Category: state courts

Wyoming legislature signals retreat from merit selection of judges

The growing populism in the United States over the past decade has posed a serious challenge both to judges and judicial selection systems. States with ostensibly nonpartisan judicial elections have considered moving to openly partisan ones, and states with merit selection systems have discussed reverting back to contested elections.

The latest example is Wyoming, which has chosen its judges through a merit selection system since the 1970s. Under Wyoming’s current system, a seven-member judicial nominating commission (consisting of three lawyers appointyed by the state bar, three non-lawyers appointed by the governor, and the chief justice of the state supreme court) vets candidates for a judicial opening and sends three names to the governor, who must select one. Judges then face retention elections at the end of their terms if they wish to stay on the bench.

The system has worked well for decades, ensuring that finalists for a judgeship have a demonstrated amount of competence and skill. And the final decision still rests with the governor, a statewide elected official. But this is not enough for the Wyoming Freedom Caucus, which is angry about certain judicial decisions in Wyoming and now wants to overturn the entire apple cart. The Freedom Caucus convinced the state’s Senate Judicary Committee to narrowly pass a proposition that would give the state Senate final approval over the appointment of state supreme court justices. That proposition would still have to make its way through the legislative process and be approved by voters.

This is a classic solution is search of a problem. The news story linked above notes that only 13% of Wyomingites in a recent poll disapproved of how judges are handling their jobs. There is also the practical problem that the state Senate is in session only two months a year — what happens when a vacancy arises during the other ten months?

Sigh.

Transparency in the court system is an important value, and we should always be looking for more ways to build public confidence in the administration of justice. But let’s be clear: the only transparency here is the Freedom Caucus’s transparent attempt to turn the state judiciary into a political arm of the right. Hopefully wiser heads will prevail.

Interesting interactive chart on state court caseloads

Each year, state courts handle approximately 66 million cases, ranging from serious criminal felonies to minor traffic citations. The Pew Charitable Trusts have put together an interactive chart showing the breakdown of case types, based on data from the National Center for State Courts. It’s worth a look.

Alaska Chief Justice pledges to speed up criminal cases, use AI for estate cases

In her State of the Judiciary Speech this week, Alaska Chief Justice Susan Carney acknowledged unacceptable delays in the court system’s processing of criminal cases, and vowed to speed up processing times. A media investigation earlier in the year found that the length of time needed to try the most serious felony cases in Alaska had tripled in the past decade.

Chief Justice Carney also noted efforts to improve the civil justice system, including in areas of family law and estate administration. The court system will be employing a generative AI chatbot to help people navigate the often arcane rules of estate processing after a loved one’s death.

This seems like an excellent use of AI (assuming, as always, that it provides accurate and reliable information). It can help ordinary people understand their obligations in handling an estate at lower cost and less time. I imagine that many court systems will look to implement this type of AI technology in the near term.

Indiana courts find interesting new applications for technology

The beginning of each calendar year is the prime time for State of the Judiciary addresses, an opportunity for each state’s Chief Justice to personally address legislators, request needed resources, and champion the court system’s accomplishments.

This year, Indiana Chief Justice Loretta Rush highlighted some fascinating technological developments in her court system. One involved a pilot project that uses AI to generate transcripts in mental health commitment cases. Transcripts are now available in minutes rather than months. This is critical because many commitment decisions are appealed, and in the ordinary case transcripts take so long to generate that the appeal cannot be heard until the period of commitment has passed, effectively denying a party the right of appeal. The new technology expedites the entire process and adds a meaningful appeal option in these difficult cases.

The second development is the creation of an integrated system for sharing data on the statewide jail population. Indiana currently has 20 different jail management software systems, which were not necessarily able to talk to each other. (This sounds incredible, but given the long history of local courts being tied to their county systems rather a statewide court management system, it’s still not all that surprising.) The new system will allow the sharing of critical information, including fingerprint data.

The Indiana legislature will have to fully fund the jail software to the tune of $3 million, and has not committed to it yet. But the developments are interesting and noteworthy, and seemingly highly beneficial for both court administration and public safety.

Judges in Harris County, Texas seek additional courts

The population of Harris County, Texas, which encompasses Houston and its environs, has swelled to nearly five million in recent years. Its local judges are seeking seven additional non-felony district courts for the county in order to keep up with the associated increase in case filings.

Houston Public Media reports:

The proposed expansion includes three new civil courts, three family courts and one juvenile court. According to Judge Latosha Lewis Payne, administrative judge for the county’s 67 district courts, the shortage of non-felony courts has led to increased legal costs and delays in case resolutions.

While six new felony courts were created last year, the county’s judicial system is still stretched thin, according to Payne, as no new non-felony district courts have been created in more than 50 years.

