It should come as no surprise that state court systems, like state governments generally, are struggling to adapt to the financial pressures imposed by the coronavirus pandemic. For courts, COVID has meant the closing of courthouses, delays in trials and pre-trial hearings, rapid investment in technology infrastructure, mounting case blacklogs, and a surge in filings — particularly in those areas of the law most affected by economic dopwnturns (like contracts and consumer credit).
Now, as the calendar year turns over, state court administrators are preparing budgets for 2021, and the needs are staggering. And in many states, the extra money is simply not there. Indeed, as this Law360 story explains, a number of state courts expect that a relatively mild budget cut might be the best case scenario.
There are no easy answers. But we might learn from those state court systems that have developed (and are now able to draw upon) extensive rainy day funds, as well as using the current situation as an opportunity to reassess the most important priorities for the court systems and the communities they serve.
Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:
In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)
In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)
In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.
And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.
This Law.com article has a nice summary of where state appellate courts stand on videoconferencing in the wake of the coronavirus pandemic. It focuses on courts in Georgia, but usefully points out where other states are in the process as well.
As the world nervously watches the spread of the coronavirus from its origins in China, court systems should be updating or preparing their own pandemic response plans. The National Center for State Courts has an excellent compilation of useful materials here.
In 2017, the Conference of Chief Justices and the Conference of State Court Administrators created the National Judicial Opioid Task Force to address the role of state courts in combating problems associated with opioid addiction. The Task Force has recently released its final report, which can be found here.
The four key findings of the Task Force are:
- There is a lack of access to and education about the use of quality, evidence-based treatment, including medication-based treatment for opioid use disorder (OUD)
- The most significant impact of the epidemic involves cases with children and families
- Congress and federal agencies must recognize state courts as essential partners in the response to the opioid crisis
- State courts must design programs and resources that will be effective responses to the next addiction crisis–not just opioids
I encourage you to read the whole thing for further context, and for recommendations on how state courts can respond to the crisis.
This week saw the formal announcement of two new efforts to modernize state court systems through technological improvements. The Pew Charitable Trusts announced an initiative, in partnership with the National Center for State Courts, American Bar Association, state court administrators, and private tech companies, to “modernize key aspects of the nation’s civil legal system and make it more accessible to the public.” Among the projects are developing more online tools for litigants and the public; using artificial intelligence to understand common language legal questions; and expanding online dispute resolution.
Separately, the Institute for the Advancement of the American Legal System (IAALS) released a new report entitled Eighteen Ways Courts Should Use Technology to Better Serve Their Customers. Among the report’s recommendations are:
- Ensure court information and services are accessible through smartphones and ensure up-to-date wayfinding.
- Allow court users to present photos, videos, and other information from their smartphones in court.
- Enable court users to appear by telephone or video conference.
- Facilitate easier scheduling of hearings using common digital calendar platforms.
- Allow online payment of fees and other costs.
- Create opportunities for users to access forms and other case-related information remotely and simplify the completion and filing of those forms, including electronic filing, and eliminate notarization requirements.
- Deliver automated court messaging about upcoming hearings or missed events and allow that messaging to help guide users through the process.
Substantively, both projects are directly responsive to an increasing number of self-represented litigants who desperately need help navigating the legal process. In the spirit of this blog, the projects also demonstrate how the courts can partner with organizations in their immediate environment to improve their outreach and service.
The Chief Justices of six states — Illinois, Indiana, Kentucky, Michigan, Ohio, and Tennessee — recently signed a charter to support a Regional Opioid Initiative already in place in those states. The courts’ commitment to the initiative recognizes that the epidemic crosses state borders and is most usefully addressed with a high level of cross-state cooperation. It also recognizes the key role of state judiciaries in combatting the epidemic.
Retired Alaska Supreme Court Justice Dana Fabe has been awarded the 2017 Sandra Day O’Connor Award for the Advancement of Civics Education. Justice Fabe worked on a series of projects to promote awareness of the courts in schools and among the general public. The award, given by the National Center for State Courts, recognizes Justice O’Connor’s work in promoting civics awareness since her retirement from the Supreme Court in 2006.
I had the honor of meeting Justice Fabe once, and she is certainly a worthy recipient of this award.
Many states have established “problem-solving courts” over the last two decades. These are specialized courts whose mission goes beyond the standard determination of guilt and punishment, and instead seeks to address the causes underlying problematic behaviors. Across the country, problem-solving courts have been established to deal with (among other things) drug offenses, mental health issues, sex offenses, truancy, and gun violence.
The State of Delaware has recently undertaken its first internal evaluation of its problem-solving courts, and is now looking to streamline and consolidate some of their work. In particular, the public report describing the evaluation recommends “a unified statewide treatment court.” Unifying the state’s problem-solving courts, the report suggested, would also allow the judiciary and court administrators to address treatment and training issues more efficiently.
As the state courts continues to expand their reach beyond a traditional, arms-length adjudicative role, these types of analyses will be all the more important. Delaware is said to be working with the National Center for State Courts and the National Association of Drug Court Professionals on this project, and hopefully the lessons gleaned from the project will work their way to other state court systems as well.