Tag: interdependence

GAO questions judiciary’s system for prioritizing courthouse construction

Here is a very interesting example of the federal judiciary’s interdependence with the rest of the federal government. The responsibility for maintaining and operating the 420 federal courthouses across the country is shared by the judiciary, the U.S. Marshals Service, the General Services Administration, and the Federal Protective Service. And construction or maintenance of courthouses but also be authorized and funded by Congress, with oversight assistance from the General Accounting Office (GAO).

The upshot of this entanglement is that significant changes or improvements to federal courthouses must work their way through multiple layers of bureaucracy before anything gets done.

And so it is here. In 2008, after one significant wave of courthouse construction had been completed, the federal judiciary implemented an Asset Management Process (AMP) to prioritize courthouses most desperately in need of upgrades or new construction. Five years later, the GAO signed off on the process. The Administrative Office of the U.S. Courts (AO) then began the laborious task of assessing the condition of every federal courthouse in the country. By 2020, it had completed assessments of 385 courthouses, or 92 percent, with respect to security, space standards, functionality, the condition of judges’ workspaces, and the general condition of courtrooms and facilities. The judiciary assured the GAO that its assessments were accurate as of the time they were completed.

But the GAO was not satisfied. Asked to review the AO’s courthouse assessments, it concluded that several had become outdated and were therefore over- or under-prioritized for improvements. (For example, two courthouses were destroyed by recent hurricanes, yet their condition was not updated by the AO.) Yesterday the GAO issued a 62-page report outlining its concerns, as well as specific steps that the AO must take to improve the assessment process.

Some might look at the GAO as a necessary watchdog to make sure that the government does not spend money in the wrong places. Others might see this as wasteful bureaucracy run amok. The point here is simply that the business of operating courts is inextricably, and often invisibly to the public, tied to the demands, whims, and queries of many other actors. And that is interdependence in a nutshell.

State courts come under legislative assault

State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.

The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:

In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.

In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”

State courts confront budget shortfalls in wake of COVID

It should come as no surprise that state court systems, like state governments generally, are struggling to adapt to the financial pressures imposed by the coronavirus pandemic. For courts, COVID has meant the closing of courthouses, delays in trials and pre-trial hearings, rapid investment in technology infrastructure, mounting case blacklogs, and a surge in filings — particularly in those areas of the law most affected by economic dopwnturns (like contracts and consumer credit).

Now, as the calendar year turns over, state court administrators are preparing budgets for 2021, and the needs are staggering. And in many states, the extra money is simply not there. Indeed, as this Law360 story explains, a number of state courts expect that a relatively mild budget cut might be the best case scenario.

There are no easy answers. But we might learn from those state court systems that have developed (and are now able to draw upon) extensive rainy day funds, as well as using the current situation as an opportunity to reassess the most important priorities for the court systems and the communities they serve.

The federal courts try to self-censor. A federal judge says no.

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.”

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”

The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases

A guest post by Lawrence Friedman

In Republican National Committee v. Democratic National Committee, the U.S. Supreme Court ruled that absentee ballots in Wisconsin had to be postmarked by election day or earlier, which meant that many citizens would have to brave the polls and risk exposure to the novel coronavirus in order to vote. A New York Times story subsequently observed that the per curiam decision “was in keeping with a broader Republican approach that puts more weight on protecting against potential fraud — vanishingly rare in American elections — than the right to vote, with limited regard for the added burdens of the pandemic.”

This view aligns with that of the critics who note that the results in many of the Court’s recent voting rights decisions tend as a practical matter to inure to the benefit of the Republican Party. Indeed, a central question raised by the Court’s rulings in this area is whether the prevailing majority in these cases – Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – is motivated solely by partisanship. Writing in The Atlantic about the decision in the Wisconsin case, for example, Garret Epps asked whether the majority was “guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.”

There is an argument to be made that there is a principle at work in election cases—that the Court’s rulings reflect neither the majority’s embrace of dubious theories about voter fraud nor a bare desire to harm Democrats but, rather, a commitment to resolving disputes about who gets to vote on neutral grounds. Indeed, the Roberts court’s voting rights decisions can be seen as expressions of the majority’s abiding interest in avoiding – seemingly at all costs – any judicial involvement in the way state governments run elections. This interest follows from the premise that, as the majority reads it, the constitution is pre-political: there are no Republicans and Democrats, only candidates; and the rules under which elections are run are, other than when they are expressly discriminatory on the basis of race, the purview of legislators. Continue reading “The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases”

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

Seeking a more muscular judiciary

I have a new op-ed up at The Hill, urging the judiciary to be more outspoken about the rule of law and the role of courts in our society. A snippet:

The courts today could use a healthy dose of [John Jay’s] swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.

Please read the whole thing!

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.

For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.