Massachusetts set to lift ban on cell phones in courthouses

Following the recommendation of its Access to Justice Commission, the Massachusetts Trial Court Department is taking immediate steps to lift the ban on cell phones on state courthouses.

The Commission’s report

cited hardships such as the inability of self-represented litigants to present photos or text messages as evidence to a judge, to consult their calendars, to reach child care providers, or to transact other “essential” business.

The recommendations of the working group include a full review of all courthouse bans to determine whether they are justified, and a pilot program to test the use of magnetically locked security pouches.

“Instead of using a strategy that relies on prohibiting the possession of cell phones as a condition of entry, each courthouse should employ a strategy, tailored to its security needs, that relies on regulating and controlling the use of cell phones within the building,” the authors of the report wrote.

This seems like a sensible step in the right direction. The made sense to ban phones in an earlier era, where the potential distraction might outweigh their value. But the near necessity of cell phones today–for child care and emergency communications, as memory and scheduling devices, and as carriers of critical personal information–merits a different response.

 

 

Massachusetts dallies with, and rejects, judicial term limits

My colleague Lawrence Freidman — a sometime guest contributor to this blog — praises the decision here:

The measure the Committee rejected proposed amending the state constitution to provide that judges be reviewed every seven years by the governor’s council. In an interview with The Lowell Sun, the author of the “Proposal for a Legislative Amendment to the Constitution Relative to the Term of Judicial Officers,” Representative Tom Golden, stated that the goal was judicial accountability, particularly for those judges “who consistently make poor legal decisions. 

There are two problems with this justification. First, it is far from clear that there ever could be universal agreement – or even agreement among the members of the Governor’s Council – as to the definition of a “poor legal decision.” It is a fact that, in every civil and criminal case, one party is bound to be disappointed by some judicial ruling, whether it concerned scheduling, procedural mattersor the admissibility of evidence—not to mention the end result. In other words, decrying a “poor legal decision” is in many instances another way of saying you simply do not agree with that particular decision. 

This is not to say that judges are infallible, or that no judicial decision can be deemed objectively wrong. But this leads to the second problem with the proposal: the notion that the only effective form of accountability is one that involves the democratic removal of constitutional officers from their posts.

Read the whole thing!

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.

 

Another misguided, politically motivated judicial impeachment effort

After the shameful, politically motivated recall of California judge Aaron Persky this summer, I hoped that it would be a while before we saw another attack on a good judge who happened to give a single light sentence. Consider those hopes dashed.

Some members of the Massachusetts General Assembly are calling for the impeachment (technically the implementation of a “bill of address”) of state superior court judge Timothy Feeley, who gave probation to a convicted heroin dealer earlier this year.

The rancor over Feeley’s rulings have focused on the case of Manuel Soto-Vittini, 33, of Peabody, who in May pleaded guilty to possession with intent to distribute heroin and cocaine. He was caught with 15 grams of heroin — 3 grams below the threshold for a more serious trafficking charge.

Feeley gave him two years of probation, instead of the one to three years in prison that prosecutors sought, calling it “a money crime.”

Feeley also weighed Soto-Vittini’s immigration status, saying in court that if the Dominican national had been a U.S. citizen, he would likely have sent him to state prison.

Lawmakers have already called for an internal judicial investigation of the matter, which is ongoing. In that sense, the call for impeachment is likely just political posturing. But it is still corrosive and pointless. One can be dismayed by the light sentence and still conclude that removal from office is entirely inappropriate.

 

On quiet judicial turnover

State judicial elections sometimes produce extreme cases of court turnover, either because interest groups target a group of judges for removal (something I explore in this article), or because an election frenzy sweeps out all (or virtually all) judges affiliated with a certain party (something I explore in more detail here). Such rapid turnover has significant consequences for the courts: the loss of institutional memory, the learning curve for an entire set of new judges, and sometimes radical changes in court culture can all result from an election sweep.

But judicial appointment systems are not immune from significant turnover as well, especially if they are combined with mandatory retirement ages. In a much quieter and more incremental way, an entire generation of state judges can be replaced by a  governor in the course of the few years. Massachusetts provides the most recent example: with yesterday’s confirmation of Scott Kafker to the state’s Supreme Judicial Court, Governor Charlie Baker has now appointed five of the court’s seven members.

Incremental change avoids many of the problems of party sweeps, and carries many direct benefits. New blood and new energy come into the system, and institutional memory is generally preserved. But the frequency of new state judicial appointments is often given little attention. For all the emphasis placed on a President’s ability to reshape the federal judiciary, it is worth remembering that mandatory retirement ages (which exist in all but three states) give governors or legislatures even more power to shape their respective state courts.