Category: state courts

COVID’s silent victim in the courts: traditional due process

Gothamist has a really nice piece by Beth Fertig about socially distanced trials in a Brooklyn Housing Court. Even with Herculean efforts on the part of judges and court staff, these trials are a mess. Lawyers and clients cannot sit next to each other. Entire courthouses have been deemed too small to hold any trials. Members of the public cannot view the trial because of social distancing restrictions. It just feels…weird.

The story underscores how deeply procedural fairness is built into a traditional trial. Under ordinary circumstances, trials would be open to the public and the media. Parties would sit with their lawyers and confer with them throughout the process. In jury trials, simply being in the courtroom would place pressure on jurors to pay close attention to the arguments and evidence. Lawyers would be able to confront witnesses without any fear that they are being coached by someone off-camera. There would be a strong sense of both party involvement and public transparency.

The coronavirus pandemic has forced courts to choose strategies that weaken one or both of these values. In-person, socially distanced trials allow some form of party involvement, including confronting witnesses. But they forfeit much of the transparency that benefits both the public and the parties. By contrast, videoconferenced trials are more amenable to public view, but raise problems for parties who lack the proper technology, or whose homes are more chaotic or challenging than the august, stoic nature of the courtroom.

All this is to say that the sooner we can get back to regular courtroom proceedings, the better. And in the meantime, we should be more cognizant of the due process considerations that are already so carefully built into our traditional trial structure.

Fife et al. on state Chief Justice selection

Madelyn Fife, Greg Goelzhauser, and Stephen Loertscher have posted their article, Selecting Chief Justices by Peer Vote, to SSRN. Here is the abstract:

What characteristics do state supreme court justices prioritize when choosing leaders? At the federal level, collegial court chiefs are appointed or rotated by seniority. A plurality of states permit peer-vote selection, but the consequences of employing this mechanism are not well known. We develop a theory of chief justice selection emphasizing experience, bias, and politics. Leveraging within-contest variation and more than a half century’s worth of original contest data, we find that chief justice peer votes often default to seniority rotation. Ideological divergence from the court median, governor, and legislature is largely unassociated with selection. Justices who dissent more than their peers are, however, disadvantaged. We find no evidence of discrimination against women or people of color. The results have implications for policy debates about political leader selection.

This is a useful study, in that it suggests that state high courts are choosing their chief administrative officers (who are also often the face of the state judiciary) primarily on the basis of experience and interpersonal compatibility. To which I say, good.

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”

Pandemic-induced court changes will remain long-term

Several courts are beginning to announce that technological changes made at the start of the coronavirus pandemic will remain for the foreseeable future. Top judicial leaders in many states have concluded that “Zoom courts are here to stay,” and are working to update their infrastructure. In addition, Ohio will continue holding webinars in lieu of court-mandated live parenting classes, and will improve the tech connection between courthouses and county jails. Meanwhile, Maine has issued official guidance for those who want to watch remote hearings, and is seeking federal funds to further update its technological capabilities.

I generally detest the philosophy of “never let a crisis go to waste,” which too often exploits catastrophes to satisfy a partisan wish list. But this is something far more organic, and the American courts will come out of this pandemic stronger and more flexible for having survived this technological trial by fire.

The intricacies of courthouse design

Law360 has a very interesting article about the design of courthouses, a task which must balance a number of overlapping and occasionally competing goals:

  • Conveying respect for the rule of law and the courthouse as the physical “home of the law” (reminiscent of Chief Justice Taft’s moniker of the Supreme Court building as the “Temple of Justice”);
  • Assuring access to justice for court users and observers;
  • Providing adequate working space for judges and court staff; and
  • Protecting the safety of everyone in the building.

The modern courthouse is simultaneously an office building, a processing station, a public space, a secular temple, a democratic icon, an entertainment complex, and a playing field. Capturing all of those needs in one building is a profound architectural challenge.

Some of the newer courthouses were designed with extra space and wiggle room to accommodate changing needs. I especially like the design of the federal courthouse in Boston (below), notwithstanding its questionable interior artwork. But older courthouses are increasingly bursting at the seams or in need of major retrofitting, and the funding may not be available.

Moakley courthouse

Interested readers should check out the wonderful, and coffee table-worthy, Representing Justice by Judith Resnik and Dennis Curtis, which tracks the history of American courthouses and the evolving goals behind their design.

The peculiar environment of reopened courtrooms

As the summer passes its midpoint, debates are raging in every corner of the country about how to approach the coming school year. Some feel that reopening schools will place teachers and students at unacceptable risk; others note that the mental and emotional damage to children from continued social isolation requires every effort to conduct classes in person. On two points, however, everyone seems to be in agreement. First, no option is particularly good. And second, even if schools do reopen, their layout, schedule, and operation will be markedly different than before.

Courts are facing the identical crisis, as their social and constitutional responsibilities to administer justice without delay brush up against their responsibilities to protect public health. And those courts that have reopened look and feel very different than they did six months ago.

This article points out some of the changes that have been implemented in reopened state courthouses. They feel at once dramatic and mundane: requiring attorneys and clients to communicate only by passing notes through a plexiglass window, holding trials in convention centers (or even fairgrounds!), and asking attorneys and judges to hold sidebars by walkie-talkie (with white noise pumped into the courtroom to avoid others overhearing). And notwithstanding these changes, the general fear of COVID-19 exposure remains pervasive.

This is all deeply unsettling, yet there may be a silver lining. Although unwelcome, the pandemic is forcing an explosion of creativity in our institutions. Some of today’s courthouse solutions may be jettisoned as soon as it is safe to do so, but I also suspect that some will prove worthy of keeping around.

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

A renewed effort to create regional judicial elections in Pennsylvania

Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:

Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.

He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.

I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”

More on California’s relaxed judicial ethics rules

I have a new post up at the IAALS blog that looks more deeply at the changes to California’s Code of Judicial Ethics, which permit judges to comment on pending cases in the context of a recall or retention election. Here’s a taste:

The amended rule allows judges who are under electoral attack to explain and contextualize their decisions to the voters directly. This is especially important for decisions rendered orally from the bench, which—like the rulings that ultimately felled Judges Corey and Persky—were not supplemented with a written account of the judge’s thought process. If a controversial decision was mandated or constrained by existing law, or by formal rules of evidence or procedure, the judge is now free to explain those circumstances to the public. A nuanced legal explanation will still struggle to compete for voter attention in comparison to a simple hashtag, but at least a judge will have some opportunity to advance his or her position directly.

At the same time, by inviting judicial comment on pending cases, the new rule places the overall integrity of the judiciary at greater risk. Traditional rules of judicial conduct prohibit judges from even approaching behavior that might be considered inappropriate for a neutral jurist. Judges, for example, are directed to avoid the appearance of impropriety, to disqualify themselves if there is anything above a de minimis personal interest in the outcome of a case, and to conduct extra-judicial activities so as to “minimize the risk of conflict with obligations of judicial office.” And, of course, judges are traditionally barred from discussing a pending case, lest they compromise the fairness of the proceeding. By consistently erring on the side of impartiality, judicial conduct rules avoid close calls and send a message that judicial integrity is of the utmost importance. The new rule blurs the line between appropriate and inappropriate judicial speech, and may have long-term erosive effects on public faith in the judiciary.

Please read the whole thing!

Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Continue reading “Making sense of the recent Congressional testimony on courts and technology”