent in the number of available stenographers since 2005.

While some courts across the country have moved to audiotape as a less expensive option, live court reporters typically produce transcripts that are far more accurate. The story quotes stenographer Chavela Crain, who noted

“We deal with dialects, accents, coughing, sneezing, sirens going by, somebody says they were offered 15,000 for something, and I can say ‘Wait, was that 15,000 or 50,000?'” Crain explained. “On an audio (recording) you’re not going to be able to tell that, and if somebody’s not in the room there is nobody to clarify that.”

West Virginia’s appellate court crisis

Odd things are happening on the West Virginia Supreme Court.

On February 16, Chief Justice Allen Loughry was demoted and replaced as chief by Justice Margaret Workman. The unusual move, which followed a vote by the court’s other members, was apparently precipitated by a spending scandal. The court system spent more than $360,000 on Loughry’s office space since he joined the court in 2013, including a $32,000 couch. Loughry and the state court administrator pointed fingers at each other. The administrator has since been fired. In light of the crisis, the state senate voted to assume immediate legislative oversight of the judicial branch’s budget.

Shortly before these events transpired, Loughry also undertook a massive administrative reorganization of the West Virginia court system, consolidating 27 court divisions into only six. Several court administrators lost senior positions, and at least two supreme court justices strongly opposed the move. Justice Robin Davis told a reporter:

“I voted against the Court’s most recent Administrative Office reorganization for two critical and distinct reasons…. First, there is an appalling lack of clarity in the newly structured Court Services Division because there is no longer a distinct chain of command for each of the different types of courts comprising the judiciary.

“Collapsing magistrate courts, drug courts, family courts, and circuit courts under the same umbrella of supervision will severely hamper and drastically delay response time in answering critical questions and responding to the needs of these courts.

The “purported efficiency” of streamlining the division will in fact, actually restrict citizens’ access to justice and judicial resources, she stated.

As this crisis unfolds, legislators are separately debating whether to add an intermediate court of appeals to the state judiciary. West Virginia is one of only nine states without an intermediate appellate court, meaning that all appeals must be heard by the state supreme court, or not at all. Republicans in the legislature are pushing the change, with support from the U.S. Chamber of Commerce.

There are many advantages to adding an intermediate appellate court. For one, it would streamline the supreme court’s workload. It also carries the potential to lower the stakes of electing supreme court justices: if the supreme court were not the only appellate body in West Virginia, major donors would have less incentive to finance supreme court candidates. (And the historical corruption on the West Virginia Supreme Court as a direct result of election financing is well documented.) Of course, the same problem might just be manifested in the intermediate appellate court as well, but there is at least a chance for reform. Against these advantages is the cost: the tag for a new appellate court would be many millions of dollars.

It will be fascinating to see how these developments play out. Can/will structural reform to the West Virginia courts bring an air of ethical reform as well?

Federal Judiciary Working Group on Workplace Conduct solicits employee input

The Federal Judiciary Workplace Conduct Working Group, formed earlier this year in response to the #MeToo movement and specific allegations against Judge Alex Kozinski, has begun collecting data and reviewing existing policies. The Working Group is also soliciting input from federal court clerks and employees. Comments will be received until March 21, 2018.

More information here.

Judge denies stay of injunction in Cook County records case; defendants appeal to the Seventh Circuit

This blog has been following a First Amendment challenge to the filing practices in the Cook County (Illinois) courts. In November, the Courthouse News Service filed a federal lawsuit, alleging that Cook County was violating the First Amendment by denying the press and the public immediate access to electronically filed civil cases. In January, the federal district court agreed, and issued an injunction giving the Cook County Clerk’s Office 30 days to implement a new procedure.

That procedure has yet to be implemented, and the federal district court has twice rejected motions to stay the injunction. Now the clerk’s office has appealed to the Seventh Circuit Court of Appeals, arguing that the federal courts never should have heard the case under the abstention doctrine announced in Younger v. Harris. No word yet from the Seventh Circuit.

I have more extensive thoughts on this entire lawsuit here.

Courts under water in India and Kenya

I have previously documented recent threats to the proper functioning of the court systems of India and Kenya. In India, appalling delays and overflowing dockets, combined with strife at the highest levels of the judiciary, have undermined with the effectiveness of the system and overall public confidence. Now, unfortunately, related news has been announced: the country’s lower courts face almost 6,000 judicial vacancies. Even for a country of more than one billion people, that number is shocking.

Kenya has faced a different set of challenges in recent months, after its Supreme Court invalidated a presidential election and was subjected to ongoing threats and attacks. This week’s news is of a less violent sort, but one that is perhaps even more problematic for the judiciary: more than 50,000 cases in the court system have been pending for a decade or more. And the total case backlog stands at more than 315,000.

These stories keenly illustrate the idea of judicial interdependence: courts must operate fairly and efficiently to earn public confidence, and they need adequate resources to be able to do so. When courts are properly resourced and properly run, they earn confidence and more resources–a virtuous circle. But when they are poorly run or under attack, they become inefficient and lose both resources and legitimacy–a vicious circle. The Kenyan and Indian judiciaries are locked into the vicious circle right now.

D.C. Superior Court able to cobble together juries despite computer glitch

A computer glitch in the D.C. Superior Court prevented jury summonses from being printed and delivered in late December, leaving court officials scrambling for jurors in late January. Ultimately, the court was able to bring in enough jurors on a few days’ notice to be able to hold the scheduled jury trials.

Jury trials are a critical part of American democracy, and in many instances a constitutional right. But jury service is also an imposition on the lives of our citizens. Courts need to make it as easy as possible for people to perform their civic obligations, and monitoring whether jury notices go out on time seems like a simple place to start.

Positive changes in the Michigan state courts

The Michigan courts recently announced two initiatives designed to improve the experience of being in court for their users. The Third Circuit Court in Detroit opened new lactation rooms in four different buildings to improve access for nursing mothers. And in Dearborn, a local judge has opened a veterans court to provide help to veterans with mental health or substance abuse problems who would otherwise face jail time.

Missouri’s Chief Justice seeks more treatment courts

It’s State of the Judiciary season all across the United States, with chief justices traveling to state legislatures to lay out the success and challenges of their respective judicial branches. In Missouri, Chief Justice Zel Fischer used this year’s address to seek support for additional treatment courts — state courts specially designed to work with offenders who have drug addictions. Fifteen Missouri counties currently lack a treatment court.

The growth of specialized courts like treatment courts across the country reflect growing sense that the court system can better address criminal and other socially undesirable activity by becoming more involved in preventing its root causes. This is a divergence from the traditional role of the courts, designed only to neutrally determine guilt or liability in an individual case. Courts are increasingly seen as a component of a larger network of public and private organizations that can, collectively, address such issues with more depth. Hopefully the impact of specialized courts will be the subject of further study — and if a positive impact is shown, court systems and legislatures will be willing to further experiment with the systemic structure of state judicial systems.