Hoping not to be bullied is not a worthy strategy for a co-equal branch of government.
A little over two years ago, the Administrative Office of the United States Courts (AO) issued a new policy which barred its employees and staff from engaging in partisan political activity, including posting yard signs or making ordinary campaign donations. I predicted at the time that the First Amendment implications would likely turn the new policy into a headache for the AO.
And so it did. In May of 2018, two AO employees filed a complaint in the U.S. District Court for the District of Columbia, alleging that the policy violated their First Amendment right to engage in core political speech. Last week, the court agreed, granting summary judgment to the plaintiffs and promising to enter a permanent injunction preventing the AO from applying its policies to most of its employees. The court’s opinion is eye-opening, both for the district judge’s robust defense of First Amendment rights and for the AO’s cowardly view of the judiciary’s place in American society.
Continue reading “The federal courts try to self-censor. A federal judge says no.”
A federal judge in the Eastern District of Virginia has ordered a patent infringement trial to proceed as scheduled on May 6. The entire trial will be conducted through the Zoom videoconferencing platform. It is expected to take about three weeks.
Plaintiff Centripetal Networks, Inc. alleges that Cisco Systems is infringing five of its patents for network technology. The case was filed in early 2018.
Cisco opposed the Zoom trial, arguing first that it would expose its proprietary technology to the public, and second that if the trial were to go forward via videoconference, it would be safer to hold it through Webex rather than Zoom. Cisco owns the Webex platform. The court rejected both arguments.
Earlier this month, a Texas state court held a one-day bench trial via Zoom. But this is a much more complex case, involving multiple claims, patents, and witnesses. If it proves successful, it may open the door to many more bench trials being conducted remotely. If the court and parties encounter major technical glitches, however, it may set back the movement for remote trials considerably.
The Administrative Office of the U.S. Courts has issued guidance regarding the opening of federal courthouses across the country. The guidelines envision a four-phase process, moving from the current scenario (most courthouses closed, hearings by phone or video, most employees working from home) through limited reopening with social distancing, and eventually a return to normal operations.
This is just a framework, not a schedule. The courts will not proceed along any opening path until data from the Center for Disease Control and other public health officials suggest that it is prudent to do so.
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”
A federal district court has delayed the trial in a challenge to Alabama’s method to selecting state appellate judges. The trial, originally scheduled to begin in August, was removed from the trial list in light of complications posed by social distancing and the coronavirus.
The Arkansas Democrat-Gazette reports:
The lawsuit alleges that the state’s method of electing appellate judges dilutes the voting strength of black voters, in violation of the federal Voting Rights Act of 1965. The seven Supreme Court justices are elected statewide to eight-year terms, while the 12 Appeals Court judges are elected from seven districts, five of which elect two members.
Attorneys for the state asked Moody in August to dismiss the case, arguing that “justice should not be administered on the basis of race, and Section 2 [of the Voting Rights Act] does not require this court to fundamentally reshape the Arkansas judiciary.”
Attorneys for the plaintiffs responded that the Act was enacted for “the broad remedial purpose of ridding the country of racial discrimination in voting,” including state judicial elections.
The delay was necessitated because social distancing practices had severely hampered the parties’ ability to conduct discovery. The judge did not foreclose certain discovery practices from continuing, however, and has ordered the parties to meet electronically and work out a time frame for handing over certain election data.
A Voting Rights Act challenge to state judicial voting districts was also raised in Louisiana back in 2014, resulting a trial verdict for the plaintiffs.
Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.
The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”
This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.
As they have in other times of public emergency, the United States Courts have devised a plan to address operations in the event of a more widespread coronavirus outbreak. Many of the precautions are sensible and consistent with approaches taken by other public and private sector organizations:
[Administrator James] Duff suggested that federal courts “at a minimum” coordinate with human resources about “social distancing practices,” such as “teleworking, staying home when sick, and separation of potentially ill staff from others within the workplace.”
The memo also urged courts to emphasize good respiratory etiquette and hand-washing practices and ensure routine, regular cleaning of all frequently touched surfaces in the workplace.
Courts should also be “implementing continuity procedures, issuance of applicable orders, and other measures as necessary to ensure the continuation of necessary court functions,” Duff’s memo states.