“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.
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.
The slow-moving federal court challenge to Alabama’s method of electing its appellate judges reached another milestone on Wednesday, when the parties gave their final arguments in a case filed back in 2016.
The Alabama State Conference of the NAACP is arguing that the Alabama’s method of at-large voting for state appellate courts impermissibly dilutes the votes of African-American voters, in violation of the federal Voting Rights Act. As evidence, the plaintiffs point to the fact that no black candidate has ever been elected to the state’s civil or criminal appellate courts, and only two have been elected to the state supreme court. The state has countered that standard party politics, not race, provides the best explanation for the election outcomes.
A federal judge denied the state’s motion to dismiss the case, and held a bench trial last November. After a lengthy delay brought on by the state’s appeal to the Eleventh Circuit on the denial of the motion to dismiss, the trial court held oral arguments to conclude the bench trial this week.
There is no indication when the judge will issue his decision. But whatever his final ruling, this case is a nice example of how life tenure shields him from some of the inevitable political fallout that will result from any decision he makes. If only his counterparts on the state bench enjoyed that same freedom from political pressure. But as both sides in the case made clear on Wednesday, viewing judges as politicians seems to be par for the course in Alabama.
I have a guest post up at the IAALS Blog, which looks at a renewed effort to survey attorneys about judicial performance in Nevada. But unlike formal judicial performance evaluation (JPE) programs in other states, these surveys will be sponsored by the state’s largest newspaper, the Las Vegas Review-Journal. Another difference: the surveys are designed in part to identify poor-performing judges this fall so as to attract election challengers for 2020. I find this second aspect particularly uncomfortable and largely inconsistent with the voter education and self-improvement goals of typical JPE programs, but judge for yourself.
Judge Bradley Jacobs, who presides in the Clark County (Ind.) Circuit Court, will return to the bench after spending three months recovering from a gunshot wound. Judge Jacobs and a colleague, Drew Adams, were shot outside a White Castle restaurant in Indianapolis in the wee hours of the morning on May 1. They were in town for a judicial conference.
Judge Adams, the gunman, and one other man have been charged in the incident. Judge Adams has since been suspended from the bench for his role in the fight. Judge Jacobs was not charged.
Two recent stories illustrate the slippery role that stereotypes and identity politics play in state judicial elections. In Louisiana, judicial candidate Ron Johnson appeared in campaign ads wearing his twin brother’s judicial robe and calling himself “Judge Johnson.” (His brother is a sitting judge.) Johnson admitted his mistake and accepted responsibility for it, but the intent was clearly to send the message that he was an incumbent judge — and probably to take advantage of the professional goodwill his brother had already amassed on the bench.
Elsewhere, Caroline Cohen defeated three other candidates for a seat on the civil court bench in Brooklyn’s 6th judicial district last Tuesday. But one of her opponents, Tehilah Berman, charges that Cohen — nee Caroline Piela — took her husband’s identifiably Jewish last name shortly before the election in order to attract Orthodox Jewish voters in the district. Cohen apparently also ran ads in Jewish publications with the Biblical injunction “Justice, Justice shall you pursue.” Berman, who finished last in the race, claims that Cohen deliberately presented herself as a devout Jew in order to draw in votes.
We have seen sketchy campaign behavior before, including judicial candidates cynically manipulating their names for electoral gain. Last year, an even more egregious example was set when Chicago lawyer Phillip Spiwack named changed his name to Shannon O’Malley on the theory that a female, Irish name would make him a shoo-in with Cook County voters. Sadly, it worked. In another recent incident, a Nevada judge seeking reelection photoshopped Dwayne “The Rock” Johnson alongside her in a print ad, even though he had never endorsed her candidacy.
But seeing these two most recent incidents side by side was particularly striking, because they both undermine public confidence in the judiciary, but in opposite directions. Ron Johnson’s impersonation of a sitting judge preyed on the positive stereotypes that voters associate with the judicial robe. As I explain in part here, citizens associate the generic judge with a high level of impartiality, dignity, and inherent sense of fairness. When a judicial candidate dons the robe and is later found to have acted unethically, positive associations with the robe and the judiciary go down.
Caroline Cohen’s name switch (occurring as it did months before the election, and after 13 years of marriage) was arguably even worse, as it sought to take advantage of the modern identity politics that have been sown so dismayingly at the national level. Cohen was banking on Orthodox Jewish voters choosing “one of their own” at the polls, having done no other homework on the candidates or their qualities and qualifications. She turns out to have been correct in that assumption (and indeed, similar behavior has been recorded in various parts of the country for decades), but at what cost? The entire episode moves public beliefs about the judiciary away from the ideals of neutrality, experience, and competence, and closer to the cynical wisdom of “she is one of ‘my’ people, and will put a finger on the scale for me if I ever need it.”
Modern politicians use identity politics divisively to create natural voter bases, and to later whip those bases into a froth with perceived slights against their group. The whole premise is degrading, dehumanizing, and de-democratizing, albeit an effective tool in our troubled times for the small-minded politician. Judges and judicial candidates, however, can never afford to peddle in the cramped and dark politics of identity. In doing so, they give away their greatest assets: the promise of equal justice for all.
In early May, a thoroughly bizarre and tragic story came out of Indianapolis. Two Indiana state judges, in town for a statewide judicial conference, had been shot outside a White Castle restaurant in the wee hours of the morning. Both men survived the shooting, and police concluded early on that they had not been targeted because they were judges, but the incident left the entire state judiciary shaken.
Now another strange turn: one of the injured judges, Andrew Adams, has been indicted by a grand jury for his role in the incident. He faces seven counts of low-level felony and misdemeanor charges.
The prosecutor has been very careful to stress the complicated nature of the investigation, which involved two grand juries and everyone claiming self defense. In the meantime, the Indiana Supreme Court has suspended Adams without pay, pending the outcome of the criminal charges and any related disciplinary proceeding.
I did not post about the shooting when it happened because the facts seemed so uncertain. But moving forward, the story certainly bears watching.