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.
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”
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.
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.
“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.
With the start of its new fiscal year today, the Judicial Conference of the United States announced the chairs of several of its internal committees. Some of the chairs are new, and others are current leaders who will be retained for another year. The full press release is here.
Although the announcement is relatively pedestrian, it provides a wonderful insight into the inner workings of the federal court system. The names of the committees themselves are suggestive of the range of work that takes place outside of the eye of the general public: The Committee on Information Technology, the Committee on Federal-State Jurisdiction, The Committee on Judicial Conduct and Disability, and the Committee on Space and Facilities, among others.
The Committees are headed by, and mostly populated by, federal judges — the same judges that are managing complex dockets, holding trials and hearings, handling emergency motions, drafting detailed opinions, sentencing convicted felons, and otherwise addressing the judicial work that flows into their chambers daily. The Chief Justice hand-picks each member of each Committee — not just the chairs — and asks each member to take on additional administrative duties for the good of the overall court system. And like all committee work, it seems, the most effective and efficient members are asked to stay longer and do more.
Professors notoriously complain about their own committee work, which takes them away from class preparation, research, and writing (not to mention family). But most still take on the work cheerfully for the good of their respective schools. Judges are no different, and their service in this area is commendable.
Congratulations to all the new chairs.
There is something odd about the tone of this e-newsletter from Illinois Chief Justice Lloyd Karmeier. It is ostensibly announcing good news about a significant funding increase for the Illinois state court system in 2020. But Karmeier takes a weird stab at his colleagues on other, “dysfunctional” state courts, as well as lamenting the same “dysfunction” of the other branches of government in his own state. The article itself is a fairly benign piece praising the court system’s new “workable” budget, but it is written with a bit more color than one might expect from a state chief justice.
Karmeier’s election to the Illinois Supreme Court in 2004 was rife with political intrigue, and I do not follow the Illinois courts enough to speak to his professional mannerisms or various political pressures on the courts of that state. Readers can judge for themselves whether I am reading too much into this.
The United States Courts will use court fees and reserve resources to operate during the current government shutdown. The Courts can continue to operate for about three weeks, until January 11, 2019.
Two stories coming out of India caught my eye this past week. The first was an op-ed discussing the ongoing debate about the use of MBA-qualified court managers to gain better control over the administration of the court system. Given the shocking backlog and delay in many of India’s courts, appointing special managers to help streamline the case management process makes good sense. But as is the case with most organizations, the introduction of “outsiders” to clean up an internal mess poses a threat to those already working within the system. Fixing this will require a cultural shift within the Indian court system, probably from the top down. But it will not be easy.
In an unrelated story, but one reflecting some of the same difficulties, an attorney was held in contempt of court and jailed for one month for making disparaging remarks about the court on Facebook. The court referred to the “judge bashing” as a form of browbeating, terrorizing, or intimidating judges.
I cannot find the exact social media post that instigated the contempt charge, so I cannot tell whether the lawyer’s actions were an anomaly or something more pervasive. But the whole story suggests an unhealthy relationship between court and counsel. Attacking the courts on Facebook is childish and unprofessional. But jailing a lawyer for a social media post is (at least seemingly) thin-skinned and cowardly. Unless the post called for violence against judges or the court system, a contempt proceeding would seem to do more harm to the courts than a Facebook post ever would.
UPDATE: The entire contempt order can be found here. It does appear that the lawyer’s Facebook comments were pretty obnoxious (although I am not culturally suave enough to decode them entirely). But the court’s 45-page defense of judicial independence and the “majesty of the law” also seems very over the top. Quoting Othello is a particularly odd, cloying touch. A shorter, sterner statement could have addressed the court’s concerns without making the judges appear so professionally and emotionally fragile.