Montana Republicans increase political pressure on state supreme court

Republican officials in Montana, who declared open season on their own judicial system earlier this year, fired a new salvo at the courts late last week. State Attorney General Austin Knudsen requested that the entire state supreme court recuse itself in a case involving a legislative subpoena of internal court documents.

In March, Governor Greg Gianforte signed into law a bill that would eliminate the state’s Judicial Nomination Commission, and allow the governor to fill judicial vacancies directly. Several weeks ago, the Republican legislature issued a subpoena to the state court administrator, seeking internal emails and other court documents (Including an internal poll) in which state trial judges allegedly expressed opinions on the constitutionality of that legislation. The court administrator asked the state supreme court to quash the subpoena, and Chief Justice Mike McGrath recused himself from that determination because he had lobbied the governor not to sign the bill. The remaining six members of the state supreme court quashed those subpoena in mid-April, pending a further hearing.

The AG now asserts that all members of the supreme court are directly conflicted from participating in any future hearing on the issue, because they would be ruling on access to their own internal documents. The justices’ continued participation in the case constitutes, in the AG’s words, “not merely the appearance of impropriety. This is actual impropriety.”

At first glance, state Republicans have laid a trap for the judiciary worthy of a cartoon villain. If the remaining justices recuse in order to avoid the appearance of impropriety, the Republicans will challenge any replacement judges on same grounds until they find judges that they feel will rule in their favor. On the other hand, if the justices decline to recuse themselves, they will face continued allegations of bias and impropriety, and will come under heavy political pressure to allow the subpoena to go forward.

Never mind that the allegations of impropriety appear to have absolutely no merit. None of the six justices on the court have spoken in any official public capacity about the subpoenas or the pending legislation. But that is beside the point: the real purpose of the recusal motion is to turn public opinion against the courts by painting the judiciary as hopelessly biased.

There is a way out of this trap, but it will require several careful steps.

Continue reading “Montana Republicans increase political pressure on state supreme court”

James Duff to leave AO

James Duff, the longtime Director of the Administrative Office of the U.S. Courts, will retire from that position on January 31. Duff served two stints as Director, from 2006-2011 and again from 2015 to the present. During his tenure, he has brought many significant improvements to the federal courts system’s internal operations and external relationships, including overseeing the federal Working Group on Workplace Conduct and helping the courts quickly adjust to the challenges posed by the coronavirus pandemic. Not every initiative on Duff’s watch has been a success — the effort to bar judges from associating with the Federalist Society and the American Constitution Society was ill-advised from the start — but overall Duff has helmed the AO with a steady hand and extraordinary competence and vision.

Chief Justice Roberts has appointed U.S. District Judge Roslynn Mauskopf as the new AO Director. She will be the first woman to lead the AO in its 81-year history. We wish her the best in the new position.

Concerns about India’s judiciary remain unresolved

Almost three years ago, four justices of India’s highest court held a press conference to publicly air concerns about the administration of justice in that country. The press conference made international news, but it appears that it has not catalyzed significant change. At least, that it the view of this op-ed:

It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.

If true, this was a profoundly serious charge.

There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.

There is still no transparency in the selection of judges.

The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.

I wonder if this will get new traction in the coming year.

State courts extend and explain COVID-19 protocols

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.

COVID-19 and the courts: Where we are and where we might be going

A glance at the recent developments, and what to look for in the future.

It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.

Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”

Chief Justice makes new appointments to the Executive Committee of the Judicial Conference

Judge Claire Eagan (N.D. Okla.) is the new Chair, replacing Judge Merrick Garland. Judge Lavenski Smith (8th Circuit) also joins the Committee as a new member.

More on the Executive Committee here.

Two states aim to reorganize court structure to promote efficiency and fairness

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.

Guam judiciary releases four-year plan

The Judiciary of Guam has released a four-year plan that outlines its objectives and goals through 2023. The judiciary worked with the National Center for State Courts in implementing the plan, using a High Performance Court Framework. According to a short story in the Guam Daily Post:

This framework aims to provide a comprehensive set of organizing concepts that describe what a high-performing court seeks to accomplish, demonstrates how a court’s objectives are affected by its managerial culture, identifies measurable categories of performance, and suggests approaches on assembling and using performance information.

There is nothing earth-shaking about the plan or the framework, but that it precisely why I note it here. It’s another reminder that courts of are typical organizations in many ways, and exhibit typical organizational behavior more often than not.

Iowa courthouse break-ins were arranged by … the Iowa courts?

“This has been quite an odd case,” said one state senator.

Last month, two men were arrested for breaking into the courthouse in Dallas County, Iowa. The same men were charged with burglarizing the Polk County courthouse around the same time. Now it has come to light that they were hired by the state court administration in order to test courthouse security.

The men apparently broke into the Polk County courthouse after hours on one occasion, then had to break back in after they realized they had left some things behind. They were not caught until the third break-in in Dallas County. Last week, Iowa Chief Justice Mark Cady admitted that they had been hired by the court system itself, which had proceeded without notifying law enforcement or any other governmental branch.

Chief Justice Cady apologized for the snafu, and stated that the court system and the security company had “differences in interpretations” of the security company’s contract.