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”

Judge to appoint special master to assist in remedy phase of Louisiana judicial election case

Almost five years ago, a local branch of the NAACP in Terrebonne Parish, Louisiana, sued state officials in federal court, arguing that the state’s “at-large” system for electing judges systematically disenfranchised minority voters. After a trial in 2017, the federal district court agreed with the plaintiffs that the existing election scheme was unconstitutional. But the parties could not agree on the appropriate remedy, so the judge has asked both sides to suggest candidates for a special master, who will assist the judge in crafting an appropriate remedy.

“The parties didn’t agree on a remedy and the Legislature didn’t pass a remedy, so now it’s the court’s obligation to come up with a remedy,” [NAACP attorney Leah] Aden said on Saturday. “The court isn’t an expert in drawing maps. Judge Dick wants to do everything by the book, so she’s going to hire someone who’s familiar with drawing maps to aid her as an expert to evaluate the maps that we put up and potentially draw their own map. This person is basically a technical expert.”

A federal judge gave the state Legislature the first opportunity to remedy Terrebonne’s voting system, but the only proposed bill during the 2018 session died in committee.

This has been a fascinating case for observing how one sovereign’s judiciary (the federal courts) addresses fundamental issues pertaining to another (a state court system). It will be equally interesting to see how the final resolution plays out.

Disgraced former New Hampshire judge sues for pension and back pay; state seeks dismissal

Last June, former New Hampshire Superior Court judge Patricia Coffey sued the state, seeking an annual pension of nearly $90,000 and pension back pay of nearly $400,000, in addition to ongoing health insurance. Coffey resigned her position in 2008 after she was suspended for helping her husband create a false trust to hide assets. She was also found to have violated the state’s canons of judicial ethics by receiving a salary from a private company while on the state judicial payroll.

Coffey moved to California, but continued to make payments into the state pension system, and demanded full benefits once she was age-eligible in 2015. The state pension board denied her application.

Coffey is seeking a jury trial, but last week the state moved to dismiss the case altogether. That motion is pending before the federal court.

 

Chicago judge settles lawsuit over court layoffs

Late last year, the Cook County (Ill.) Board ordered the termination of nearly 180 county court employees, in light of rampant financial problems throughout the county. That action spurred Cook County Chief Judge Timothy Evans to file a lawsuit against the Board to enjoin the layoffs. Chief Judge Evans argued that even though the Board had power to set the courts’ budget, it did not have the authority to target individual employees for layoffs.

The Lake County Circuit Court agreed in December, issuing a temporary restraining order against the county to prevent the layoffs. Now, nearly eight months later, the parties have reached a settlement.

Both sides are claiming victory. The Board is saying that the settlement amount is “much lower than what was initially demanded” and that it will promote efficiencies in the court system. Chief Judge Evans points to the loss of only 22 jobs (as opposed the the initial 180), and his belief that “the lawsuit made clear that the county board had no authority to lay off court employees.”

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.