New bill would increase disclosures regarding federal judicial travel

Senator Sheldon Whitehouse (D-RI) has introduced a new bill in the Senate, dubbed the Judicial Travel Accountability Act. (It has not yet received a number.) The bill would increase the financial disclosures put on federal judges regarding their travel. Bloomberg Law reports:

The Ethics in Government Act requires that judges’ disclosures include only the identity of the source and a brief description of reimbursements over $390. But judges don’t have to identify the dollar value of the reimbursement, and are exempted entirely from reporting any gifts in the form of “food, lodging, or entertainment received as personal hospitality,” Whitehouse said in a news release.

The Judicial Travel Accountability Act would require “judicial officers’” financial disclosure statements to include the dollar amount of transportation, lodging, and meal expense reimbursements and gifts, as well as a detailed description of any meetings and events attended.

The bill calls for disclosures to be filed within 15 days of a trip and to be made available on a public website. The Supreme Court doesn’t post its financial disclosures online and they are made available only once a year

In an ordinary political cycle, it would be easier to see this is as a truly bipartisan effort to promote public confidence in the judiciary, akin perhaps to the regularly introduced “Sunshine in the Courtroom” Acts that seek to bring cameras and other transparency mechanisms into the courthouse. But this is not an ordinary political cycle, and it is hard to see this bill as anything other than a political ploy. Start with Senator Whitehouse, whose public treatment of the Supreme Court has become increasingly unhinged as of late, and who chose to begin his remarks with a focus on the Supreme Court even though its Justices represent less than one-tenth of one percent of the entire federal judiciary. Then there is the list of co-sponsors: 12 Democrats (including two current presidential hopefuls) and only one Republican. It’s not difficult to see this bill as primarily an effort to turn the courts into a political football once again.

It is a dangerous thing when politicians drag the court system into their partisan squabbles, and it is in my view a significant reason why the public increasingly sees the courts as political. But while the federal courts cannot stop Congress from introducing pointed legislation, it can render such legislative chicanery moot by adopting its own reporting practices. Put differently, if the court system itself required judges to report more fully their travel junkets, rather than waiting for Congress to mandate it, courts would reap the benefits of increased public confidence and would not find themselves dragged into the political muck. More on this point in a future post.

(Even more) corruption of the judiciary in New York City

The New York Times periodically turns over the rock known as judicial selection in the Big Apple, and lo and behold, the nasty little critters underneath always seem to be thriving. This time it’s a story on corruption in the Bronx, where a Democratic party boss seems to have punished a local judge for refusing to hire his hand-picked crony as a “confidential assistant.”

What a colossal embarrassment. Why do New Yorkers tolerate this?

 

Supreme Judicial Court reverses course on suspension of Judge Joseph

A guest post by Lawrence Friedman

The tensions between state and federal authorities resulting from the Trump administration’s immigration policies are evident in debates over a proposed southern border wall, sanctuary cities and, in Massachusetts, the indictment of District Court Judge Shelley M. Joseph on obstruction of justice charges. An April 25, 2019 grand jury indictment alleges misconduct in her courtroom involving Immigration and Custom Enforcement officials and immigrants who had been held in state custody. While the federal criminal process moves forward in the wake of Joseph’s not-guilty plea, the federalism and state sovereignty issues have featured in a separate proceeding concerning her initial suspension without pay by the Massachusetts Supreme Judicial Court (“SJC”) in an order issued the same day as the grand jury indictment.

The SJC based its initial order “solely on the fact that [Judge Joseph] had been indicted for alleged misconduct in the performance of her judicial duties.” Joseph subsequently sought partial reconsideration, arguing that she should be suspended with pay, rather than without; and that she should be suspended only from her judicial duties. Following a nonevidentiary hearing, the SJC issued a revised order on August 13: a majority of the justices concluded that suspension with pay was appropriate in the unique circumstances of the case, and denied Joseph’s request to be assigned administrative duties.

The court was right to grant reconsideration and reverse course on the question whether Joseph should be paid during her suspension. It initially imposed suspension without pay absent any inquiry into the circumstances surrounding the federal indictment, relying for guidance on precedent as well as the Massachusetts Trial Court personnel policy and state statutes. Past suspensions notably had been imposed following findings indicating circumstances in which discipline was appropriate. As for the Trial Court policy, it provides that “[a]n employee who is indicted for misconduct in office … shall be suspended without pay until the conclusion of the criminal proceedings,” while Massachusetts General Laws Chapter 30, Section 59, and Chapter 268A, Section 25 authorize the suspension of state officers and employees during any period they are under indictment for misconduct. These rules, as the SJC observed in Massachusetts Bay Transportation Authority v. Massachusetts Bay Transportation Authority Retirement Board, serve “to remedy the untenable situation which arises when a person who has been indicted for misconduct in office continues to perform his [or her] public duties while awaiting trial.”

