I have a guest post at the IAALS blog today, looking at some of the more interesting developments from last month’s state judicial elections — including the ongoing recount for the Chief Justice seat in North Carolina.
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.
Massachusetts Governor Charlie Baker has nominated Kimberly Budd to serve as the next Chief Justice of the state’s Supreme Judicial Court. Budd is currently as Associate Justice of the Court. She would fill the opening created by the untimely death of Chief Justice Ralph Gants last month.
Justice Budd is an outstanding choice. She is incredibly accomplished, well-respected, and has an excellent judicial demeanor. She will serve the Court, and the people of Massachusetts, well in her new position.
For the first time in seven months, Brooklyn courts will begin to hold jury trials inside courthouses. A number of safety measures have been implemented, including temperature checks, plexiglass screens, and upgraded air filtration systems.
During the last several months, a number of courts worldwide held jury trials outdoors or in large, socially distanced venues. As winter approaches (in the Northern Hemisphere, at least), trials will have no choice but to move indoors. Hopefully they prove to be safe and successful.
Sad, if likely inevitable, news: COVID-19 deaths are now directly impacting the judiciary. Yesterday, New York state officials reported that 168 state court employees had contracted the novel coronavirus, including 17 state judges. At least three of those judges — all in their mid-60s — have now died from the virus.
Aside from the personal loss and grief that comes from the sickness and death of colleagues and coworkers, the New York court system now finds itself with fewer human resources to keep up with its work. Already the system (like all court systems) has slowed its pace and transitioned at least in part to video and teleconferencing, but the attrition in the internal workforce with complicate matters even further. There are likely to be ripple effects throughout the criminal and civil justice systems as judges, court staff, attorneys, parties, and witnesses battle the disease personally and in relation to their families and friends.
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”
The coronavirus crisis and consequent social distancing has spurred many courts to move their hearings to videoconference. In light of the circumstances, some courts have relaxed certain formalities for online hearings, including the donning of judicial robes. This is a sensible practice, especially since judges already take on a slightly more relaxed feel when meeting with counsel in chambers, or otherwise outside the courtroom.
But some judges in Florida are finding that stay-at-home casualness is affecting lawyers’ professionalism a bit more starkly:
Broward circuit judge Dennis Bailey described some of what they’re seeing from the bench.
“It is remarkable how many ATTORNEYS appear inappropriately on camera,” Bailey wrote in a letter posted to the Weston Bar Associated website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.
“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”
It would never occur to me in a million years to stop dressing professionally for a court hearing. It’s one thing to abandon complete formality (like a robe or a suit) in unusual circumstances like these. But it’s something altogether different to choose not to wear a shirt. Good grief.
A federal district court has delayed the trial in a challenge to Alabama’s method to selecting state appellate judges. The trial, originally scheduled to begin in August, was removed from the trial list in light of complications posed by social distancing and the coronavirus.
The Arkansas Democrat-Gazette reports:
The lawsuit alleges that the state’s method of electing appellate judges dilutes the voting strength of black voters, in violation of the federal Voting Rights Act of 1965. The seven Supreme Court justices are elected statewide to eight-year terms, while the 12 Appeals Court judges are elected from seven districts, five of which elect two members.
Attorneys for the state asked Moody in August to dismiss the case, arguing that “justice should not be administered on the basis of race, and Section 2 [of the Voting Rights Act] does not require this court to fundamentally reshape the Arkansas judiciary.”
Attorneys for the plaintiffs responded that the Act was enacted for “the broad remedial purpose of ridding the country of racial discrimination in voting,” including state judicial elections.
The delay was necessitated because social distancing practices had severely hampered the parties’ ability to conduct discovery. The judge did not foreclose certain discovery practices from continuing, however, and has ordered the parties to meet electronically and work out a time frame for handing over certain election data.
Like almost every law professor in the country, I will be teaching from home for the next several weeks. It’s been a quick adjustment to become competent in online learning platforms, but we’ll make it work. Someone recently pointed out that Gen Xers like me are mentally prepared for something like this, having grown up in the waning years of the Cold War. My millennial students get props for taking all of this is stride as well. In the meantime, blogging may be a bit lighter than normal as I juggle work and family from home.
Last night, the governor of Massachusetts shut down all K-12 schools, and most restaurants and bars, until April 7. The state courts are following suit with their own precautions, trying to thread the needle between providing access to justice and protecting the larger needs of the community. The trial courts have announced a triage plan, effective this Wednesday, that will rely heavily on videoconferencing and staggered schedules. The Supreme Judicial Court (SJC) entered two additional orders, one postponing all new jury trials until at least mid-April, and the other limiting access to state court facilities for anyone who is likely exposed to or carrying COVID-19.
We are in the thick of social distancing now, and these measures all make sense. It will be interesting to see how much videoconferencing and online communication with the courts is retained once things return to normal.