Category: Uncategorized

On due process and immigration policy

Two recent news stories have described how judges are pushing back against the Trump Administration’s immigration policies on the grounds that they violate due process.

The Wall Street Journal reports that immigration judges in San Diego are dismissing Migrant Protection Protocols (a/k/a Remain in Mexico) cases at a 33% rate, much higher than any other locality. The San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico were not properly informed of their court dated or other due process rights. Among other examples, a San Diego immigration judge terminated the cases against a family from Honduras after concluding that the U.S. government did not properly fill out their notice to appear, leaving the migrants uninformed about the grounds upon which they could fight their case. While the immigration judges’ decisions do not necessarily improve migrants’ chances at asylum, they do assure that the affected migrants cannot be banned from coming the country for ten years, as is required under current protocol for those who generally fail to show up for hearings.

Meanwhile, in Boston, U.S. District Judge Patti Saris likewise ruled that the government had violated due process in its immigration court hearings, by requiring a detainee at a  bond hearing to show that he or she was not a flight risk. Judge Saris concluded that the  government properly bears the burden of showing, by clear and convincing evidence, that the detainee was dangerous or a flight risk. The ruling was part of a putative class action lawsuit filed by the ACLU and others on behalf of immigration detainees in New England.

I am no expert in immigration law or policy, and I want to take care to distinguish between immigration judges, who are technically employees of the Department of Justice, and life-tenured Third Branch officials like Judge Saris. But it is heartening, at least to me, to see judges at both levels insisting on basic due process for all those haled into the justice system.

Committee work — it’s not just for academics

With the start of its new fiscal year today, the Judicial Conference of the United States announced the chairs of several of its internal committees. Some of the chairs are new, and others are current leaders who will be retained for another year. The full press release is here.

Although the announcement is relatively pedestrian, it provides a wonderful insight into the inner workings of the federal court system. The names of the committees themselves are suggestive of the range of work that takes place outside of the eye of the general public: The Committee on Information Technology, the Committee on Federal-State Jurisdiction, The Committee on Judicial Conduct and Disability, and the Committee on Space and Facilities, among others.

The Committees are headed by, and mostly populated by, federal judges — the same judges that are managing complex dockets, holding trials and hearings, handling emergency motions, drafting detailed opinions, sentencing convicted felons, and otherwise addressing the judicial work that flows into their chambers daily. The Chief Justice hand-picks each member of each Committee — not just the chairs — and asks each member to take on additional administrative duties for the good of the overall court system. And like all committee work, it seems, the most effective and efficient members are asked to stay longer and do more.

Professors notoriously complain about their own committee work, which takes them away from class preparation, research, and writing (not to mention family). But most still take on the work cheerfully for the good of their respective schools. Judges are no different, and their service in this area is commendable.

Congratulations to all the new chairs.

PACER “can never be free”

On Thursday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled “Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” Like much of what Congress does, the hearing featured a lot of pomp and circumstance with relatively little substance. But there was an interesting revelation from U.S. District Judge Audrey Fleissig, who (along with U.S. District Judge Richard Story) testified before the Subcommittee on public access to the work of the federal courts. Specifically, Judge Fleissig asserted that “Our case management and public access systems can never be free because they require over $100 million per year just to operate.”

The $100 million figure was new to me. That is a lot of money. Now I suspect that the external part of that system — the PACER interface for public access — constitutes only a small part of that overall cost, and that most of the cost goes to internal case management software that the courts would use in any event. So perhaps Judge Fleissig is being a bit selective with her evidence.

Still, I am sympathetic to the statement that PACER can never be free. Someone has to pay for it–the direct users, the court system, or Congress.

I explored the PACER funding dilemma at length here. And I do not expect that a show hearing before a House Subcommittee would really explore these issues in depth. But I do hope (and expect) that someone — both in the court system and in Congress — is thinking about the PACER funding problem with the seriousness it deserves.

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.

Massachusetts judge rejects plea deal in ICE evasion case

Shelley Joseph, the Massachusetts state judge who has been charged with helping an illegal immigrant evade an ICE official in her courthouse, has rejected a plea deal from federal prosecutors. Joseph was suspended from the bench after her arrest.

Joseph’s alleged actions have caused enormous controversy in the Bay State, raising difficult questions of federal-state relations, access and safety in state courthouses, and a wealth of moral and ethical considerations.

MassLive has a full report for those following this story closely.

No vacancies, but a docket crisis nonetheless

I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.

Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.

A fabulous look inside a “traveling court”

The Wall Street Journal has a terrific piece on the day-to-day workings of New York City’s Office of Administrative Trials and Hearings, a court that deals with nearly 1 million cases a year but remains virtually unknown. The court is charged mostly with adjudicating minor criminal offenses and regulatory violations, like errant recyclables and excessive noise. But the job is important: many people who do not address a summons promptly can later find themselves in civil court with much larger fines.

The court has taken an aggressively friendly approach to encourage the accused to show up and contest their case, advertising its existence at swimming pools and community events, and even offering tote bags. And it’s worth it to show up — almost 50% of those who do win their cases.

“We have one goal,” said Deputy Commissioner John Castelli. “To ensure people get due process.”

I absolutely love this. A taste of due process at this level ensures justice and vastly increases public appreciation for the courts and the legal system.

(Access to the story may require subscription.)

 

Louisiana raises judicial salaries

Louisiana legislators voted overwhelmingly last week to raise the salaries of state judges by 2.5% in the coming year. If funds permit, judges would continue to receive equivalent pay raises for each of the four years after that as well.

The source of the funding struck me as noteworthy:

The Louisiana Supreme Court agreed to cover the first year of pay raises for judges — at an estimated cost of $1.8 million — from its substantial cash reserves. It’s unclear whether judges will continue to tap reserves or turn to state taxpayers to cover future raises, which could cost as much as $9.5 million per year if all five annual pay hikes are awarded.

I thought that judicial salaries typically came from funds controlled by the legislature. It’s quite interesting that salaries are to be paid (at last initially) out of the state supreme court’s “substantial” independent funds.