Yesterday, the Supreme Court of Colorado and the Supreme Judicial Court of Massachusetts respectively sent letters to their registered attorneys, informing them of recent measures taken to address the COVID-19 pandemic. Massachusetts will be extending its courthouse closures for most matters, including all jury and bench trials, while tolling statutes of limitations through the end of May. Colorado has delegated considerable administrative decisionmaking authority to the chief judge of each judicial district, in acknowledgement of the different circumstances and available resources in each district.
Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.
It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”
Separate stories this week show how two state governments are working to reconfigure their court systems in response to growing dockets and concerns about cost, efficiency, and fairness.
In Colorado, a bill to create a new judicial district passed through the House Judiciary Committee. The proposal would split rapidly growing Arapahoe County off from the rest of the 18th Judicial District in order to better (and more fairly) allocate resources among the four counties that currently comprise the district. Arapahoe County has seen a recent spike in criminal prosecutions and especially murder trials (a depressing fact for this former Coloradan), and the growing criminal docket led many to believe that placing it in its own new judicial district would be BBC a better use of resources. The bill has broad support. If passed, it would go into effect in 2025.
In New York, the court system itself is taking the initiative to improve its efficiency and administration. This article by Chief Administrative Judge Lawrence Marks points out that consolidating the state’s Byzantine court system (which currently has 11 different trial courts) would save litigants and the public hundreds of millions of dollars every year. As in Colorado, the proposal has strong support but would need legislative sign off.
These are nice examples of interbranch cooperation for the benefit of local residents and taxpayers. More like this, please.
In the last 15-20 years, court systems across the United States have slowly begun their own outreach in order to educate the public about their structure and their work. And there is good reason for the courts to take on this mission. The loss of robust civics education in many communities, combined with the flattening and sharpening effects of social media (which combine to eliminate much of the essential context and nuance from stories about the courts), means that court and judges are at increased risk of caricature.
One of the best programs originated in Colorado. Called “Our Courts Colorado,” it sends state judges to speak to schools and community groups about what exactly it is that the courts do. The program tries simultaneously to demystify the judicial system and to educate people about the important work of the courts.
The idea is spreading, slowly but surely, to other common law countries. New Zealand recently unveiled its own nine-minute video describing how the courts work. The video (also called “Our Courts”) is a little dry, but it has many subtle strengths. It shows judges in ordinary business dress, which humanizes them. It clearly explains the different levels within the court system, and the responsibilities of each court. And the video is available in three languages: English, Maori, and Mandarin.
Courts increasingly need to be their own advocates, and that includes assuring basic public familiarity with their work. This is a nice step forward in New Zealand.
Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:
In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.
In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.
It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).
The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.
In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.
Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program. Several other judges were targeted by anti-retention groups or individuals, but had received strong performance evaluations and were comfortably retained by voters.
In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.
New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.
In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.
And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.
UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.
This November, Coloradans will vote on Amendment W, a proposal to streamline the state’s ballot for judicial retention elections.
Currently, for each state supreme court justice facing retention, the ballot contains the question, “Shall Justice ___ of the Supreme Court be retained?” For judges on other courts, the ballot takes a similar form: “Shall Judge ____ of the ___ Court be retained?” If passed, Amendment W would allow county clerks to ask a single retention question applicable to all judges on the ballot: “Shall the following Justices (Judges) of the Supreme (or other) Court be retained in office?” The judges seeking retention would then be listed by name, with an option for Yes or No next to each name.
This has been billed as a cleanup measure which would shorten ballots, saving counties money and increasing voter participation in down-ballot judicial retention elections. It garnered bipartisan support in the state legislature, and has not been subject to any organized opposition. I suspect it will pass easily.
But I also wonder if there will be unintended consequences flowing from the shorter ballot. Partisan efforts to remove judges for specific decisions are aimed mostly at appellate judges, and count on voters to be ignorant about the court system. The shorter ballot exacerbates voter ignorance, by eliminating one more piece of information to help voters distinguish among the judges on the ballot. Put differently, without court designations on the ballot, some voters might not remember which judge they think they should remove, and so might just vote to remove them all.
This scenario is not likely, but neither is it unimaginable. A shorter ballot may be good for election administration, but it also presents more work for the judiciary, the bar, and the judicial performance evaluation committees in their efforts to educate the public about the real work of the courts.
…and they require a lot more manpower than what the public might see at first glance. Courts need judges, clerks, and staff attorneys, to be sure — but they also need custodians, security officers, chefs, IT professionals, accountants, operations administrators, and every other type of job that allows large organizations to operate smoothly.
That point was recently driven home by this quirky job posting on the website for the United States Bankruptcy Court for the District of Colorado:
Apply for the full-time position of Database Specialist or Programmer for the United States Bankruptcy Court for the District of Colorado, and join us as a respected and valued cog of the massive federal bureaucracy.