Notwithstanding the laudable aim of the rules, their automatic application to a judge may be problematic—particularly when the criminal allegations involve conduct in the courtroom, as opposed to actions outside the scope of the judicial function. Here, the SJC’s initial reliance on the mere fact of the indictment as a basis for suspending Joseph obscured a legitimate concern about prosecutorial intrusion into a trial judge’s authority to control her own courtroom. That a federal prosecutor sought the indictment, moreover, potentially raises federalism and separation of powers issues. In these circumstances, some kind of pre-suspension inquiry was warranted—an inquiry that the SJC ultimately made through the hearing on Joseph’s reconsideration motion, aided by the briefs of the parties and amici on the question of whether her suspension should be with or without pay.

No doubt, the SJC’s decision to reconsider the terms of Judge Joseph’s suspension will offend many Massachusetts citizens; as Justice Frank Graziano argued in his dissent, they will see the court as according a judge special treatment by restoring her pay. But, as the concurring justices noted, the decision to suspend Joseph without pay effectively denied her the ability to mount a defense to the criminal charge against her—a charge that may well implicate both judicial independence and the sovereign authority of the state judiciary itself. By ordering suspension with pay, the SJC has given Joseph the ability to mount a vigorous defense—in the knowledge that her trial may well test the extent to which state and federal law enforcement officials can act in spaces that traditionally have been seen as beyond their reach.

On the politics of judicial identity

Two recent stories illustrate the slippery role that stereotypes and identity politics play in state judicial elections. In Louisiana, judicial candidate Ron Johnson appeared in campaign ads wearing his twin brother’s judicial robe and calling himself “Judge Johnson.” (His brother is a sitting judge.) Johnson admitted his mistake and accepted responsibility for it, but the intent was clearly to send the message that he was an incumbent judge — and probably to take advantage of the professional goodwill his brother had already amassed on the bench.

Elsewhere, Caroline Cohen defeated three other candidates for a seat on the civil court bench in Brooklyn’s 6th judicial district last Tuesday. But one of her opponents, Tehilah Berman, charges that Cohen — nee Caroline Piela — took her husband’s identifiably Jewish last name shortly before the election in order to attract Orthodox Jewish voters in the district. Cohen apparently also ran ads in Jewish publications with the Biblical injunction “Justice, Justice shall you pursue.” Berman, who finished last in the race, claims that Cohen deliberately presented herself as a devout Jew in order to draw in votes.

We have seen sketchy campaign behavior before, including judicial candidates cynically manipulating their names for electoral gain. Last year, an even more egregious example was set when Chicago lawyer Phillip Spiwack named changed his name to Shannon O’Malley on the theory that a female, Irish name would make him a shoo-in with Cook County voters. Sadly, it worked. In another recent incident, a Nevada judge seeking reelection photoshopped Dwayne “The Rock” Johnson alongside her in a print ad, even though he had never endorsed her candidacy.

But seeing these two most recent incidents side by side was particularly striking, because they both undermine public confidence in the judiciary, but in opposite directions. Ron Johnson’s impersonation of a sitting judge preyed on the positive stereotypes that voters associate with the judicial robe. As I explain in part here, citizens associate the generic judge with a high level of impartiality, dignity, and inherent sense of fairness.  When a judicial candidate dons the robe and is later found to have acted unethically, positive associations with the robe and the judiciary go down.

Caroline Cohen’s name switch (occurring as it did months before the election, and after 13 years of marriage) was arguably even worse, as it sought to take advantage of the modern identity politics that have been sown so dismayingly at the national level. Cohen was banking on Orthodox Jewish voters choosing “one of their own” at the polls, having done no other homework on the candidates or their qualities and qualifications. She turns out to have been correct in that assumption (and indeed, similar behavior has been recorded in various parts of the country for decades), but at what cost? The entire episode moves public beliefs about the judiciary away from the ideals of neutrality, experience, and competence, and closer to the cynical wisdom of “she is one of ‘my’ people, and will put a finger on the scale for me if I ever need it.”

Modern politicians use identity politics divisively to create natural voter bases, and to later whip those bases into a froth with perceived slights against their group. The whole premise is degrading, dehumanizing, and de-democratizing, albeit an effective tool in our troubled times for the small-minded politician. Judges and judicial candidates, however, can never afford to peddle in the cramped and dark politics of identity. In doing so, they give away their greatest assets: the promise of equal justice for all.

Another major conflict of interest in Brooklyn’s judicial elections

The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:

Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.

Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.

Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.

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.

 

Texas judge accidentally resigns via Facebook

William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.

Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.

Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”