Tag: public access

A roundup of interesting state court developments

Several interesting and important developments have taken place in state courts this past week. Among them:

  • The Chief Judge of the Hennepin County (Minnesota) District Court announced that the court has a backlog of 3,000 cases that must be resolved by 2023. Nearly 90 percent of those cases are criminal matters. Meanwhile, the COVID-19 pandemic has led to 89 percent of all court hearings being held remotely. 
  • New Hampshire has a new state court administrator. Dianne Martin was most recently the Chair of the state’s Public Utilities Commission, and has worked in and with the state colurt system for nearly twenty years.
  • And Idaho’s state court administrator has been named in a federal lawsuit filed by Courthouse News Service, alleging that the state’s practice of posting new case filings impermissibly delays public and media access to new case information. Courthouse News Service has filed similar lawsuits against other court administrators in the past, each time alleging that the court’s default position should be to provide immediate electronic access once a matter is filed.

A tentative settlement in the PACER fee lawsuit?

Reuters reports that a settlement is brewing in the class action lawsuit alleging that the federal judiciary overcharged users for PACER access. Terms of the deal were not disclosed, but after several years of litigation, including a trip to the Court of Appeals, it appears that the case may be coming to a private resolution in the next few months.

I shared thoughts on the PACER lawsuit, and the larger questions it poses for the court system, here.

Making sense of the new PACER bill

There is plenty of room for constructive compromise, but it requires everyone to acknowledge that “free” PACER is not actually free.

Last week, the House of Representatives passed the Open Courts Act of 2020, H.R. 8235, by a voice vote. The bill would radically reform access to federal court records by requiring (among other things) that the courts’ PACER system be modernized and its contents made free to the public. The bill drew praise from open courts advocates, and furious pushback from the Judicial Conference and the Administrative Office of the U.S. Courts (AO). Indeed, the Judicial Conference’s reaction was probably the most vigorous response I have seen from the courts in many years.

It is a rare piece of legislation these days that can simultaneously garner bipartisan support and solicit institutional panic from the judicial branch. So it’s worth examining closely. What we find is an opportunity for the court system to improve its transparency and its own performance, albeit not on the schedule or in the manner it would prefer. Continue reading “Making sense of the new PACER bill”

Some Georgia courts to broadcast live trials — sort of

I got excited when I saw the headline from a Columbus, Georgia television station: City of Columbus purchasing courtroom cameras to allow public to watch jury trials. After all, one major lesson from the coronavirus pandemic has been that the presence of cameras in the courtroom is far less disruptive than some believe. To be sure, one needs to be cautious about protecting privacy and due process, but those values can coexist comfortably with video technology.

But it turns out that the Georgia court cameras will only broadcast trials into the next room, not out to the public in general. This artificially limits the number of people who can view the trials, learn about the court system, and see it in action.

It’s good, of course, that the courts are at least opening trials again for public view — and cameras are the only safe way to open courtrooms to the general public for as long as the pandemic lasts. But this strikes me as a missed opportunity to bootstrap a transparency measure and turn it into a much larger positive for the courts and the public.

All 13 U.S. Courts of Appeal now feature live streaming

Many courts moved to some form of live streaming–either audio or video–since the start of the coronavirus pandemic. State courts have led the way, although federal courts have also made changes to improve public access and transparency. (Even the Supreme Court offered telephonic access to a few arguments.) Now, Bloomberg Law reports, all thirteen federal appellate courts offer live streaming.

The courts are still coy about whether they will maintain live streaming once the pandemic subsides. Some courts will certainly hold onto it — the Second and Ninth Circuits, for example, have already been live streaming for years. But hopefully other courts will also see the benefit — and associated lack of harm — with letting the public look in on the administration of justice.

Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Continue reading “Making sense of the recent Congressional testimony on courts and technology”

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.

COVID-19 and the courts: Where we are and where we might be going

A glance at the recent developments, and what to look for in the future.

It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.

Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”

What does a court hearing by videoconference look like? Here’s an example.

Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.

It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.

PACER “can never be free”

On Thursday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled “Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” Like much of what Congress does, the hearing featured a lot of pomp and circumstance with relatively little substance. But there was an interesting revelation from U.S. District Judge Audrey Fleissig, who (along with U.S. District Judge Richard Story) testified before the Subcommittee on public access to the work of the federal courts. Specifically, Judge Fleissig asserted that “Our case management and public access systems can never be free because they require over $100 million per year just to operate.”

The $100 million figure was new to me. That is a lot of money. Now I suspect that the external part of that system — the PACER interface for public access — constitutes only a small part of that overall cost, and that most of the cost goes to internal case management software that the courts would use in any event. So perhaps Judge Fleissig is being a bit selective with her evidence.

Still, I am sympathetic to the statement that PACER can never be free. Someone has to pay for it–the direct users, the court system, or Congress.

I explored the PACER funding dilemma at length here. And I do not expect that a show hearing before a House Subcommittee would really explore these issues in depth. But I do hope (and expect) that someone — both in the court system and in Congress — is thinking about the PACER funding problem with the seriousness it deserves.