Legal industry responds to coronavirus crisis with “calls for kindness”

I really like this story from Law360, which profiles a number of lawyers and judges across the country who are emphasizing patience and kindness in a profession too often built on time pressure and adversarialism. Some snippets:

On Thursday, [Chief Justice Ralph Gants] sent a letter to the Massachusetts and Boston bar associations, urging attorneys to work with the courts and each other “to create their own version of [mobile triage] units” to figure out how to protect the most vulnerable, preserve individual rights, resolve disputes and carry on.

“If we stand strong, resilient, and adaptive, and work together as judiciary and bar to find ‘duct tape’ solutions to immediate problems that otherwise might take years to solve, we will leave this crisis with a better, more resilient system of justice,” he said.

The judge added, “And perhaps, if we do our jobs well, a future generation will say of us, ‘This was their finest hour.’”

***

U.S. District Judge Amy Totenberg of the Northern District of Georgia issued an order to every case on her docket with some words of advice to attorneys battling it out in her jurisdiction: “Be kind.”

“Be kind to one another in this most stressful of times,” Judge Totenberg wrote. “Remember to maintain your perspective about legal disputes, given the larger life challenges now besetting our communities and world.

“Good luck to one and all.”

A subscription to Law360 may be required to read the whole article, but access it if you can. It’s a nice reminder that when the moment calls for it, we can surely become our better selves.

 

Courts embracing video in wake of coronavirus pandemic

With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.

Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.

There will be much more to say in this story as it develops. Stay healthy and sane, everyone.

Coronavirus and the legal system in Massachusetts

Like almost every law professor in the country, I will be teaching from home for the next several weeks. It’s been a quick adjustment to become competent in online learning platforms, but we’ll make it work. Someone recently pointed out that Gen Xers like me are mentally prepared for something like this, having grown up in the waning years of the Cold War. My millennial students get props for taking all of this is stride as well. In the meantime, blogging may be a bit lighter than normal as I juggle work and family from home.

Last night, the governor of Massachusetts shut down all K-12 schools, and most restaurants and bars, until April 7. The state courts are following suit with their own precautions, trying to thread the needle between providing access to justice and protecting the larger needs of the community. The trial courts have announced a triage plan, effective this Wednesday, that will rely heavily on videoconferencing and staggered schedules. The Supreme Judicial Court (SJC) entered two additional orders, one postponing all new jury trials until at least mid-April, and the other limiting access to state court facilities for anyone who is likely exposed to or carrying COVID-19.

We are in the thick of social distancing now, and these measures all make sense. It will be interesting to see how much videoconferencing and online communication with the courts is retained once things return to normal.

 

 

U.S. Supreme Court closes in response to coronavirus threat

SCOTUSBlog reports:

Shortly after the White House and Congress announced that they would close to the public due to increasing concern over the coronavirus, the Supreme Court this afternoon followed suit. In a brief notice posted on the court’s website, the court announced that it would close to the public as of 4:30 p.m. today and would remain closed “until further notice.” However, the court indicated that its building would “remain open for official business” and that filing deadlines would not be extended.

The closure comes during what would normally be a relatively quiet period at the court: The justices wrapped up their February argument session last week and are not scheduled to hear oral arguments again until March 23. There has been no word from the court on whether the March argument session will take place as scheduled and, if so, whether members of the public will be admitted to watch the argument. Yesterday the public health department in Washington, D.C., recommended that “non-essential” gatherings of more than a thousand people be canceled as one way to fight the spread of the virus. The courtroom seats approximately 400 people.

The notice announcing the closure indicated that the Supreme Court’s building was being closed to the public because of “concern for the health and safety of the public and Supreme Court employees.” Two of the justices are in their eighties: Justice Stephen Breyer is 81, while Justice Ruth Bader Ginsburg will be 87 next week. Justice Clarence Thomas is 71, while three more justices are in their sixties: Justice Samuel Alito is 69, and Chief Justice John Roberts and Justice Sonia Sotomayor are both 65.

Gabe Roth, the transparency advocate from Fix the Court, sees this as another argument for livestreaming. He sent out the following press release this afternoon:

Given the crowds that often gather in and around the Supreme Court, not to mention the advanced age of several of the justices, it’s the right call to close the building to the public until further notice.
That said, if this state of affairs continues through March 23 – the next time the justices hear arguments – the Court should at a minimum permit the public to listen to a livestream of argument audio from its website.
We believe the Court already has this capacity, as it streamed a Justice Scalia memorial service in Nov. 2016, and any technological gaps could be filled in by the nearby D.C. Circuit, which since Sept. 2018 has offered live online audio for all of its hearings.
Live audio is the smartest way to balance the now-competing concerns of public safety and public access.

