The federal judiciary has asked Congress for $36.6 million in supplemental funding to work through the coronavirus pandemic. The money would be used for cleaning courthouses, enhanced medical screening, information technology updates, and other IT infrastructure, among other things. The judiciary is also seeking new legislation to toll certain bankruptcy deadlines, add new temporary judgeships, and protect litigants and detainees from unnecessary coronavirus exposure.
The letter setting out the requests is here.
Hoping not to be bullied is not a worthy strategy for a co-equal branch of government.
A little over two years ago, the Administrative Office of the United States Courts (AO) issued a new policy which barred its employees and staff from engaging in partisan political activity, including posting yard signs or making ordinary campaign donations. I predicted at the time that the First Amendment implications would likely turn the new policy into a headache for the AO.
And so it did. In May of 2018, two AO employees filed a complaint in the U.S. District Court for the District of Columbia, alleging that the policy violated their First Amendment right to engage in core political speech. Last week, the court agreed, granting summary judgment to the plaintiffs and promising to enter a permanent injunction preventing the AO from applying its policies to most of its employees. The court’s opinion is eye-opening, both for the district judge’s robust defense of First Amendment rights and for the AO’s cowardly view of the judiciary’s place in American society.
Continue reading “The federal courts try to self-censor. A federal judge says no.”
I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.
Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.
The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.
Judges in Collin County, Texas are requesting additional resources–in the form of more courts and/or judges–after a surge of case filings in recent years. The eleven district judges in the county received more than 2100 new cases each in the past year, and that number is expected to increase.
As the Dallas Morning News summarizes:
Based on the current caseload, judges who want to keep up can spend no more than 53 minutes on each case and must dispose of nine cases a day.
But that’s not realistic. A hearing just for temporary orders in a divorce case takes about an hour, the judges said. Spending three days on a trial means having to find the equivalent of 26 other cases that require no time.
Late last year, the Cook County (Ill.) Board ordered the termination of nearly 180 county court employees, in light of rampant financial problems throughout the county. That action spurred Cook County Chief Judge Timothy Evans to file a lawsuit against the Board to enjoin the layoffs. Chief Judge Evans argued that even though the Board had power to set the courts’ budget, it did not have the authority to target individual employees for layoffs.
The Lake County Circuit Court agreed in December, issuing a temporary restraining order against the county to prevent the layoffs. Now, nearly eight months later, the parties have reached a settlement.
Both sides are claiming victory. The Board is saying that the settlement amount is “much lower than what was initially demanded” and that it will promote efficiencies in the court system. Chief Judge Evans points to the loss of only 22 jobs (as opposed the the initial 180), and his belief that “the lawsuit made clear that the county board had no authority to lay off court employees.”
The Irish Cabinet has approved the appointment of four judges–three to the Court of Appeal and one to the High Court–after a personal plea from the new President of the Court of Appeal George Birmingham.
The appointments were made relatively smoothly, after Transport Minister Shane Ross assented to the decision. Ross has blocked appointments in the past and has pushed for a new Judicial Appointments Commission on the grounds that the appointment process itself is broken.
The desperate need for new judges to keep up with the courts’ work seemed to be key to the decision:
[T]hree things have diminished Mr Ross’s sway – the pressing need for more judges in some courts, without which court business has been seriously affected; the lack of support for Mr Ross among his Independent Alliance colleagues, who have made it clear to him and to the rest of their Government colleagues that while they support Mr Ross, they are not prepared to make it an issue which threatens the future of the Government; and the advent as Minister of Charlie Flanagan, who is of a less patient nature than his predecessor Frances Fitzgerald.
Mr Flanagan has made it clear that if the courts need judges, he sees it as his responsibility to bring nominations to Government.
Miriam Naor, the former President of Israel’s Supreme Court, recently gave a rare public interview in which she defended her private meetings with Prime Minister Benjamin Netanyahu while serving on the Court. Naor maintained that she was appropriately discussing major legislation that would effect judicial branch operations. Critics argue that such meetings could compromise the integrity of a court that could eventually hear criminal charges against the Prime Minister.
This is a delicate thing. As I have noted regularly on this blog, most courts worldwide depend significantly on the other branches of their respective governments for resources and enabling legislation. It is both pragmatic and smart for the administrative head of a court system to share judicial concerns and perspectives with lawmakers. But closed-door meetings invite the perception of an improper, closer-then-arms-length relationship between the branches and their representatives.
For the second time in two days, a story on the severe shortage of court reporters in a state court system — this time in South Carolina. In influx of retirements, brought on by changes to the state retirement program, has led to a significant shortage of stenographers in courts across the state. The court system has launched an audio reporting program to compensate for the shortage, but as I discussed yesterday, audio recording is inferior in many ways to a live stenographer.
Effective Monday, the Court of Common Pleas of Mercer County, Pennsylvania will be down to two full-time judges. One of those judges, Robert G. Yeatts, recently assured the public that courts will stay open for business, using retired judges to “run the courts as much as possible.”
Fortunately, the state politicians responsible for filling the seats seem aware of the problem and plan to add new judges as soon as possible. But this story beings into sharp relief the courts’ dependence on others for their most basic resources.
The Wall Street Journal published a fascinating article yesterday on daily life at India’s largest courthouse, the Allahabad High Court. It tells a tale of extreme delay, extraordinary inefficiency, and basic injustice stemming from a lethal combination of judicial vacancies, outdated filing systems, and lax protocols for advancing cases to resolution. Among the facts presented in the article:
- Nearly 45% of judicial positions on the court are unfilled, due in large part to an ongoing battle between the judiciary and the other branches of government about the most appropriate methods for judicial selection.
- On average, it takes nearly four years to adjudicate a simple commercial dispute in India — twice as long as in Brazil and more than three times as long as in the United States.
- More than 86% of high court cases in India take 10-15 years to adjudicate. Fewer than 5% are resolved in less than five years.
- The Allahabad High Court receives nearly 1,000 new cases every day. Almost half are filed by the government. Judges on the court even have a name for newly filed cases that have not even been looked at yet — “backlog fresh.”
- It is so unpredictable which cases will be called on any given day that one lawyer profiled has associates spread out across all the courtrooms to track if — and when — any of his 34 open lawsuits on the court’s calendar might be taken up by a judge.
- Even though rural litigants often have to travel a whole day to appear in court, it is commonplace that their cases will not be called and another day will be wasted.
- The system encourages delay by allowing lawyers to file an “illness slip” to postpone a hearing, whether or not they are actually sick.
- Case records are badly misfiled–piled on floors and chairs, and intermingled by year. In the story, a worker searched eight hours for files for the next day’s cases, and was still missing 17 of 65 by day’s end.
This is a jaw-dropping account, the paragon of “justice delayed is justice denied.” What can we make of it?
Continue reading “A remarkable look inside India’s overburdened court system”