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.

Does requiring jurors to be vaccinated raise due process concerns?

As part of their public safety planning in the wake of the pandemic, a number of courts across the United States are beginning to require that jurors for in-person trials be vaccinated against COVID-19. That is a perfectly sensible policy. But it raises complex ancillary issues about the makeup of the jury pool once unvaccinated — but otherwise eligible — citizens are excluded from jury service.

An editorial in Massachusetts Lawyers Weekly articulates the problem:

Barring unvaccinated individuals could, in some parts of the state, make it more difficult to secure enough prospective jurors. It could also skew the jury pool, leading to more homogenous and less diverse juries. 

Generally speaking, vaccinated Americans are more likely to be older, female, white, college-educated and liberal in their political leanings, while unvaccinated Americans are more likely to be younger, conservative, male or people of color. 

In Massachusetts, statistics show that in cities such as Brockton, Lowell, Springfield and Worcester the percentages of Black and Hispanic individuals who are vaccinated are well under 50 percent, and the percentages of vaccinated individuals in their 20s are significantly lower than is the case for older people. 

As the editorial further notes, there is no constitutional bar to excluding unvaccinated individuals, since they are not being denied the chance to perform jury service on the basis of race, gender, religion, or another protected category. But it could skew the jury pool away from the reasonable cross-section of the community. 

There is also the perverse satisfaction that some might take in knowing that being unvaccinated gets them out of jury service. Perhaps such jurors should still be required to serve on virtual –or even outdoor — trials, if the demand for such proceedings continues.

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”

People are ducking jury duty amid COVID concerns

Bloomberg Law reports that while some state courts have reopened their courtrooms to live trials, most people called for jury duty are not showing up. In California Superior Court in San Diego, only 5% of those receiving a jury summons actually came to court on their appointed day.

It’s not that courthouses are inherently dangerous, or likely super-spreader locations. Indeed, courts nationwide have made every effort to insure juror safety, and — as importantly — to make jurors feel safe. Massachusetts, for example, has temporarily reduced the jury size from twelve to six, and has installed so much plexiglass in courthouses that, according to Chief Justice of the Trial Courts Paula Carey, some jurors felt safer in the courthouse than at the grocery store.

Still, this is going to be a slow climb back to normalcy. The length of the pandemic has conditioned our brains to think differently about being in enclosed areas with others, and even after we hit herd immunity, it will be a while before we can loosen up again. To keep the docket moving, courts should think about hybrid models, using both live and video components, even after the pandemic subsides.

A state judicial cascade in Massachusetts

On Monday, Massachusetts Governor Charlie Baker nominated Judge Delila Argaez Wendlandt to serve on the state’s Supreme Judicial Court. She would take the Associate Justice seat vacated by Justice Kimberly Budd, who is taking over as Chief Justice after the untimely death of former Chief Ralph Gants.

Will Baker nominate yet another sitting judge to fill Argaez Wendlandt’s seat on the Massachusetts Appellate Court? Triple appointment cascades at the state level are not unheard of, but also are not an everyday occurrence. Indeed, it is just as likely that Baker will nominate a government attorney or one in private practice. But a little more trial experience on the appellate bench is never a bad thing.

Kimberly Budd tapped as new Chief Justice of Massachusetts Supreme Judicial Court

Massachusetts Governor Charlie Baker has nominated Kimberly Budd to serve as the next Chief Justice of the state’s Supreme Judicial Court. Budd is currently as Associate Justice of the Court. She would fill the opening created by the untimely death of Chief Justice Ralph Gants last month.

Justice Budd is an outstanding choice. She is incredibly accomplished, well-respected, and has an excellent judicial demeanor. She will serve the Court, and the people of Massachusetts, well in her new position.

In Memoriam: Ralph Gants

Today brought the terrible news that Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, passed away days after suffering a heart attack. He was 65.

I first met Chief Justice Gants more than two decades ago, when he was an Assistant United States Attorney and I was his student in a white collar crime course at Harvard Law School. He was an active and encouraging teacher both in class and behind the scenes.

Justice Gants eventually moved to the judiciary, and made a clear mark as Chief Justice. His focus on attorney well-being and justice for all set the tone for the entire state judiciary. While I sometimes disagreed with his administrative decisions, I greatly admired his passion, commitment, and sincerity. He will be sorely missed.

A reverse judicial cascade!

I have written before about judicial nomination cascades: situations in which a sitting judge is appointed to another court, leaving another vacancy on the judge’s original court. Usually, cascades move in a single direction: trial judges are appointed to appellate courts, or intermediate appellate judges to courts of last resort.

But this week, Massachusetts initiated a rare reverse judicial cascade when Justice Edward McDonough, Jr., who is currently on the Massachusetts Appeals Court, was nominated for a seat on the Massachusetts Superior Court, which is the state’s general jurisdiction trial court. Judge McDonough previously served on the Superior Court from 2013 to 2017.

Judge McDonough’s long career as a trial lawyer suggests a high level of comfort with the trial bench, and it is inspiring to see judges who prefer the hurly-burly of the trial courts over the more sanitized settings of the appeals court. Assuming the appointment is successful, it will be interesting to see who Governor Charlie Baker nominates for the vacancy created on the Appeals Court.

 

Massachusetts courts embrace virtual hearings

Law360 has a good, general article on how the courts in Massachusetts are embracing virtual hearings in light of the coronavirus pandemic. This segment struck me as particularly interesting:

Like most jurisdictions, Massachusetts has embraced virtual hearings. It’s a development that [U.S. District] Judge [Dennis] Saylor, who took over as chief judge in January, is pleased to see.

“One of my goals was to try to drag the court into the 21st century in terms of video and telephone conferences, and a lot of my colleagues, both locally and nationwide, have been reluctant to do anything over the phone or by video,” he said. “One of the most expensive and problematic things about practicing law is getting in your car from Danvers or flying to Kansas City for a five-minute status conference.

“A silver lining in all of this is we have rapidly developed not only our video capabilities, but also people’s comfort with it, because no one has any choice.”

I have heard similar comments from state judges across the country, and it seems inevitable that certain types of minor hearings will be held via videoconference even after the pandemic ends. As Chief Judge Saylor notes, this is a very good thing.

The bigger question is how the courts will address the right of public access to court proceedings in the context of videoconferencing. There are legitimate concerns about whether the current technology is well-equipped to incorporate public access, but the larger issue will not–and should not–go away. The court systems that take the lead on integrating public access into videoconferencing will be particularly well positioned once the pandemic subsides.