Category: state courts

Delaware to appeal holding that its judicial appointment process violates the Constitution

Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.

The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.

(Even more) corruption of the judiciary in New York City

The New York Times periodically turns over the rock known as judicial selection in the Big Apple, and lo and behold, the nasty little critters underneath always seem to be thriving. This time it’s a story on corruption in the Bronx, where a Democratic party boss seems to have punished a local judge for refusing to hire his hand-picked crony as a “confidential assistant.”

What a colossal embarrassment. Why do New Yorkers tolerate this?

 

The Illinois courts — we’re not dysfunctional!

There is something odd about the tone of this e-newsletter from Illinois Chief Justice Lloyd Karmeier. It is ostensibly announcing good news about a significant funding increase for the Illinois state court system in 2020. But Karmeier takes a weird stab at his colleagues on other, “dysfunctional” state courts, as well as lamenting the same “dysfunction” of the other branches of government in his own state. The article itself is a fairly benign piece praising the court system’s new “workable” budget, but it is written with a bit more color than one might expect from a state chief justice.

Karmeier’s election to the Illinois Supreme Court in 2004 was rife with political intrigue, and I do not follow the Illinois courts enough to speak to his professional mannerisms or various political pressures on the courts of that state. Readers can judge for themselves whether I am reading too much into this.

New Mexico Supreme Court invalidates change to judicial election cycle

The New Mexico Supreme Court has invalidated portions of a law, known as a “50 year tuneup,” which would have changed the timing of certain judicial elections in the state. The state already elects a governor and the President in the same election year, and the legislation would have placed at least some judicial elections in interceding cycles (2022, 2026, and so on). But the law was challenged by coalitions representing state judges, as well as several district attorneys and others elected officials whose terms would be immediately affected. The court concluded that changing the timing of elections could not be accomplished without a change to the state constitution.

The sponsors of the law called the problem “an honest mistake on our part,” and are working to change the effectuate the change through a constitutional amendment.

The most pointless judicial election ever?

One candidate was declared ineligible. The votes were counted anyway. But to what end?

A remarkable story from Alabama. Last fall, prosecutor Linda Hall won the Democratic primary for a seat on the Jefferson County Circuit Court located in Birmingham. But before the general election, her primary opponent challenged her victory, alleging that Hall did not meet the state’s requirement that judicial candidates live in the circuit for at least 12 months before the election.

The court agreed, and held that Hall was ineligible to run in the general election. But the ballots had already been printed, so the primary challenger was left out in the cold. Moreover, the court declared that the votes in the general election must still be counted. Despite her ineligiblity, Hall handily defeated the Republican incumbent, Teresa Pulliam, by 16,000 votes in November.

Unsurprisingly, Hall’s electoral victory brought a new round of litigation, this time by two Jefferson County voters who challenged Hall’s fulfillment of the residency requirement. In a trial in late 2018, Hall testified that over the previous 12 months she had lived in four different apartments in the Birmingham area, as well as a number of extended stay hotels in St. Louis, Missouri. Hall explained that she had to keep moving apartments due to problems with mold, foul odors, and smoking neighbors. By early October — just weeks before the general election — she landed in her final apartment, which was actually located within Jefferson County.

After trial, Hall was again declared ineligible for the judgeship, and enjoined from taking the oath of office. This past week, the Alabama Supreme Court affirmed that decision without opinion.

So, to recap: a judicial candidate who was declared ineligible for office before the general election was nevertheless elected, and later barred from taking office. Three different courts had to get involved. And at the end of the day, the people of Birmigham County had an unfilled judicial seat. (In another twist, Hall’s opponent, Judge Pulliam, was quickly appointed to a different seat on a criminal court. So losing an election evidently isn’t much of a career killer.)

I suspect that there is much more behind this story, at least as to the motivations of those charged with putting judges on the Alabama bench. It isn’t much of a surprise that Judge Pulliam, a Republican, would be reappointed to another seat by the state’s Republican governor. Likewise, I suspect that Ms. Hall’s electoral victory was a product of party and identity politics. Hall is an African-American woman running as a Democrat in a city that is more than 70% African-American and which regularly elects Democrats to office. It is well-established that many (perhaps most) judicial voters have little knowledge of the candidates before them, and accordingly look for low-salience cues like party affiliation, race, gender, or last name to aid their decisions. If the system worked well, voters would have recognized that a vote for Hall was meaningless. But they voted for her in droves.

It may well be that given Alabama’s dark history of racial inequality, a pure appointment process for judges may not create sufficient public trust in the judiciary. Allowing communities to choose their own judges through elections may therefore be a necessary accommodation. But if we are to put judicial candidates before the voters, at least those candidates should be minimally qualified, and at least the voters should be minimally discerning.

 

 

Arkansas prosecutor under fire for collecting signatures for judicial run while trying a murder case

Arkansas prosecutor Stephanie Potter Barrett, who is seeking a seat on the state’s Court of Appeals, has come under criticism after it was revealed that her aunt was collecting signatures to get Barrett on the ballot inside the courthouse. More distressingly, at least one of the signatures favoring Barrett’s candidacy was from a juror seated in a murder trial which Barrett was prosecuting.

