Two states aim to reorganize court structure to promote efficiency and fairness

Separate stories this week show how two state governments are working to reconfigure their court systems in response to growing dockets and concerns about cost, efficiency, and fairness.

In Colorado, a bill to create a new judicial district passed through the House Judiciary Committee. The proposal would split rapidly growing Arapahoe County off from the rest of the 18th Judicial District in order to better (and more fairly) allocate resources among the four counties that currently comprise the district. Arapahoe County has seen a recent spike in criminal prosecutions and especially murder trials (a depressing fact for this former Coloradan), and the growing criminal docket led many to believe that placing it in its own new judicial district would be BBC a better use of resources. The bill has broad support. If passed, it would go into effect in 2025.

In New York, the court system itself is taking the initiative to improve its efficiency and administration. This article by Chief Administrative Judge Lawrence Marks points out that consolidating the state’s Byzantine court system (which currently has 11 different trial courts) would save litigants and the public hundreds of millions of dollars every year. As in Colorado, the proposal has strong support but would need legislative sign off.

These are nice examples of interbranch cooperation for the benefit of local residents and taxpayers. More like this, please.

Rhode Island confronts the future with an aging state supreme court

One of the (many) drawbacks of partisan judicial elections is that strong, knowledgeable, and experienced incumbents are at risk of being removed from the bench based solely on party affiliation. But the reverse is also true: in jurisdictions where judges are unaffiliated and have life tenure, it is often difficult to create any turnover in the judicial ranks — and when turnover does happen, it can happen all at once.

This article in the Providence Journal considers the case of Rhode Island’s supreme court, in which the youngest member is 68 and the oldest in his eighties. There is likely to be some radical turnover coming in the next few years as the current justices retire. It will present a special opportunity for whoever is governor as vacancies, but it also raises important questions about whether one governor should benefit from what could be seen as fortuitous timing.

These are the same questions that are routinely raised at the federal level, thus far without a clear answer.

Seeking a more muscular judiciary

I have a new op-ed up at The Hill, urging the judiciary to be more outspoken about the rule of law and the role of courts in our society. A snippet:

The courts today could use a healthy dose of [John Jay’s] swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.

Please read the whole thing!

Collins on Problem-Solving Courts

Erin Collins (Richmond) has posted a new article, The Problem of Problem-Solving Courts, which looks at the origins of problem-solving courts and questions whether they are really meeting their stated goals. (Problem-solving courts are criminal courts designed to address the unique needs of a specific group of offenders, like drug courts or veterans courts.)

Her conclusion (from the abstract) is quite interesting:

This Article … contends [that] problem-solving courts do effectively address a problem — it is just not the one we think. It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power. Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight. Together, these new insights help explain why the problem-solving court model endures. They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform the system.

It’s an intriguing article that will cause me to think more carefully about the proliferation of problem-solving courts across the country.

When “liking” a Facebook post is cause for judicial disqualification

At the IAALS Blog, Maddie Hosack relates the story of a Kentucky judge who was disqualified from presiding over a lawsuit involving the state’s Republican governor, after it was discovered that the judge had liked a Facebook post featuring the governor’s Democratic challenger in the upcoming election. It’s another reminder that judges must be extraordinarily cautious in their use of social media.

 

California may allow judges to speak publicly about their decisions

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.