“We want to advocate for a balance and to address the needs of all of the aspects of the Harris County judiciary and the justice system,” Payne said. “All of our divisions are equally important.”

The request will need to go the state legislature for consideration.

Georgia legislature advances bill to keep judges’ private information out of public records

The Georgia House Judiciary Committee had advanced a bill that would shield personal information of state judges. The bill would allow judges to submit certain forms through the state Administrative Office of the Courts. The AOC would then forward information to the relevant local authorities, which would be charged with removing the judges’ personal information from public records.

The bill comes in response to ongoing threats to the judiciary across the United States. Keeping judicial addresses and phone numbers confidential is a small way to prevent harassment by dissatisfied litigants or others.

Arkansas Chief Justice digs in on scope of administrative powers

In early January, newly elected Arkansas Chief Justice Karen Baker caused a commotion by attempting to fire several senior court system administrators, including the Director of the state’s Administrative Office of the Courts. Baker was swiftly rebuked by five of her Supreme Court colleagues, who issued an order clarifying that such employees can only by fired by a majority of the Court. The Arkansas Judicial Council later issued a formal resolution — an apology of sorts — which recognized the targeted employees’ service to the judiciary.

But Chief Justice Baker is not done fighting about the scope of her authority. Last week she met with the Arkansas House Judiciary Committee. As the local press reports:

“There are differences of opinion about whether I have the same authority that chief justices have always had in Arkansas, and I am unwilling to accept that I don’t have the same authority to hire the Administrative Office of the Courts executive director, which is the area of contention,” Baker told lawmakers. “If we can’t work that out, we’ll probably be litigating that issue.”

Whatever the evenutal outcome, this fight will undoubtedly cause distraction and bad blood in the workplace. Ugh.

Is Delaware losing its grip as the preferred state of incorporation?

For more than a century, Delaware has been the go-to state of incorporation for American businesses. Even though a business may file Articles of Incorporation in any state (even if the state bears no relation to where it is actually doing business), more than two-thirds of corporations choose Delaware.

There are a number of reasons why Delaware has become the favored location for business, many of them related to litigation. Delaware has a reputation for having somewhat corporate-friendly laws, and has a specialized business court–the Delaware Court of Chancery–whose judges are sophisticated in business litigation. Moreover, current laws governing personal jurisdiction make it easier for corporations to funnel cases against them into the state in which they are incorporated, again making it more likely that they will benefit from business-friendly laws and business-savvy judges.

But times may be changing. The Wall Street Journal reported yesterday that Meta is exploring the possibility of leaving Delaware and reincorporating in Texas or another state. The story explains:

Executives and controlling shareholders of public companies have long expressed frustration with the Delaware Court of Chancery, which has become home to a thriving shareholder plaintiffs’ bar. The big companies that have reincorporated elsewhere have tended to have a dominant owner potentially affected by the recent Delaware decisions.

Meta is not alone. Earlier this week Dropbox formally announced its intent to reincorporate in Nevada, and yesterday Pershing Square CEO Bill Ackman announced that his his management company would also be reincorporating in Nevada. 

To be sure, Delaware remains the dominant state for incoporation, at least for now. But with nearly half the state establishing their own specialized business courts and certain states (like Nevada and Texas) actively courting businesses, it would not be surprising to see a very different corporate litigation landscape in the coming years.

 

 

Illinois Supreme Court issues policy on use of generative AI

The Illinois Supreme Court has issued a policy governing the use of generative AI. The policy is consistent with the ABA’s Formal Opinion on AI that came out last summer. Unsurprisingly, the Illinois policy extends an attorney’s ordinary ethical obligations to the use of generative AI, holding lawyers accountable for understanding how the technology works, as well as checking for errors and hallucinations, before filing anything with the court.

Texas expands virtual court program for criminal cases

The Texas Department of Criminal Justice has announced plans to expand remote court appearances for inmates using videoconferencing technology. Rather than being transported to county courthouses for hearings and other legal proceedings, inmates would appear before the court using secure video.

Video hearings offer much in the way of efficiency and even safety, relieving the state of the burden of having to transport parties to and from the courthouse. But they still need to provide all the constitutional guarantees of due process. If the video technology is unreliable or if there is a real sense that not being in the courthouse deprives a party of his or her day in court, the program would need to be revisited.

These types of video hearings took off during the pandemic, and some states made the hearings available for public viewing on YouTube or their own websites. I watched a few during that period (mostly from Michigan), and the prisons offered inmates with a hearing a private, quiet space for the videoconference. If Texas can continue that tradition, this seems like a meaningful advance for all involved.