The AP explains that more than twelve state court systems are embracing text messages to remind defendants to show up for critical hearings and trials. It seems to work: a pilot program in New York City cut no-shows by 26 percent.
I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.
The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.
Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.
By now, many readers may be familiar with the growing tensions between states and the federal government over the Trump Administration policy of arresting illegal immigrants outside (and inside) state courthouses. The issue has been brewing for some time, and came to a head in Massachusetts this week when a state court judge and court officer were themselves arrested by federal authorities for helping Jose Medina-Perez, an illegal immigrant in their courtroom on drug charges, evade imminent arrest by an ICE agent by spiriting him out the back door of the courthouse.
Yesterday, in what they maintain is merely a coincidence of timing, two Massachusetts District Attorneys filed a lawsuit against the federal government, seeking to enjoin ICE from making any further arrests in state courthouses.
My former law school classmate Ted Folkman has an excellent rundown of the events and a sensible take on it at Letters Blogatory. He writes:
My best understanding of the law is that the immigration agent had the right to seek to detain Medina-Perez in the courtroom and that the judge probably shouldn’t have put obstacles (or perhaps “obstructions”) in his way, though I do not want to offer an opinion about whether the judge’s conduct satisfies the elements of the criminal statutes without studying them. Again, we want to think back to another era and the contexts in which states sought to thwart federal law enforcement, and not make a legal rule based just on the sympathies of the moment. But that said, I also think it’s a terrible idea to send immigration agents to courthouses in the first place to arrest people, because it discourages people from attending court and is contrary to efforts to increase access to justice. And I find it hard to see why the federal government thinks the answer is to charge the judge criminally rather than for the Massachusetts court to exercise self-governance.
Two points here deserve elaboration. First, the federal policy is a terrible thing for the operation of state courts and their users. It represents a clear intrusion by a separate sovereign that threatens to disrupt state court proceedings. More importantly, the fear of arrest by ICE agents is sure to dissuade people from coming to court when it is necessary that they do so. The administration of justice will suffer as victims and key witnesses don’t show up for hearings and trials. Claims of domestic violence, child custody, landlord-tenant relations, personal injuries, and a variety of other issues either will not be brought at all, or will lead to default judgments when the defendants fail to appear. If the American tradition of due process means anything, it is that even those who are not citizens — even those who are not here legally — deserve a fair day in court.
At the same time, state courts and state judges are simply not free to ignore federal law and policy with which they disagree. American history is rife with examples of states unacceptably undermining federal law through the operation of their own court systems. Again, if due process means anything, it is that the law must be fairly applied in every venue, regardless of (as Ted puts it) “the sympathies of the moment.” And the charges against the Massachusetts judge, if proven, are quite damning: she allegedly closed her courtroom to the ICE agent, turned off the electronic recording system, and snuck a federal fugitive out the back door of the courthouse. Regardless of how you come down on the morality of her action, her alleged behavior was remarkably unjudicial.
Put differently — we have courts of law, not courts of justice. There are established procedures in place to stop harmful conduct. The lawsuit discussed above is one such procedure; taking the law into your own hands while wearing the robe is not. Whether or not one sympathizes with the intent of the state judge here, her alleged activities have surely damaged the integrity of the state judiciary.
The Indianapolis Star has published an interesting op-ed from Indiana Chief Justice Loretta Rush and Tennessee State Court Administrator Deborah Taylor Tate, exploring (at a high level) how the national opioid epidemic has affected state courts. A snippet:
[O]ne fact remains: the state court justice system is now the primary referral source for addiction treatment in the country.
This reality has put enormous strain on our nation’s state courts, many of which have been overwhelmed by growing dockets and shrinking resources. In a recent survey of chief justices and state court administrators, 55 percent ranked the opioid epidemic’s impact on the courts as severe. The survey results are unsurprising, given the complexity of opioid cases: it takes an enormous amount of time to figure out what’s best for people who are addicted, how to care for their children, and what resources are available for them. And those who are placed in a treatment program with court oversight may remain involved with the court for years.
The courts are often the place of last resort for problems facing society, and have no choice but to address those problems creatively and (usually) with limited budgets. The opioid crisis is certainly playing out that way.
William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.
Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.
Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”
Last week, Alaska Governor Mike Dunleavy refused to appoint a state trial judge from the list of nominees provided to him by the Alaska Judicial Council, expressing concern that certain qualified applicants were “inexplicably” not included on the list. In response, Alaska Chief Justice Joel Bolger defended the existing selection process.
The governor and chief justice met to discuss the impasse earlier this week, and seem to have reached an understanding. Dunleavy has now agreed that he must choose a judge from the existing list of nominees. Publicly, the governor has pushed to broaden the list of nominees in the future, which is a perfectly sensible policy discussion to take up. In the meantime, it is good news that this particular kerfuffle has ended with minimal damage.
Tennessee uses a version of the Missouri Plan to select its state appellate judges. Known (unsurprisingly) as the Tennessee Plan, it calls for an independent nominating commission to present a slate of qualified candidates to the governor, who must appoint a judge from that slate. (This is akin to most merit selection plans around the country.) The judges then stand for retention elections.
Trial court vacancies are filled using a similar process. A nominating commission (whose members are appointed by the legislature) presents a slate of names to the governor within 60 days of a judicial vacancy, and the governor must choose a new judge from that slate.
Under the current system, legislators no direct role in filling judicial vacancies, but a bill working its way through the state legislature is aiming to change that. For new trial judges, House Bill 1257 would require the governor to provide a written notice of appointment to the clerk of each legislative chamber, which would trigger a 60-day period for each chamber to confirm the nominee. If both the Senate and House reject the nominee, or if even one chamber rejects the nominee by a two-thirds majority, the appointment would fail. If neither of these things happens within 60 days, however, the appointment would be deemed valid.
There is nothing inherently wrong with the legislature wanting to have a say in judicial appointments, but in the absence of a pressing concern about the current process, it’s hard to see why this is a good idea. The use of an independent commission is already designed to cut down the risks of partisanship or patronage, and to ensure qualified candidates. And because a nominee may not take the bench under this bill until legislative confirmation or the passage of sixty days after nomination, the judiciary would be left with longer periods of unfilled vacancies.
The bill has only worked its way through the House Judiciary Subcommittee, and has a long road to travel before becoming law. But it’s hard to see why this idea is particularly wise, necessary, or beneficial to those who rely on Tennessee courts to be efficient and effective.