We work eight-hour days, rarely ever work after hours, and are not on call. Best of all, we have a benefits package that even the largest corporate conglomerate can’t (read won’t) offer, including a healthcare plan shared by members of the Supreme Court, all Federal Holidays off, amazing amounts of paid leave and separate sick leave, inclusion in one of the best rated, lowest cost retirement funds, and wait for it . . . a generous, guaranteed annuity (pension) backed by the Federal Government! You can work and have a life.
This job description is not exactly imbued with the deep solemnity that John Roberts tries to cultivate in all aspects of the federal courts’ public persona. But perhaps that is the point. It’s a job posting for a database specialist, not a judge, and is (evidently) written to attract the best candidates for that specific position. Some database specialists may dream of working specifically in the court system. But I suspect that most don’t care too much about the organization’s day-to-day work, as long as the job is interesting, pays well, and has good benefits.
Bravo to the supervisors who allowed this posting to go up, and for giving us glimpse into the real people who make the courts run.
In the fall of 2006, a partisan group in Colorado tried to convince that state’s voters to adopt a ballot initiative that would retroactively remove five of the state’s seven supreme court justices. The justices’ offense? They were all appointed by the same Democratic Governor over a span of a decade. Proponents of the measure argued that the targeted justices had decided cases in a blindly partisan manner, notwithstanding all evidence to the contrary. An exhaustive and concerted effort by the state bar and other groups eventually stopped the initiative from passing, but the bad taste of populist politics remained. In 2010, a group calling itself “Clear the Bench Colorado” again tried to remove four state supreme court justices by voting for non-retention. Again, the effort was unsuccessful.
Instrumental to countering these “clear the bench” messages has been the presence of a longstanding and well-respected judicial performance evaluation (JPE) program in the state. For nearly twenty years leading up the 2006 ballot initiative, state judges had been periodically evaluated by local commissions, and the evaluation results shared with the public leading up to each judge’s retention election. As I have documented in this article, the Colorado JPE process should be credited not only with convincing voters that their judges were highly competent and professional, but also that occasional controversial decisions needed to be placed in broader context in determining whether a judge should remain on the bench.
Unfortunately, the same trend is now infecting Colorado’s southern neighbor. A group calling itself “Clear the Bench New Mexico” is calling on voters to “fire” judges who have issued sporadic controversial decisions by voting to not retain them in office.
But maybe New Mexico’s JPE well-established can serve a similar heroic role. As set out here, the process takes a comprehensive look at the judge’s work twice during his or her term in office, focusing (as with other JPE programs) not on case outcomes, but on each judge’s capacity and commitment to providing a fair process. Individual evaluations are posted for each judge facing retention, and voters can read these evaluations and make up their own minds.
A common complaint about JPE is that retention voters rarely read the full evaluations. Many choose not to vote at all with respect to judges, and others vote haphazardly — focusing, for example, on the judge’s last name or perceived gender, or whether the judge is recommended by a lawyer friend. So there is much work to be done for the JPE process to meet its full potential. But surely it is a better way to inform the public than the half-baked wranglings of political partisans.
The Denver Post has a great story on the successes of a problem-solving court in Eagle, Colorado. The court was created seven years ago by a state judge, working in tandem with the local Masonic Lodge, to provide a new approach to individuals facing drug and alcohol addiction. Rather than jail time, first-time drug and alcohol offenders are given a chance to work toward sobriety. The expectations are high, but offenders who choose that route are supported throughout the program, and the Masons provide scholarships to some program graduates to facilitate vocational and professional training. While not everyone makes it through the program, those who do are better off in immeasurable ways.
State courts across the country have recognized over the last two decades that not all legal infractions are best resolved through traditional criminal justice. This is a nod to reality, not leniency — and it is a nice example of the courts reinventing themselves (in part) to best serve the needs of their constituencies.
Today, the Senate Judiciary Committee will consider a number of President Trump’s judicial nominees, including current Idaho state judge David Nye. In related news, the President has nominated Colorado Supreme Court Justice Allison Eid to the Tenth Circuit seat previously held by Neil Gorsuch.
Assuming that Nye and Eid are eventually confirmed by the Senate, their current state seats will become open, and will be filled by their respective state governors from a list provided by a nominating commission. (One interesting twist is that Colorado Governor John Hickenlooper, a Democrat, would be given his fourth appointment to the state supreme court, replacing a more conservative justice with presumably a more liberal one.)
The new judges in Colorado and Idaho will both serve a short, interim term before facing the voters. But the way in which they will face the voters is quite different, and highlights challenges that some states face in attracting qualified candidates for the state bench.