How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.

Florida courts to pilot civil jury trials by videoconference

Florida’s state court system is creating a pilot program to hold civil jury trials via remote technology. Up to five trial circuits across the state will participate.

This is a nod to ongoing concerns about reopening courthouses, but it also creates the possibility of some jury trials remaining fully online even after the pandemic subsides. The more experience that courts have with remote trials now, the more they will be able to assess the strengths and weaknesses of remote trials going forward. This pilot program will be worth watching carefully.

Judges face a new challenge: half-dressed lawyers on Zoom

The coronavirus crisis and consequent social distancing has spurred many courts to move their hearings to videoconference. In light of the circumstances, some courts have relaxed certain formalities for online hearings, including the donning of judicial robes. This is a sensible practice, especially since judges already take on a slightly more relaxed feel when meeting with counsel in chambers, or otherwise outside the courtroom.

But some judges in Florida are finding that stay-at-home casualness is affecting lawyers’ professionalism a bit more starkly:

Broward circuit judge Dennis Bailey described some of what they’re seeing from the bench.

“It is remarkable how many ATTORNEYS appear inappropriately on camera,” Bailey wrote in a letter posted to the Weston Bar Associated website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

It would never occur to me in a million years to stop dressing professionally for a court hearing. It’s one thing to abandon complete formality (like a robe or a suit) in unusual circumstances like these. But it’s something altogether different to choose not to wear a shirt. Good grief.

What does a court hearing by videoconference look like? Here’s an example.

Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.

It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.

The head of a Florida judicial nominating commission resigns. Who is to blame?

A strange story has emerged out of Florida’s 18th Judicial Circuit. The head of the Circuit Judicial Nominating Commission, attorney Alan Landman, resigned after a kerfuffle with Governor Ron DeSantis over the commission’s recommendations for an open judicial seat in Brevard County. Landman maintains that he had no choice but to resign after the Governor directly interfered with the independence of the nominating commission. The Governor’s representatives, by contrast, maintain that Landman was asked for his resignation after he inappropriately pushed his own preferred candidate.

Continue reading “The head of a Florida judicial nominating commission resigns. Who is to blame?”

Not all courthouses are the same

Some are glorious temples to the administration of justice. Others are originally built as school buildings, retrofitted to house courtrooms and judges’ chambers, and must combat mold, crumbling walls, and occasional gunfire. The Tampa Bay Times offers an insightful report on the challenges faced by Florida’s 2d District Court of Appeal in their substandard building, and the resource allocation issues underlying their request for new quarters.

An update on Florida’s judicial vacancy lawsuit

Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.

The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.

Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.

Florida’s fight over filling a judicial vacancy

A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.

Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.

That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.

Continue reading “Florida’s fight over filling a judicial vacancy”

Florida Supreme Court will broadcast all oral arguments on Facebook Live

The Florida Supreme Court, a longtime leader in televised access to court hearings, has announced that it will broadcast all of its oral arguments on Facebook Live starting in February.  The court has broadcast arguments through other providers since the late 1990s.  Broadcasts will continue to be archived.

More information from the court is available at its Facebook page.

Related: the very same court will soon decide whether judges must recuse themselves when they are Facebook friends with one of the lawyers appearing before them.

Florida judge faces removal for ethics violations

Palm Beach County judge Dana Santino, who last spring admitted to serious ethics violations during her election campaign last November, is now asking the Florida Supreme Court to reject a recommendation that she be removed from office.

Santino admitted making statements disparaging her opponent’s criminal defense work–statements which were found to impugn the integrity of her opponent and the entire legal profession. After an investigation, the state Judicial Qualifications Commissions recommended that Santino lose her judicial position.

The state supreme court has yet to make a decision, and could still schedule oral arguments on the Commission’s recommendation. Judge Santino remains on the county civil court bench pending resolution of the matter.