The costs of judicial interdependence, Part I

First in an occasional series on how organizational interdependence affects the judiciary

Two recent stories illustrate how the structural interdependence of courts within a constitutional system can drive judicial choices and behaviors.

We start in Sandusky, Ohio, where Common Pleas Judge John Dewey appointed his personal court administrator as a deputy court clerk, a position that would allow the administrator to handle all filings in a sensitive case involving allegations of sexual assault. Judge Dewey further decreed that the case filings should remain sealed, meaning that the newly appointed deputy court clerk would be the sole gatekeeper of the records.

The decision angered the local media, which asserted a First Amendment right of access to the filings. This was not an ordinary case of sexual assault: the defendant was the local district attorney, and the public had an interest in the proceedings. To complicate matters further, under Ohio law court records are supposed to be handled by an elected official. Judge Dewey’s administrator was not elected, and Judge Dewey apparently did not inform the elected court clerk about his preferred arrangement. This decision caused enormous confusion in the clerk’s office, both as to why he did not tell the elected clerk what he was doing, and as to whether Dewey’s decision to appoint a deputy court clerk was even legal.

It is also unclear why Judge Dewey had been given the case, given that the defendant was a regular–indeed, institutional–participant in the Sandusky County court system. Typically, when a local attorney or judge is involved as a party in litigation, the case is assigned to a judge unaffiliated with that jurisdiction to prevent a judicial conflict of interest. Somehow, though, Dewey held on to the case for months even though it created a visible conflict with other cases on his docket that had been brought by the prosecutor’s office.

Judge Dewey finally recused himself in late September, noting that “Sandusky County Judges have a conflict in this matter as it may involve a Sandusky County elected official.” A retired judge was appointed to take over the case, and in early December the defendant took a plea deal that will keep him out of jail but require him to resign from his elected position.

So what was going on here? It’s hard to know whether Judge Dewey’s series of odd choices–not recusing himself from the outset, holding on to the case for months, and quietly appointing his administrator to have sole control over the court papers–was driven by ignorance or some sort of malfeasance. But whatever Dewey’s motivation, the situation was made possible by the tight institutional connection between elected officials within the local Ohio court system. Prosecutors, court clerks, and judges are all elected on partisan platforms. Prosecutors often seek judicial office. And the internal community is likely very tight-knit. In many localities the judge, court staff, and criminal attorneys spend so much time together on the job that they come to think of themselves as a team of sorts–what Professor Herbert Jacob called a “courtroom work group” — even though each participant has very different roles and responsibilities. (If you are familiar with the chumminess of the characters on the old “Night Court” series, you get the idea.)

The most benign view of Judge Dewey’s actions, then, is that he sought to protect the court system and its established courtroom work groups from external interference by a curious media. He assigned a trusted assistant to manage and seal records so that a sensitive matter could be handled without undue political pressure. And he overlooked a legal requirement to share that information with the elected clerk. If so, Dewey made a series of mistakes, but in service to the larger institutional scheme. This suggests that there is, perhaps, too much interdependence between the local institutions, such that it is impossible to truly separate them even when doing so would be in the interest of justice.

Of course, it may well be that the benign view is not the correct one, and that Dewey was protecting a prosecutor friend by knowingly, and improperly, taking over his case, and then hiding the details from the media. That certainly seems to be the view of the local paper, which has called for a deeper investigation. But even in this scenario, the situation was exacerbated by the interrelationship of the courts, the prosecutor’s office, and the voting public.

The only clear corrective to this type of problem is vigilance. Those inside the court system need to recognize when their interdependencies can erode the judiciary’s legitimacy or moral authority, and take proactive steps to address them. Those outside the system need to use their powers–formal or informal–to identify potential abuses and call for change. That process is playing out now in Ohio, hopefully with positive results for the future.

Delaware to appeal holding that its judicial appointment process violates the Constitution

Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.

The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.

“Offended Observers” and Public Religious Displays: the Question of Standing

A guest post by Lawrence Friedman

That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.

Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.

Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.

But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”

The risk of upending settled doctrinal expectations

A guest post by Lawrence Friedman

Courts strive to avoid sudden, tectonic shifts in doctrine. The legitimacy of their decisionmaking depends upon two of the values that mark the rule of law: consistency and predictability. Absent adequate justification for a doctrinal shift and judicial decisionmaking starts to look like it is based more on caprice than reason.

The U.S. Supreme Court is not immune from the risks associated with such shifts—indeed, in two separate opinions in the past few weeks, Justice Clarence Thomas has argued that the Supreme Court consider radical changes in approach to long settled constitutional doctrines.

Concurring in the denial of certiorari in McKee v. Cosby, Thomas explained that, in an appropriate case, the court should reconsider the precedents underlying the First Amendment rule that public figures cannot pursue damages for defamation absent a showing of “‘actual malice’—that is, with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan and its progeny, Thomas argued, “were policy-driven decisions masquerading as constitutional law” that the Court “should not continue to reflexively apply.”

More recently, in Garza v. Idaho, Thomas (joined this time by Justice Neil Gorsuch) dissented from the majority’s ruling that, notwithstanding that a criminal defendant has waived the right to certain bases for appeal, prejudice should be presumed when his attorney does not pursue an appeal after being requested to do so. Thomas disagreed not only with the ruling but the basic premise of Sixth Amendment doctrine—that criminal defendants have a right to effective counsel. No modern precedent, he argued, including Gideon v. Wainwright, sought to square this rule “with the original meaning of the ‘right … to have the Assistance of Counsel.’” He suggested that the Sixth Amendment guarantees the accused only “the services of an attorney,” and assumptions to the contrary conflict “with the government’s legitimate interest in the finality of criminal judgments.”

