What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

U.S. Courts seek information on cloud services

The Administrative Office of the U.S. Courts has issued an RFI seeking information on cloud-based services to support the federal judiciary’s current and future IT needs. While the judiciary is not yet seeking proposals or looking to hire a provider, it is very interested in learning about the implementation of cloud broker contracts within other areas of the federal government.

Another under-the-radar example of how the courts operate like major organizations quite apart from their public personae as robed oracles of the law.

Federal court filings increased by seven percent last year

That’s one immediate and important takeaway from the Annual Report of the Director of the U.S. Courts, published today. I shall have more to say about this once I have digested it — but business appears to be booming.

The PACER class action and the problem of court funding

Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?

What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.

I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.

Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.

I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”

Shutdown starting to affect federal court operations

Although the federal court system managed to find sufficient “no year” funding to stay open one more week (until January 18), the ongoing federal government shutdown has begun to affect the system’s daily operations. Several district courts are reportedly staying some civil cases, especially those involving the U. S. government as a party. Courts are also cutting back on operational spending such as travel, supplies, and new equipment.

All court employees are continuing to receive full pay as of now, but if the shutdown continues beyond the 18th, non-essential employees would be furloughed and essential employees will continue to work without a paycheck. In small district courts like the Northern District of Iowa, staffing is already sufficiently thin that all employees would be considered essential even if funds were to run out.

As bad as this news is for the courts, it dramatically illustrates the importance and wisdom of the AO’s internal budgeting operations. As I have discussed elsewhere, it was not until the late 1930s that the federal court system obtained control over its own budget. Even though the courts cannot control how much money they receive from Congress, the ability to manage that money with forethought is exactly why they have been able to weather the shutdown (at least for now) while other federal government offices have closed or reduced operations.

Consider, for example, the dire situation at the Justice Department, where the Antitrust and Civil Divisions already have reportedly furloughed more than half of their staffs. As a Bloomberg story explains:

A continued shutdown could seriously hamper some of the civil division’s broad and crucial mandates that range from ensuring healthy market competition and weeding out Medicare fraud to defending the U.S. in lawsuits and recouping money for the Treasury. The effect could then spill over into the department’s criminal division and federal courts, a scenario that could jeopardize law enforcement nationwide.

Not good news. Not good at all.

 

Update on legislation affecting the federal courts

Members of Congress have recently introduced several bills that would affect the staffing, administration, or jurisdiction of the federal courts. Among them:

  • The Injunction Authority Clarification Act of 2018 would prevent a court from enforcing an injunction against a non-party to the suit, “unless the party is acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Howard Wasserman has a good analysis of the bill here.
  • The Electronic Court Records Reform Act of 2018 would ensure free public access to public records on the federal courts’ PACER system. Members of the public are currently charged 10 cents per page to access documents online, unless they obtain a fee waiver from the individual court in which the case is pending. I know PACER can be a meaningful source of income for the court system, but I have long supported opening up PACER access without fee restrictions.
  • The ROOM Act would add 52 new federal district judges, and would require the Supreme Court (by audio) and Courts of Appeal (by video) to stream their oral arguments live when possible, and otherwise with an archive delay. None of these proposals is new, and indeed the addition of district judges has long been requested by the courts themselves.

We’ll see if, and how, any of these nascent pieces of legislation develop.

Senate Judiciary Committee holds hearing on federal court workplace harassment

Last week, Senator Charles Grassley promised to hold a hearing on the federal courts’ response to workplace harassment, which culminated in a working group report. The Washington Post reports on that hearing here.

From the story:

Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, said in her opening statement that she was troubled by some aspects of the report.

“I’m also concerned that the working group’s report didn’t quantify the prevalence of sexual harassment in the judiciary and instead relied on previous EEOC data,” said Feinstein, using an acronym for the Equal Employment Opportunity Commission.

Grassley said in an interview that the report seemed like a way to “create the appearance of caring” while leaving “employees of the judicial branch without a vehicle for reporting abuses.”

The Iowa Republican said he would like to see an independent watchdog for the judiciary that could take and investigate reports of harassment. While Congress could theoretically get involved with legislation, he said, that might be difficult to accomplish in practice.