Tag: judges as litigants

First Circuit rejects state judge’s criminal appeal as premature

The First Circuit Court of Appeals has rejected an appeal by Massachusetts state judge Shelley Joseph, claiming that it is premature. Readers will recall that in 2019, Judge Joseph was charged in federal court with obstruction of justice, after she allegedly helped an illegal immigrant avoid an ICE agent who was waiting in her courtroom to arrest him.

In federal district court, Joseph moved the dismiss the charges on the grounds of “absolute judicial immunity.” The district judge declined to dismiss, and Joseph appealed. But the First Circuit held that the appeal was premature because the trial court’s ruling did not operate as a final decision on the merits.

Interlocutory appeals — those taken up before the substance of a case is decided — are rarely granted, and there is no particular reason why this case should be an exception. As the First Circuit noted, even if Joseph can invoke judicial immunity as a defense, such immunity “does not provide a right not to be tried.” The case will return to the district court for further proceedings.

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually  dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal. 

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function. 

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

Cook County attorney steals a page from Trump’s playbook

Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:

The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.

“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.

In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

…

Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.

It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.

North Carolina Chief Justice election still undecided

More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).

But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.

After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.

Federal Circuit affirms PACER fee decision

After a two-and-a-half year wait, the Federal Circuit Court of Appeals has affirmed the decision of Judge Ellen Segal Huvelle in National Veterans Legal Services et al. v. United States. The plaintiffs in that case argued that the Judicial Conference of the United States and the Administrative Office of the U.S. Courts exceeded their statutory authorization by using PACER fees to fund internal court projects that were unrelated to the administration of the PACER system itself. (PACER is part of the federal courts’ electronic filing system, which allows the public to access most documents that are filed for a 10 cent/page fee.) The government argued that funding the additional projects did not exceed the court’s authority.

In March 2018, on cross-motions for summary judgment, Judge Huvelle split the difference, concluding as a matter of statutory interpretation that the courts had properly used PACER fees to fund certain projects–including the development of the electronci filing system itself–but had overstepped its bounds in using funds to provide electronic notice to jurors, assist with state court records in Mississippi, and other tangential projects. (I previosuly explored Judge Huvelle’s opinion, and the policies underlying the larger question of PACER fees, here.)

The Federal Circuit concluded that Judge Huvelle’s opinion “got it just right.” But it also added its own gloss on the relationship between the courts and the other branches of government, as seen through the lens of PACER revenue. Continue reading “Federal Circuit affirms PACER fee decision”

Federal court delays trial in Alabama judicial election case

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.

Texas court orders new judicial election after ballot error

A Texas state judge has ordered a new election for the Seventh Court of Appeals, after Republican primary candidates were left off the ballot in two counties last month. The successful challenge was brought by incumbent Larry Doss, who lost the primary.

Amarillo attorney Steven Denny, who was originally the winner based on the March 3 results, said he was disappointed with the results but understood the court’s reasoning. Denny also said he is concerned about how the rescheduled date could disenfranchise voters who cast ballots in the original elections.

“Although 1,200 voters in those two counties did not get a vote on this particular race, it is entirely likely with the dismal turnout in runoff elections compounded with the COVID-19 scare that we could have fewer than 10,000 voters in the new election, which would disenfranchise the other 80,000 that voted in the original election,” Denny said.

With Wisconsin proceeding with its state primary today after an unsuccessful legal challenge to postpone in light of the COVID-19 crisis, it will be interesting to see how states and localities thread the needle of public health and election participation.

The most pointless judicial election ever?

One candidate was declared ineligible. The votes were counted anyway. But to what end?

A remarkable story from Alabama. Last fall, prosecutor Linda Hall won the Democratic primary for a seat on the Jefferson County Circuit Court located in Birmingham. But before the general election, her primary opponent challenged her victory, alleging that Hall did not meet the state’s requirement that judicial candidates live in the circuit for at least 12 months before the election.

The court agreed, and held that Hall was ineligible to run in the general election. But the ballots had already been printed, so the primary challenger was left out in the cold. Moreover, the court declared that the votes in the general election must still be counted. Despite her ineligiblity, Hall handily defeated the Republican incumbent, Teresa Pulliam, by 16,000 votes in November.

Unsurprisingly, Hall’s electoral victory brought a new round of litigation, this time by two Jefferson County voters who challenged Hall’s fulfillment of the residency requirement. In a trial in late 2018, Hall testified that over the previous 12 months she had lived in four different apartments in the Birmingham area, as well as a number of extended stay hotels in St. Louis, Missouri. Hall explained that she had to keep moving apartments due to problems with mold, foul odors, and smoking neighbors. By early October — just weeks before the general election — she landed in her final apartment, which was actually located within Jefferson County.