Justice Thomas’s originalist approaches to defamation under the First Amendment and the right to counsel under the Sixth may be criticized on substantive grounds. As to the former, consider Eugene Volokh’s conclusion that “constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era” and Sullivan is “entirely consistent with original meaning.” As to the latter, consider the textualist argument that the very existence of a right to counsel privileges the individual’s interest over a governmental interest in finality, and that ineffective counsel undermines the integrity of this premise.

Even setting aside these substantive concerns, Thomas’s opinions preview what Chief Justice Roberts may look forward to should more justices be appointed who share not just Thomas’s interpretive approach, but his willingness to cast aside settled rules in favor of a return to the presumed original understanding of the constitution. It is not just a dispute, in other words, about meaning, but about the way in which the Supreme Court goes about the business of constitutional rulemaking.

A radical alteration in settled doctrine runs the risk that the Court’s decisionmaking is unmoored from the past, and that the justices cannot be counted on to create reasonable expectations for the future. It is not just about a loss of respect, but the dilution of a hard-earned legitimacy. One of the reasons the American people abide by the decisions of unelected judges about the meaning of our most sacred secular text is because, agree or disagree, there is in most areas of constitutional law a continuity that has allowed public and private institutions and individuals alike to rely upon expectations the Court itself has set about the boundaries of its reach—expectations that allow us to make our own plans and plot own courses.

To return to one of Roberts’s favorite analogies: no umpire who decided, one day, to honor the strike zone as it existed in baseball’s infancy would last long on the job. The players, the pitching, the equipment, the field—all are different today. Umpiring has accounted for these differences, as managers and players well know. They have expectations about the range of possible calls an umpire might make when the ball hurtles toward the catcher’s glove, and they trust that those expectations will hold true from game to game, and across the seasons. Chief Justice Roberts has intuited that Americans rightly expect the same of their Supreme Court—and that they likely would find ways to marginalize the Court if it were otherwise.

Arkansas judges issue conflicting orders on judicial election attack ads

I reported last week on a lawsuit brought by Arkansas Supreme Court Justice Courtney Goodson against the Judicial Crisis Network, a special interest group that has been running attack ads against her in the days leading up to the state’s nonpartisan supreme court election. Justice Goodson’s initial request for a temporary restraining order was granted by one trial court, with the understanding that a more complete hearing for a preliminary injunction would take place later in the week.

On Friday, that hearing did take place — in front of a different judge after the original judge had to recuse due to a conflict. The new judge, Pulaski County Circuit Judge Chris Piazza, found that Justice Goodson was likely to prevail on the merits of her claim, and granted the preliminary injunction, thereby blocking all television stations from running the attack ads. But in a strange twist, just hours later a second judge in the same circuit declined to grant the injunction in a parallel case. The dual outcomes mean that voters in some parts of Northwest Arkansas have been able to see the attack ads in the final days of the campaign, while others have been barred from doing so.

An excellent summary of the events, with far more detail than I care to set out here, can be found in this Arkansas Online story.

As I previously noted, this case raises a variety of important issues–about freedom of expression and its limits, the power of injunctions, and the wisdom of electing judges. We’ll continue to follow it through Election Day and beyond.

When elected judges rule on judicial elections

On Monday, Arkansas state trial judge Doug Martin issued a temporary restraining order preventing the conservative Judicial Crisis Network (JCN) from airing television ads critical of Arkansas Supreme Court Justice Courtney Goodson. The ads alleged, among other things, that Justice Goodson accepted monetary gifts from lawyers. Justice Goodson sued JCN, alleging that the ads were false and defamatory. The election is scheduled for next Tuesday, May 22; early voting has already commenced.

The TRO raises a number of evergreen issues in judicial elections, including the degree to which it constitutes an unconstitutional prior restraint on free speech, and whether the harm done to the judicial system by attack ads outweighs any benefits from selecting judges by the ballot. The additional twist here is that the propriety of conduct during judicial elections was itself determined by an elected judge — that is, someone who has a clear stake in the judicial selection process. Indeed, Judge Martin is no stranger to election controversies, having been censured for statements made about his opponent in the 2014 campaign. Of course, any Arkansas state judge would have some professional interest in the outcome of the case (since all face election), and I am not aware of any aspect of Justice Goodson’s complaint that would have made the case fit to be heard by a federal judge with a lifetime appointment.

As the name implies, a TRO is used to stop offending activity for only a short period, and typically expires within a few days. This TRO is no exception; the parties will return to court tomorrow for further hearings on whether to issue a preliminary injunction. Given the high profile of the case and the stakes for Judge Martin’s reputation, I expect that he will carefully and extensively probe the First Amendment issues with the parties before issuing another order.

 

Ninth Circuit upholds Montana’s nonpartisan judicial election scheme

In another example of judges ruling on the status of other judges, a panel of the Ninth Circuit Court of Appeals has upheld the propriety of Montana’s nonpartisan judicial elections. The nonpartisan scheme was challenged by a judicial candidate who argued that his inability to seek, accept, or use political endorsements in his campaign violated his First Amendment rights. Citing recent Supreme Court precedent, the panel upheld the state’s restrictions on political endorsements.

The full opinion is here.