Connecticut ends newspaper publication of court notices

Pennoyer v. Neff noticeThe Hartford Courant reports that the Connecticut state courts will no longer require parties to publish court notices in local papers, effective January 2. Instead, notices will be published in a dedicated court website.

The practice of court notice by publication, sometimes called constructive notice, goes back centuries. It is designed to assure that all interested parties are informed of legal proceedings, especially when those parties cannot be found personally. Indeed, constructive notice played a central role in two of the most famous Supreme Court cases in history. In Mullane v. Central Hanover Bank & Trust Co. (1950), the Court signed off on constructive notice for parties who could not be reasonably ascertained at the time the suit was filed. In Pennoyer v. Neff (1877), the infamous bane of many a first-year law student, the Court based its personal jurisdiction analysis on the premise that constructive notice alone was not enough for the Oregon courts to exercise power over an out-of-state defendant.

Constructive notice is founded on the assumption that if notice is published somewhere, the interested parties are reasonably likely to learn about the proceeding. That itself is a bit of a fiction — the notice in Pennoyer v. Neff was published in a local religious publication called the Pacific Christian Reporter — hardly a paper of major import or geographical reach. But with the unquestioned dominance of the internet in our lives, and the ongoing struggles of the newspaper industry, it is probably more fair to post notices online that in the paper anyway. Newspaper publishers might be rightly angry about the development, but with 2020 on the horizon, it seems sensible for the Connecticut courts to embrace the twenty-first century.

Pictured: The newspaper notice in Pennoyer v. Neff

The costs of judicial interdependence, Part I

First in an occasional series on how organizational interdependence affects the judiciary

Two recent stories illustrate how the structural interdependence of courts within a constitutional system can drive judicial choices and behaviors.

We start in Sandusky, Ohio, where Common Pleas Judge John Dewey appointed his personal court administrator as a deputy court clerk, a position that would allow the administrator to handle all filings in a sensitive case involving allegations of sexual assault. Judge Dewey further decreed that the case filings should remain sealed, meaning that the newly appointed deputy court clerk would be the sole gatekeeper of the records.

The decision angered the local media, which asserted a First Amendment right of access to the filings. This was not an ordinary case of sexual assault: the defendant was the local district attorney, and the public had an interest in the proceedings. To complicate matters further, under Ohio law court records are supposed to be handled by an elected official. Judge Dewey’s administrator was not elected, and Judge Dewey apparently did not inform the elected court clerk about his preferred arrangement. This decision caused enormous confusion in the clerk’s office, both as to why he did not tell the elected clerk what he was doing, and as to whether Dewey’s decision to appoint a deputy court clerk was even legal.

It is also unclear why Judge Dewey had been given the case, given that the defendant was a regular–indeed, institutional–participant in the Sandusky County court system. Typically, when a local attorney or judge is involved as a party in litigation, the case is assigned to a judge unaffiliated with that jurisdiction to prevent a judicial conflict of interest. Somehow, though, Dewey held on to the case for months even though it created a visible conflict with other cases on his docket that had been brought by the prosecutor’s office.

Judge Dewey finally recused himself in late September, noting that “Sandusky County Judges have a conflict in this matter as it may involve a Sandusky County elected official.” A retired judge was appointed to take over the case, and in early December the defendant took a plea deal that will keep him out of jail but require him to resign from his elected position.

So what was going on here? It’s hard to know whether Judge Dewey’s series of odd choices–not recusing himself from the outset, holding on to the case for months, and quietly appointing his administrator to have sole control over the court papers–was driven by ignorance or some sort of malfeasance. But whatever Dewey’s motivation, the situation was made possible by the tight institutional connection between elected officials within the local Ohio court system. Prosecutors, court clerks, and judges are all elected on partisan platforms. Prosecutors often seek judicial office. And the internal community is likely very tight-knit. In many localities the judge, court staff, and criminal attorneys spend so much time together on the job that they come to think of themselves as a team of sorts–what Professor Herbert Jacob called a “courtroom work group” — even though each participant has very different roles and responsibilities. (If you are familiar with the chumminess of the characters on the old “Night Court” series, you get the idea.)

The most benign view of Judge Dewey’s actions, then, is that he sought to protect the court system and its established courtroom work groups from external interference by a curious media. He assigned a trusted assistant to manage and seal records so that a sensitive matter could be handled without undue political pressure. And he overlooked a legal requirement to share that information with the elected clerk. If so, Dewey made a series of mistakes, but in service to the larger institutional scheme. This suggests that there is, perhaps, too much interdependence between the local institutions, such that it is impossible to truly separate them even when doing so would be in the interest of justice.

