I have a guest post at the IAALS blog today, looking at some of the more interesting developments from last month’s state judicial elections — including the ongoing recount for the Chief Justice seat in North Carolina.
It should come as no surprise that state court systems, like state governments generally, are struggling to adapt to the financial pressures imposed by the coronavirus pandemic. For courts, COVID has meant the closing of courthouses, delays in trials and pre-trial hearings, rapid investment in technology infrastructure, mounting case blacklogs, and a surge in filings — particularly in those areas of the law most affected by economic dopwnturns (like contracts and consumer credit).
Now, as the calendar year turns over, state court administrators are preparing budgets for 2021, and the needs are staggering. And in many states, the extra money is simply not there. Indeed, as this Law360 story explains, a number of state courts expect that a relatively mild budget cut might be the best case scenario.
There are no easy answers. But we might learn from those state court systems that have developed (and are now able to draw upon) extensive rainy day funds, as well as using the current situation as an opportunity to reassess the most important priorities for the court systems and the communities they serve.
The New York Daily News has a very interesting feature on the Manhattan’s specialized mental health court, and the special challenges facing those who would like to use it during this pandemic-stricken era.
Only a handful of cases ever make it to Manhattan Mental Health Court, according to data provided by the district attorney — and that was before COVID-19 ground the city to a halt. On Friday, after tentatively opening some courtrooms for trials and hearings over the summer, the Office of Court Administration once again shut down most in-person proceedings, citing a recent surge in the virus.
Even pre-COVID, the mental health court moved at a plodding pace. In 2018, the office received 74 requests for referral. Of those, prosecutors consented to refer 43 cases — about 58% — and declined to refer the rest. In 2019, the office got 136 requests. They consented to 46 cases — about 34% — and declined to refer the remaining 90.
The office referred three cases this year before the court shutdown in mid-March because of the coronavirus pandemic. Twelve cases were not referred to mental health court, though two of those were referred to another diversion court. Thirty-five are pending.
The whole story is worth the read, especially for those interested in how specialized state courts can make a difference in people’s lives — if they are accessible.
Earlier this month, Illinois Supreme Court Justice Thomas Kilbride became the first member of that court to lose a retention election. More than 57% of voters elected to retain Kilbride on the court, but because of the state’s unique rules requiring more than 60% of voters to support retention, Kilbride lost his seat.
Now his replacement has been named. The state supreme court has appointed Judge Robert Carter, a veteran of the state bench for more than 40 years, to complete Kilbride’s term through the 2022 election.
Carter seems to be an excellent choice. He is highly experienced, and has stated that he has no interest in running for the seat when it comes up again in two years. That will allow for a fresh start among candidates who want a full term. In this sense, Carter is playing the role akin to a U.S. Senator temporarily appointed by the state’s governor to fill a vacancy.
Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.
The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.
There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).
So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).
Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.
Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:
In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)
In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)
In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.
And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.
On Monday, Massachusetts Governor Charlie Baker nominated Judge Delila Argaez Wendlandt to serve on the state’s Supreme Judicial Court. She would take the Associate Justice seat vacated by Justice Kimberly Budd, who is taking over as Chief Justice after the untimely death of former Chief Ralph Gants.
Will Baker nominate yet another sitting judge to fill Argaez Wendlandt’s seat on the Massachusetts Appellate Court? Triple appointment cascades at the state level are not unheard of, but also are not an everyday occurrence. Indeed, it is just as likely that Baker will nominate a government attorney or one in private practice. But a little more trial experience on the appellate bench is never a bad thing.
Massachusetts Governor Charlie Baker has nominated Kimberly Budd to serve as the next Chief Justice of the state’s Supreme Judicial Court. Budd is currently as Associate Justice of the Court. She would fill the opening created by the untimely death of Chief Justice Ralph Gants last month.
Justice Budd is an outstanding choice. She is incredibly accomplished, well-respected, and has an excellent judicial demeanor. She will serve the Court, and the people of Massachusetts, well in her new position.
For the first time in seven months, Brooklyn courts will begin to hold jury trials inside courthouses. A number of safety measures have been implemented, including temperature checks, plexiglass screens, and upgraded air filtration systems.
During the last several months, a number of courts worldwide held jury trials outdoors or in large, socially distanced venues. As winter approaches (in the Northern Hemisphere, at least), trials will have no choice but to move indoors. Hopefully they prove to be safe and successful.
I was interviewed extensively for this piece in Denverite about Colorado’s judicial performance evaluation (JPE) program. The primary takeaway is that voters should feel very comfortable with a program that works so hard to evaluate judges on the process (as opposed to the outcomes) of judging.
A number of states have excellent JPE programs, but not enough. Done properly, JPE benefits voters, the general public, and most of all the judges themselves. It should be part and parcel of every state and federal judicial program.