Tag: state courts

Minnesota courts continue innovations regarding self-represented litigants

State courts have increasingly tried to keep up with the growth of self-represented litigants. Concrete numbers are elusive, in part due to varying definitions of “self-represented.”* But studies undertaken by individual states clearly demonstrate the burgeoning self-represented population in probate, domestic violence, family law, and even run-of-the-mill civil cases. Federal courts, too, report that almost 86,000 civil cases were filed by a self-represented plaintiff in Fiscal Year 2016 (most of them prisoner petitions).

This interesting article discusses the efforts of the Minnesota state courts to address the growing numbers of self-represented parties:

It’s not uncommon for pro se litigants to arrive at court with paperwork that’s either the wrong form or filled out incorrectly. These kinds of mistakes can gum up the system, court officials say. Now judges can sometimes send people straight from the courtroom to a self-help center.

“It helps people feel like they’ve been heard,” District Judge Bethany Fountain Lindberg said. “It also eliminates unnecessary hearings.”

While the number of court cases overall in Minnesota has decreased since 2010, the percentage of litigants proceeding without a lawyer remains high. Excluding traffic and parking cases, nearly 80 percent of cases heard in Minnesota district courts last year involved a pro se litigant at some point, state data show.

The reason is often financial, court officials say. The rise of the do-it-yourself web culture may also be behind the trend.

“It used to be that everyone had attorneys,” said Mike Moriarity, 10th Judicial District administrator. “Now there’s a spirit that people want to try doing it themselves.

* The Court Statistics Project, maintained by the National Center for State Courts, tracks self-represented litigation through a common definition, but the numbers are not available for all states.

Stern on Judicial Candidates’ Right to Lie

Nat Stern (Florida State) has posted his new article, Judicial Candidates’ Right to Lie, on SSRN.  Here is the abstract:

A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves.

Leib and Brudney on legislative underwriting of judicial decisions

Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

This is a very interesting piece, and I encourage you to read the whole thing.  Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches.  Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.

I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute.  A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.

The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free.  Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds.  It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.

The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures.  Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way.  This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.

 

Intra-court feud brewing in Texas over online records access

For the past five years, Texas’s Office of Court Administration has worked to develop a statewide online database of court filings. The database, called re:SearchTX, covers all 254 counties in the state and is intended to provide a unified, centralized system for access to court filings, similar to the PACER system used by the federal courts. Texas Chief Justice Nathan Hecht has advocated for the new system, noting in particular its ability more quickly and inexpensively to self-represented litigants.

But a smooth launch of re:SearchTX has been stymied by the local courts themselves. And now a bill has been filed in the state House that would allow individual counties to opt out of the system, radically weakening its utility.

Continue reading “Intra-court feud brewing in Texas over online records access”

Indiana state courts now open to live tweeting

The Indiana Commission on Judicial Qualifications has issued an advisory opinion stating that live tweeting, microblogging, and other forms of “electronically relaying a written message” do not constitute broadcasting, and therefore do not fall under the general ban on broadcasting courtroom proceedings.  The decision paves the way for journalists of all types to share information on live testimony through Twitter.  Broadcasting video or audio of court proceedings is still prohibited, and trial judges still have discretion to restrict microblogging activity in any given proceeding or trial.

More on the background of the new opinion here.

IAALS unveils updated blueprint for judicial performance evaluation

The Institute for the Advancement of the American Legal System (IAALS) has published Transparent Courthouse Revisited: An Updated Blueprint for Judicial Performance Evaluation.  The document significantly updates a 2006 edition of the same publication.  It draws on best practices from around the country on evaluation commissions, the evaluation process, reaching recommendations, funding, and disseminating results.  It’s an important read for anyone interested in state courts and judicial performance evaluation (JPE).

More on the IAALS Quality Judges Initiative here.

Bill to restore partisan judicial elections passes North Carolina Senate

North Carolina used to select all of its state judges through partisan election.  Judicial candidates would have to win a party primary, and would appear on the ballot with a party designation.  In 1996, the state legislature eliminated the partisan designations for state superior court races, and in 2001 did the same for district courts.  Judges still face contested popular elections, but do not run under any party affiliation.

North Carolina’s move put it in good company.  While a handful of states still have partisan races, most states that still elect their judges long ago moved to a nonpartisan system.  Nonpartisan elections are certainly not foolproof, but deliberately omitting party affiliation from the ballot at least reinforces the message that voters should expect their judges to be impartial in performing their official duties.

This week, however, the North Carolina Senate chose to revert to partisan judicial elections.  The state House of Representatives passed a similar (but not identical) bill earlier in the session.  There is speculation that the Governor may veto the bill.  Stay tuned.

 

Legality of Oklahoma Supreme Court Appointment Goes Before … Oklahoma Supreme Court

When Justice Steven Taylor recently retired from the Oklahoma Supreme Court, Governor Mary Fallin tapped 35-year-old Patrick Wyrick to fill his seat.  Seats on the court are geographically distributed, and Wyrick was among three finalists from the state’s Second Judicial District whose names were submitted to the Governor for final consideration.  The final nominees were chosen by the state’s Judicial Nomination Commission (JNC).

But now Justice Wyrick’s appointment is being challenged by the Oklahoma Chapter of the ACLU, on the grounds that he does not actually reside in the Second Judicial District.  In preliminary arguments last week, Wyrick’s lawyer dismissed the challenge, asserting that the JNC’s selection of the three finalists is effectively unreviewable.  The ACLU countered that no state entity, including the JNC, has all-powerful status.

The decision is now before the state supreme court itself, leaving the eight remaining justices to decide the fate of a potential colleague.  The ACLU has further requested that any sitting justice who recommended Wyrick for a judicial position be recused from considering the case.

Certainly a fascinating example of court interdependence that bears watching.

 

 

 

Nebraska state courts to allow cameras in most proceedings and trials

Starting today.  This is a very interesting development for a few reasons.  First, it appears to apply to both criminal and civil cases, with exceptions made only for highly sensitive proceedings like juvenile and family cases, criminal pretrial motions, grand jury hearings, probate matters, and trade secret disputes.  Second, it is being permitted by state supreme court rule rather than legislation.  Third, the cameras will be operated by  external media outlets, who may edit the materials as they see fit (although they are cautioned to edit wisely).

I have long been an advocate of the educational and cognitive benefits of broadcasting courtroom proceedings, and was disappointed when the federal pilot project for recording selected civil proceedings was terminated in 2015.  Nebraska’s new policy is much more expansive than the federal pilot, and does pose a certain risk that courtroom events will be unfairly or improperly presented, that off-limits personnel (like jurors) will be shown, or that witnesses or lawyers will play to the cameras.  But I think the risk is minimal.  Continue reading “Nebraska state courts to allow cameras in most proceedings and trials”

Kentucky Senate passes bill to reallocate judgeships

The Kentucky Senate has passed a bill that would remove some general trial court judges from existing judicial districts and circuits, and add a roughly equal number of family court judges across the state.  The proposed reallocation of judicial resources would be the first in 124 years.  If the bill becomes law, it would go into effect in 2020.

The proposed reallocation is based on a weighted caseload study, a tool used by the federal courts (among others) for more than a decade to account for the complexity and expected resource consumption of particular case types.  Murder cases and complex commercial disputes tend to consumer more judicial resources than, for example, misdeameanors or garden-variety contract disputes.  Weighted caseloads try to account for these differences, and seek to allocate judges in a way that balances out the court system’s overall resources.  The National Center for State Courts assisted with the study.