Ohio to consider shielding judges’ personal information from the public

In the wake of the shooting of state judge Joseph Bruzzese on the steps of the Steubenville courthouse in August, the Ohio legislature has introduced a bipartisan bill to shield judges’ personal information from the public. The bill is still in its very early stages.

It is not hard to see why a bill like this might be necessary, but that realization is tinged with sadness. Judges are most effective when they are full members of the community, enjoying the same pleasures (and suffering the same indignities) as ordinary citizens. Grocery shopping, attending community events, waiting in line at the DMV, and similar activities foster an appreciation for everyday life that a judge needs to be an effective mediator, problem-solver, and voice for the community. When our judges are too cut off from the public, or exist in elite bubbles, they cannot have that effectiveness.

The benefits here of keeping a judge’s personal information from the public may well outweigh the costs. But we should be careful not to create a slippery slope in which the public and its judges lose critical opportunities for normal, everyday interaction.

California makes its judicial elections marginally less awful

Governor Jerry Brown has signed a bill requiring judicial candidates in California to appear on the ballot with “actual government job titles” rather than fanciful designations designed to elicit emotional voter reaction.  In recent elections, candidates have sought and received ballot designations like “Child Molestation Prosecutor” and “Gang Murder Prosecutor.” Under the new law, candidates will have to list either their formal job titles (e.g., “City of Los Angeles Deputy City Attorney”) or provide a short, neutral description of their work (e.g., “Attorney at Law”).

The bill had broad bipartisan support, and it is not hard to see why. Allowing candidates to select their own designations may spur the voter reaction needed to win (who doesn’t love a “Gang Murder Prosecutor”?), but badly poisoned the impartiality and legitimacy of California’s elected judiciary. How could any criminal defendant hope for a fair trial before a judge who owed his election to that prosecutorial slogan? Even if the judge was able to transition to a mode of impartial decisionmaker — which many prosecutors have done with great success — who would believe it?

This was, then, an eminently sensible move. But Californians should hardly be complacent. The state’s more than 1500 trial judges are still chosen by popular election, and there is little reason to be confident that merely removing the most egregious designations from the ballot will improve matters much. Over the years, the state’s judicial elections have been poisoned by ethical lapses, the flow of money into campaign coffers, and political dog-whistling.  And there is an alternative: the state uses gubernatorial appointment to fill unexpected vacancies on the trial court (due, for example,  to death, retirement, or promotion), and that process that could be extended to all trial court selection. True, it would take a constitutional amendment, but many states have done just that over the past 70 years.

I am not holding my breath just yet. But until serious judicial election reform comes to the Golden State, Californians are merely editing out the worst excesses of a lousy system.

Australian High Court to determine eligibility of seven MPs to serve in national government

In an interesting example of governmental interdependence, the High Court of Australia will consider this week whether seven Members of Parliament should be disqualified from their elected positions because they hold dual citizenship. Australia requires its MPs to be Australian citizens; the affected legislators are all technically dual nationals, most of whom share citizenship with New Zealand.

That a court should have to make this decision is not itself particularly intriguing. But there are several unusual and interesting dimensions. First, the hearing will take place over three days — significantly longer than, say, the one hour that the U.S. Supreme Court typically allows for cases of similar importance. Second, the decision will have significant ripple effects, especially if the MPs are ruled to be ineligible. Australia’s narrow governing coalition may be put at risk, new elections will have to be called, and earlier decisions made by the MPs (two of whom are also government ministers) could be challenged. Third, the problem might have been avoided long ago: the dual-citizenship issue has been on the political radar for two decades or more, but all efforts to amend the country’s Constitution to address it have lost steam. Ultimately, the High Court will have to make a legal decision with potentially profound political consequences.

Some additional reactions from Down Under can be found here and here.

 

Catalonian judiciary seeks extra protection ahead of independence push

These are tumultuous political times in Catalonia, which voted last week to declare independence from Spain. (The Spanish government argues that the vote, and any subsequent action, are illegal.)  The independence declaration, which may come Tuesday, has spurred the regional judiciary in Barcelona to request extra police presence. Currently the court building is protected by police loyal to the Catalan government; the President of the High Judiciary of Catalonia is requesting further presence by the National Police force.

 

Maine courts plan to digitize court files but not post them online

Maine is undertaking a $15 million program to digitize its court records, but some of those records will only be available to those who physically travel to the courthouse.  The story and commentary can be found here.

Barring an order to seal the records, they really should be made publicly available online.

Indiana’s problem-solving courts and the development of the courtroom workgroup

Those interested in the operations of problem-solving courts might want to skim through various rule changes proposed by the Indiana Problem Solving Courts Committee.  Among the most notable changes, any judge appointed to a problem-solving court bench would be required to participate in an approved orientation program within a year of appointment.  The new rules also clarify the importance of the entire “problem-solving court team” — a group that may include the judge, case managers, attorneys, probation or parole officers, and representatives of addiction treatment, child services, or Veteran’s Administration groups.

Such teams are an expansion of what Herbert Jacob identified as “courtroom workgroups” in the 1980’s.  Jacob and his colleagues observed that in the crucible of the courtroom (especially the criminal courtroom), the D.A., defense counsel, and judge had much more in common with each other than might be anticipated.  They worked together to process hundreds of criminal cases, and developed their own courtroom culture that was not known or understood to those who did not frequent the courtroom.  In particular, criminal defense lawyers found themselves in two worlds — as advocates for their clients, as as friends and colleagues of the judge and prosecutor.  The interests of the specific defendants became almost secondary to the “work” that needed to be done in processing cases.  (Coincidentally, the courtroom workgroup was often clearly, if absurdly, illustrated by the contemporaneous sitcom Night Court.)