After trial, Hall was again declared ineligible for the judgeship, and enjoined from taking the oath of office. This past week, the Alabama Supreme Court affirmed that decision without opinion.

So, to recap: a judicial candidate who was declared ineligible for office before the general election was nevertheless elected, and later barred from taking office. Three different courts had to get involved. And at the end of the day, the people of Birmigham County had an unfilled judicial seat. (In another twist, Hall’s opponent, Judge Pulliam, was quickly appointed to a different seat on a criminal court. So losing an election evidently isn’t much of a career killer.)

I suspect that there is much more behind this story, at least as to the motivations of those charged with putting judges on the Alabama bench. It isn’t much of a surprise that Judge Pulliam, a Republican, would be reappointed to another seat by the state’s Republican governor. Likewise, I suspect that Ms. Hall’s electoral victory was a product of party and identity politics. Hall is an African-American woman running as a Democrat in a city that is more than 70% African-American and which regularly elects Democrats to office. It is well-established that many (perhaps most) judicial voters have little knowledge of the candidates before them, and accordingly look for low-salience cues like party affiliation, race, gender, or last name to aid their decisions. If the system worked well, voters would have recognized that a vote for Hall was meaningless. But they voted for her in droves.

It may well be that given Alabama’s dark history of racial inequality, a pure appointment process for judges may not create sufficient public trust in the judiciary. Allowing communities to choose their own judges through elections may therefore be a necessary accommodation. But if we are to put judicial candidates before the voters, at least those candidates should be minimally qualified, and at least the voters should be minimally discerning.

 

 

On federal laws and state courthouses

By now,  many readers may be familiar with the growing tensions between states and the federal government over the Trump Administration policy of arresting illegal immigrants outside (and inside) state courthouses. The issue has been brewing for some time, and came to a head in Massachusetts this week when a state court judge and court officer were themselves arrested by federal authorities for helping Jose Medina-Perez, an illegal immigrant in their courtroom on drug charges, evade imminent arrest by an ICE agent by spiriting him out the back door of the courthouse.

Yesterday, in what they maintain is merely a coincidence of timing, two Massachusetts District Attorneys filed a lawsuit against the federal government, seeking to enjoin ICE from making any further arrests in state courthouses.

My former law school classmate Ted Folkman has an excellent rundown of the events and a sensible take on it at Letters Blogatory.  He writes:

My best understanding of the law is that the immigration agent had the right to seek to detain Medina-Perez in the courtroom and that the judge probably shouldn’t have put obstacles (or perhaps “obstructions”) in his way, though I do not want to offer an opinion about whether the judge’s conduct satisfies the elements of the criminal statutes without studying them. Again, we want to think back to another era and the contexts in which states sought to thwart federal law enforcement, and not make a legal rule based just on the sympathies of the moment. But that said, I also think it’s a terrible idea to send immigration agents to courthouses in the first place to arrest people, because it discourages people from attending court and is contrary to efforts to increase access to justice. And I find it hard to see why the federal government thinks the answer is to charge the judge criminally rather than for the Massachusetts court to exercise self-governance.

Two points here deserve elaboration. First, the federal policy is a terrible thing for the operation of state courts and their users. It represents a clear intrusion by a separate sovereign that threatens to disrupt state court proceedings. More importantly, the fear of arrest by ICE agents is sure to dissuade people from coming to court when it is necessary that they do so. The administration of justice will suffer as victims and key witnesses don’t show up for hearings and trials. Claims of domestic violence, child custody, landlord-tenant relations, personal injuries, and a variety of other issues either will not be brought at all, or will lead to default judgments when the defendants fail to appear. If the American tradition of due process means anything, it is that even those who are not citizens — even those who are not here legally — deserve a fair day in court.

At the same time, state courts and state judges are simply not free to ignore federal law and policy with which they disagree. American history is rife with examples of states unacceptably undermining federal law through the operation of their own court systems. Again, if due process means anything, it is that the law must be fairly applied in every venue, regardless of (as Ted puts it) “the sympathies of the moment.” And the charges against the Massachusetts judge, if proven, are quite damning: she allegedly closed her courtroom to the ICE agent, turned off the electronic recording system, and snuck a federal fugitive out the back door of the courthouse. Regardless of how you come down on the morality of her action, her alleged behavior was remarkably unjudicial.

Put differently — we have courts of law, not courts of justice. There are established procedures in place to stop harmful conduct. The lawsuit discussed above is one such procedure; taking the law into your own hands while wearing the robe is not. Whether or not one sympathizes with the intent of the state judge here, her alleged activities have surely damaged the integrity of the state judiciary.

 

The PACER class action and the problem of court funding

Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?

What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.

I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.

Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.

I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”