I was deeply saddened by the passing last month of Craig Shaffer, U.S. Magistrate Judge for the District of Colorado. Judge Shaffer was a kind, brilliant, thoughtful, and highly respected judge. He authored a number of seminal decisions during his tenure on the federal bench, including an early, important opinion on the discovery of electronically stored information. He was also deeply committed to improving the justice system behind the scenes, as a member of the federal Advisory Committee on Civil Rules, a member of the Sedona Conference, and a frequent author on legal matters.
Judge Shaffer was also a lovely person, generous with his time and ideas. I consulted him from time to time about my own ideas on the discovery and rulemaking process, and he unfailingly offered observations that both clarified and magnified my original thoughts.
My sympathies to Judge Shaffer’s family and the entire legal community. He will be sorely missed.
The National Constitution Center has posted video of its entire program on Judicial Independence and the Federal Courts. It features an all-star group of panelists. I started watching a bit of the second panel (moderated by Jeffrey Rosen), and it is terrific. I will surely watch all three panels in short order. Highly recommended.
A number of stories in the last few days have revealed a disturbing collection of verbal threats to judges, many occurring in the courtroom. Happily, no one was harmed, and the perpetrators have been charged and/or convicted. But yikes. Even accounting for the mental and emotional imbalance of those making the threats, no one should have to tolerate this in his or her workplace.
Although the federal court system managed to find sufficient “no year” funding to stay open one more week (until January 18), the ongoing federal government shutdown has begun to affect the system’s daily operations. Several district courts are reportedly staying some civil cases, especially those involving the U. S. government as a party. Courts are also cutting back on operational spending such as travel, supplies, and new equipment.
All court employees are continuing to receive full pay as of now, but if the shutdown continues beyond the 18th, non-essential employees would be furloughed and essential employees will continue to work without a paycheck. In small district courts like the Northern District of Iowa, staffing is already sufficiently thin that all employees would be considered essential even if funds were to run out.
As bad as this news is for the courts, it dramatically illustrates the importance and wisdom of the AO’s internal budgeting operations. As I have discussed elsewhere, it was not until the late 1930s that the federal court system obtained control over its own budget. Even though the courts cannot control how much money they receive from Congress, the ability to manage that money with forethought is exactly why they have been able to weather the shutdown (at least for now) while other federal government offices have closed or reduced operations.
Consider, for example, the dire situation at the Justice Department, where the Antitrust and Civil Divisions already have reportedly furloughed more than half of their staffs. As a Bloomberg story explains:
A continued shutdown could seriously hamper some of the civil division’s broad and crucial mandates that range from ensuring healthy market competition and weeding out Medicare fraud to defending the U.S. in lawsuits and recouping money for the Treasury. The effect could then spill over into the department’s criminal division and federal courts, a scenario that could jeopardize law enforcement nationwide.
Not good news. Not good at all.
The United States Courts will run out of funding this coming Friday, January 11. If the federal government is not funded and operating by that date, case processing will be immediately affected. While the likely impact will vary from district to district, it is certain that civil cases will suffer first, with trials and hearings being postponed as the courts dedicate their essential staff to criminal proceedings. Bloomberg Law has a good look at how the courts are handling the situation.
We are already starting to see some negative effects on civil cases in certain districts. Should the shutdown linger, one would expect to see existing civil cases settle at higher rates, and future cases filed either in state courts or in private arbitration settings. None of this, of course, is good business for the federal court system. Let’s hope there is a resolution soon.
Per tradition, at 6 p.m. EST on December 31, Chief Justice John Roberts released his Year-End Report on the Federal Judiciary. Each year, the report focuses on one specific topic. For 2018, the topic–appropriately–was the work of the federal Working Group on Workplace Conduct.
Many have already focused on the #MeToo aspect of this year’s report. I want to highlight something a bit different. Far beyond discussing the specific outcomes of the Working Group’s activities, Roberts spent quite a bit of time discussing the internal mechanisms by which the Working Group’s suggestions were implemented. He highlighted the roles of the Judicial Conference of the United States, the Administrative Office of the United States Courts, and the various Judicial Conference subcommittees that studied and implemented the Working Group’s recommendations. The enduring image is one of a slow, careful, and multi-layered process–exactly the image the Chief Justice was likely aiming for.
Although it never goes on for more than a few pages, the Year-End Report may be the most deliberately written document that the Chief Justice writes all year. One has the sense that every word had been carefully and repeatedly vetted. That the Chief would dedicate significant space to describing (even at a high level) the federal courts’ internal committee work is telling, and a welcome development for students of court organization.
Happy New Year to all.
The United States Courts will use court fees and reserve resources to operate during the current government shutdown. The Courts can continue to operate for about three weeks, until January 11, 2019.