Of course, it may well be that the benign view is not the correct one, and that Dewey was protecting a prosecutor friend by knowingly, and improperly, taking over his case, and then hiding the details from the media. That certainly seems to be the view of the local paper, which has called for a deeper investigation. But even in this scenario, the situation was exacerbated by the interrelationship of the courts, the prosecutor’s office, and the voting public.

The only clear corrective to this type of problem is vigilance. Those inside the court system need to recognize when their interdependencies can erode the judiciary’s legitimacy or moral authority, and take proactive steps to address them. Those outside the system need to use their powers–formal or informal–to identify potential abuses and call for change. That process is playing out now in Ohio, hopefully with positive results for the future.

More on the Supreme Court’s opacity

Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.

As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

The Importance of the Commitment to Judicial Accountability in Massachusetts

A guest post by Lawrence Friedman

In retrospect, the contretemps at summer’s end between the District Attorney’s office and a municipal court judge in Boston looks like a case study on the importance of effective accountability mechanisms in a judicial system. The dispute between prosecutors and Judge Richard Sinnott arose following the arrest of counter-demonstrators during the Boston Straight Pride Parade. Sinnott refused to accept an entry of nolle prosequi – the abandonment of a charge – in respect to certain defendants accused of disorderly conduct, on the ground that doing so would violate a Massachusetts statute that protects victims’ rights. The judge also ordered that a defense attorney arguing in favor of accepting the nolle prosequi be handcuffed and removed from the courtroom.

In addition to attracting a great deal of media attention, Judge Sinnott’s actions came in the wake of both a failed effort to amend the method of judicial selection in Massachusetts, and the release of the Boston Bar Association report, “Judicial Independence: Promoting Justice and Maintaining Democracy,” which defended the Commonwealth’s system of judicial selection through gubernatorial appointment with approval by the governor’s council. The responses to Sinnott’s denial of the Commonwealth’s entry of nolle prosequi and detention of a defendant’s lawyer illustrate ways in which real accountability is possible without abandoning judicial tenure. (Full disclosure: I was a member of the working group that drafted the Boston Bar Association report).

The Massachusetts legislature rejected a recent proposal to amend the constitution to provide that judges be reviewed every seven years, an initiative aimed at ensuring judicial accountability, according to one of the sponsors, for those judges who “make poor legal decisions.” The Boston Bar Association report, on the other hand, highlighted the existing mechanisms through which judges can be held accountable within the existing system. These mechanisms include the appellate process, an enforceable code of judicial conduct, and the promotion of transparency. Each of these mechanisms has worked in the case of Judge Sinnott.

Continue reading “The Importance of the Commitment to Judicial Accountability in Massachusetts”

The Illinois courts — we’re not dysfunctional!

There is something odd about the tone of this e-newsletter from Illinois Chief Justice Lloyd Karmeier. It is ostensibly announcing good news about a significant funding increase for the Illinois state court system in 2020. But Karmeier takes a weird stab at his colleagues on other, “dysfunctional” state courts, as well as lamenting the same “dysfunction” of the other branches of government in his own state. The article itself is a fairly benign piece praising the court system’s new “workable” budget, but it is written with a bit more color than one might expect from a state chief justice.

Karmeier’s election to the Illinois Supreme Court in 2004 was rife with political intrigue, and I do not follow the Illinois courts enough to speak to his professional mannerisms or various political pressures on the courts of that state. Readers can judge for themselves whether I am reading too much into this.

Tennessee courts launch new podcast

The Tennessee courts have launched a podcast entitled “Tennessee Court Talk,” which can be found at the courts’ main website, tncourts.gov.

“The TNcourts.gov website receives nearly six million hits each year, and those hits are very focused on legal research regarding how the courts work, court rules and procedures, and recent cases,” said Barbara Peck, communications director for the Tennessee Supreme Court and Administrative Office of the Courts.

“The need for information is there, and the podcast gives us another tool for meeting that need.”
This is a great idea, and I’ll be watching (and listening) to see how it develops.

Las Vegas Review-Journal revives attorney surveys of local judges

I have a guest post up at the IAALS Blog, which looks at a renewed effort to survey attorneys about judicial performance in Nevada. But unlike formal judicial performance evaluation (JPE) programs in other states, these surveys will be sponsored by the state’s largest newspaper, the Las Vegas Review-Journal. Another difference: the surveys are designed in part to identify poor-performing judges this fall so as to attract election challengers for 2020. I find this second aspect particularly uncomfortable and largely inconsistent with the voter education and self-improvement goals of typical JPE programs, but judge for yourself.

Minnesota broadcasts criminal sentencings … and the world doesn’t end

One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.

There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.

For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.