Barrett insists that she did nothing wrong; she did not collect the signatures herself, and she argues that the courthouse is a public space at which collection of signatures is permitted. But others are not so sure: several ethics experts pointed out that judges cannot use the courthouse to engage in political activity, and suggest that a judicial candidate should be equally restricted. The defendant in the murder trial is also seeking a mistrial based on the juror signature.

It is entirely possible that Barrett really believes that she has done nothing wrong. And it is also entirely possible that the juror who signed the petition knows nothing about Barrett, or even associated her petition with the individual prosecuting the case. (Some people will sign anything.) But the optics are terrible. The courthouse appears politicized, and the fairness of the murder conviction is in doubt.

Reasonable people may differ over the propriety of choosing judges through a direct election. But elections open the door to these kinds of stories, and these kinds of stories erode public confidence in the judiciary and the administration of justice itself.

West Virginia judges set to receive salary bump

West Virginia’s Supreme Court has been in the news this year for all the wrong reasons, but that did not prevent the state’s Judicial Compensation Commission from recommending a salary increase for all levels of the judiciary. The increase — of more than 18% for most judges — was driven heavily by comparisons to other states. West Virginia currently ranks 53rd among states and territories for judicial compensation.

Judge Larsen on State Courts in a Federal System

Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.

The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.

Continue reading “Judge Larsen on State Courts in a Federal System”

Tennessee courts launch new podcast

The Tennessee courts have launched a podcast entitled “Tennessee Court Talk,” which can be found at the courts’ main website, tncourts.gov.

“The TNcourts.gov website receives nearly six million hits each year, and those hits are very focused on legal research regarding how the courts work, court rules and procedures, and recent cases,” said Barbara Peck, communications director for the Tennessee Supreme Court and Administrative Office of the Courts.

“The need for information is there, and the podcast gives us another tool for meeting that need.”
This is a great idea, and I’ll be watching (and listening) to see how it develops.

Supreme Judicial Court reverses course on suspension of Judge Joseph

A guest post by Lawrence Friedman

The tensions between state and federal authorities resulting from the Trump administration’s immigration policies are evident in debates over a proposed southern border wall, sanctuary cities and, in Massachusetts, the indictment of District Court Judge Shelley M. Joseph on obstruction of justice charges. An April 25, 2019 grand jury indictment alleges misconduct in her courtroom involving Immigration and Custom Enforcement officials and immigrants who had been held in state custody. While the federal criminal process moves forward in the wake of Joseph’s not-guilty plea, the federalism and state sovereignty issues have featured in a separate proceeding concerning her initial suspension without pay by the Massachusetts Supreme Judicial Court (“SJC”) in an order issued the same day as the grand jury indictment.

The SJC based its initial order “solely on the fact that [Judge Joseph] had been indicted for alleged misconduct in the performance of her judicial duties.” Joseph subsequently sought partial reconsideration, arguing that she should be suspended with pay, rather than without; and that she should be suspended only from her judicial duties. Following a nonevidentiary hearing, the SJC issued a revised order on August 13: a majority of the justices concluded that suspension with pay was appropriate in the unique circumstances of the case, and denied Joseph’s request to be assigned administrative duties.

The court was right to grant reconsideration and reverse course on the question whether Joseph should be paid during her suspension. It initially imposed suspension without pay absent any inquiry into the circumstances surrounding the federal indictment, relying for guidance on precedent as well as the Massachusetts Trial Court personnel policy and state statutes. Past suspensions notably had been imposed following findings indicating circumstances in which discipline was appropriate. As for the Trial Court policy, it provides that “[a]n employee who is indicted for misconduct in office … shall be suspended without pay until the conclusion of the criminal proceedings,” while Massachusetts General Laws Chapter 30, Section 59, and Chapter 268A, Section 25 authorize the suspension of state officers and employees during any period they are under indictment for misconduct. These rules, as the SJC observed in Massachusetts Bay Transportation Authority v. Massachusetts Bay Transportation Authority Retirement Board, serve “to remedy the untenable situation which arises when a person who has been indicted for misconduct in office continues to perform his [or her] public duties while awaiting trial.”

Notwithstanding the laudable aim of the rules, their automatic application to a judge may be problematic—particularly when the criminal allegations involve conduct in the courtroom, as opposed to actions outside the scope of the judicial function. Here, the SJC’s initial reliance on the mere fact of the indictment as a basis for suspending Joseph obscured a legitimate concern about prosecutorial intrusion into a trial judge’s authority to control her own courtroom. That a federal prosecutor sought the indictment, moreover, potentially raises federalism and separation of powers issues. In these circumstances, some kind of pre-suspension inquiry was warranted—an inquiry that the SJC ultimately made through the hearing on Joseph’s reconsideration motion, aided by the briefs of the parties and amici on the question of whether her suspension should be with or without pay.

No doubt, the SJC’s decision to reconsider the terms of Judge Joseph’s suspension will offend many Massachusetts citizens; as Justice Frank Graziano argued in his dissent, they will see the court as according a judge special treatment by restoring her pay. But, as the concurring justices noted, the decision to suspend Joseph without pay effectively denied her the ability to mount a defense to the criminal charge against her—a charge that may well implicate both judicial independence and the sovereign authority of the state judiciary itself. By ordering suspension with pay, the SJC has given Joseph the ability to mount a vigorous defense—in the knowledge that her trial may well test the extent to which state and federal law enforcement officials can act in spaces that traditionally have been seen as beyond their reach.