Indiana’s problem solving courts appear to embrace the courtroom workgroup in a  healthy way, allowing a team of advocates and decisionmakers to help defendants reach productive resolutions.  Any Indiana resident or attorney is invited to comment on the proposed changes.

 

Federal district court nominee deemed “unqualified” by ABA

U.S. Magistrate Judge Charles Goodwin, of the Western District of Oklahoma, has been deemed “unqualified” for the position of district judge by the American Bar Association’s Standing Committee on the Federal Judiciary. President Trump nominated Judge Goodwin to the district bench in July. The ABA gave no direct explanation for the “unqualified” designation.

Although the ABA’s evaluations of federal nominees date back to the Eisenhower Administration, recall that the Trump Administration has declined to share the names of its potential nominees with the ABA before nominations are announced. That approach (rare, but also used by George W. Bush) increases the likelihood that a nominee will be publicly identified as unqualified. (Potential nominees who receive a poor evaluation before an announcement is made can always be quietly dumped by the administration).

Judge Goodwin’s evaluation was not publicly released by the ABA; it was evidently leaked from a memorandum send to Senators Charles Grassley and Dianne Feinstein.  And Oklahoma’s Senators are standing by the nominee. But now that the evaluation is out, it raises serious questions about the qualifications and temperament of a sitting federal magistrate judge. Although magistrate judges do not serve for life, they do serve eight-year renewable terms. Judge Goodwin assumed the bench in 2013, and would be in place until at least 2021. It might prove to be an uncomfortable four years, and a more uncomfortable reappointment process, if his district court nomination is unsuccessful

 

Tennessee to implement changes to help indigent representation

A task force appointed by the Tennessee Supreme Court has recommended significant changes to the state’s program to provide attorneys for those who cannot afford them, and the court itself has resolved to act on those recommendations.

The Chattanoogan reports:

One key change is an increase in the amount attorneys are paid to work on such cases, a compensation rate that has not changed in 20 years. The Court will seek funding to increase the rates to $65 per hour, from the current $40 per hour for work outside court and $50 hourly for time spent in court. Additionally, current rules “cap” compensation on most cases at $1,000 or $1,500. The Court will request an appropriation in next year’s budget to raise the caps by $500 on all felonies and by $250 on juvenile matters.

Additionally, the Court is endorsing the recommendations to establish an appellate division of the public defenders’ offices to handle all appeals involving those offices, as well as to establish a conflicts division to facilitate representation of more indigent defendants by public defenders in lieu of private attorneys being appointed to the cases.

The entire Task Force report can be found here.

Justice Breyer appears on television to explain why the Supreme Court should not be on television

Justice Stephen Breyer appeared on a television interview with CBS This Morning‘s Norah O’Donnell last Thursday night, portions of which were shown on the television program on Friday morning. Breyer argued that cameras should not be placed in the Court in part because it could change the behavior of lawyers or Justices during argument. The full transcript and some video is here.

This is a silly position. Perhaps cameras would affect behavior a bit, but that change would be marginal at best. The Supreme Court already (and thankfully) has live audiences for its oral arguments — is a lawyer arguing before the Court and more than a hundred observers really likely to be affected by the presence of a camera or two? Nor have the Justices shown any individual reticence to talk to large crowds, or in front of cameras.

Maybe the Supreme Court should just hold its oral arguments in a private room, with only counsel attending, lest the presence of anyone else in the room make the Justices uncomfortable. Or maybe they should embrace the transparency in adjudication that historically has made the United States judicial system the envy of the world.

What just happened? September 2017 roundup

The month in a nutshell: Kenya’s judges render an historic decision, the President’s federal judicial nominations continue apace, Brooklyn judicial elections reach an ugly end, and two federal judges make headlines for attacking their circuit executives

The most remarkable news of September 2017 was the decision by Kenya’s Supreme Court to invalidate that country’s presidential elections amid concerns of hacking and other foul play. The Court ordered new elections within 60 days, but has sustained ongoing verbal attacks in the ensuing weeks. In a far less courageous or moral act, the judiciary of the Maldives suspended the law licenses of one-third of the country’s attorneys who challenged the courts’ practices and politicization.

Stateside, President Trump continued to put forward nominees for openings on the federal judiciary. To date, he has made 105 nominations, far outpacing his immediate predecessor. The nominations are sorely needed, given the ongoing vacancy crisis on the federal bench. Hopefully the Senate will continue to act on the nominations, at least providing the nominees with an up-or-down vote without unnecessary blue slip shenanigans.

Federal judges made news for other reasons as well. Judge John Adams of the Northern District of Ohio sued the Sixth Circuit Judicial Council and the Judicial Conference of the United States for requiring him to undergo a mental evaluation in light of his erratic professional behavior.  And (former) Judge Richard Posner had a shockingly busy month, resigning abruptly on a Friday, attacking his former Chief Judge Diane Wood in an Above the Law interview a couple days later, then releasing a self-published book containing a much more prolonged attack on Judge Wood a couple days after that.

And then there was Brooklyn, where the months-long circus of judicial primary elections finally reached its climax when a slim number of voters apparently decided that a candidate’s gender would be a better proxy for judicial skill than experience, endorsements, philosophy, or demonstrated ability.  Good grief.