How coronavirus is affecting the courts

A roundup of stories concerning the impact of the coronavirus pandemic on state and federal courts:

As coronavirus spreads, some courts shutter, others carry on

DOJ reverses course, tells immigration judges to post CDC posters about coronavirus pandemic

Virus’s Spread Has Courts Bracing for Quarantine Fights

With Threat of Coronavirus Looming, Eleventh Circuit Cancels Judicial Conference

Cook County Justice System Responds to Coronavirus Outbtreak

State and federal courts in Michigan respond to COVID-19 threat

Northern Ohio federal courts take steps to prevent coronavirus spread, though most operations continue as normal

Coughing jurors in coronavirus era will worsen delays for US trials

Virus Complicates Jury Trials as Courts Seek to Limit Spread

Vermont state courts may postpone trials

All jury trials postponed in federal courts in Seattle and Tacoma

Meanwhile, on an optimistic note, the federal Committee on Rules of Practice and Procedure (the “Standing Committee”) announced yesterday that it plans to hold its regular June meeting. Hopefully we’re all back to regular operations well before then.

Stay safe and healthy, everyone.

 

In LA, changing your name to “Judge Mike” won’t get you elected to the bench

Los Angeles County held its judicial primaries on March 3, and one candidate took an unusual approach to attracting voters.

Candidates must list their current (or most recent) occupation in the ballot. Mike Cummins, a retired attorney, had briefly served as a judge in a smaller county in the early 2000s, but was no longer eligible to list his occupation as a judge. So he legally changed his name to Judge Mike Cummins.

The voters were not fooled. Cummins lost overwhelmingly to his opponent, Deputy DA Emily Cole.

And for those who were following the judicial hopes of former child actor Troy Slaten, alas, he too lost handily in his LA County primary this week.

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

…

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

What does coronavirus have to do with court budgets? In some places, everything.

The Northern Mariana Islands are a U.S. commonwealth located in the tropical climes of the Pacific Ocean. Unsurprisingly, much of the Islands’ income comes from tourism, and when tourism drops, government budgets shrink.

A sharp decline in tourist arrivals after the coronavirus outbreak led the territorial governor, Ralph Torres, to implement an across-the-board budget cut of more than 28% for Fiscal Year 2020.  This action trimmed the judiciary’s budget from about $5.6 million to about $4 million. But the judiciary itself apparently lacks the legal authority to reallocate spending in light of that cut, so Chief Justice Alexandro Castro has sought special permission to obtain “full reprogramming authority” in order to make the diminished budget work.

Another small but dramatic piece of evidence of how courts, like all public and private organizations, are influenced by the external environment.

 

Alaska Chief Justice recuses himself in gubernatorial recall case

Alaska’s Chief Justice, Joel Bolger, has recused himself from a case involving the legality of a campaign to recall the state’s governor, Mike Dunleavy. Bolger made the decision in light of his previous statements criticizing the governor for failing to follow established procedures in appointing a district judge. Bolger also told audiences that Alaskans should resist “political influence” over the judiciary and should fight for judicial independence.

The Court invited interested parties to file motions seeking Bolger’s recusal, with a February 26 deadline. No motions were received, but Bolger determined on his own that recusal was appropriate. In a two-page Recusal Notice, he stated:

As stated previously, I do not have any personal bias or prejudice concerning the parties or attorneys involved in this case.  However, I have special public responsibilities as the administrative head of the Alaska Court System and as the chairman ex-officio of the Alaska Judicial Council.  In those capacities, I have made public statements that could suggest a strong disagreement with the governor’s conduct on some very fundamental issues affecting the judicial branch, conduct that forms part of the basis for the recall petition under consideration.  In other words, this is a case where a reasonable person might question whether my judgment is affected by my overriding public responsibilities to the justice system.

Earlier thoughts on Bolger’s comments, and the propriety of judges speaking out, here.

The Court will consider the legality of the recall on March 25, with retired Justice Robert Eastaugh filling in for Bolger. It is widely expected that the Court will uphold the validity of the recall effort.

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”