New Hampshire’s court system is expanding the reach of its electronic filing program, with the addition of civil cases and name-change cases this year. It’s a relatively small amount of new cases (3700), at least in comparison to larger jurisdictions, but it shows the growth and success of the overall New Hampshire program. Of particular interest to transparency enthusiasts is that kiosks in every courthouse allow the public to access the electronic filings of any non-sealed case.
The Capital Gazette reports on a loophole in Maryland’s electronic filing system, which allows attorneys to designate documents as “confidential” without filing a separate motion to seal with the court. Using the designation effective prevents interested parties, including the media, from accessing the court filings.
Court documents are presumed to be publicly available, and normally a party must move the court to seal specific documents and provide good reasons for the request. It appears that when Maryland moved to electronic filing in 2014, the system was set up to allow attorneys in cases with exposing sealing orders to designate certain documents as confidential. Lawyers are warned not to designate documents as confidential unless they are covered by a rule or statute. It appears, however, that many documents that should be public have been improperly designated.
The courts do not monitor electronic filing designations on a regular basis, which is probably sensible given the court system’s limited resources. But some greater allocation of resources — either in monitoring or in fixing the electronic loophole — may now be warranted.
Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.
As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.
Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.
Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.
These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.
Senator Sheldon Whitehouse (D-RI) has introduced a new bill in the Senate, dubbed the Judicial Travel Accountability Act. (It has not yet received a number.) The bill would increase the financial disclosures put on federal judges regarding their travel. Bloomberg Law reports:
The Ethics in Government Act requires that judges’ disclosures include only the identity of the source and a brief description of reimbursements over $390. But judges don’t have to identify the dollar value of the reimbursement, and are exempted entirely from reporting any gifts in the form of “food, lodging, or entertainment received as personal hospitality,” Whitehouse said in a news release.
The Judicial Travel Accountability Act would require “judicial officers’” financial disclosure statements to include the dollar amount of transportation, lodging, and meal expense reimbursements and gifts, as well as a detailed description of any meetings and events attended.
The bill calls for disclosures to be filed within 15 days of a trip and to be made available on a public website. The Supreme Court doesn’t post its financial disclosures online and they are made available only once a year
In an ordinary political cycle, it would be easier to see this is as a truly bipartisan effort to promote public confidence in the judiciary, akin perhaps to the regularly introduced “Sunshine in the Courtroom” Acts that seek to bring cameras and other transparency mechanisms into the courthouse. But this is not an ordinary political cycle, and it is hard to see this bill as anything other than a political ploy. Start with Senator Whitehouse, whose public treatment of the Supreme Court has become increasingly unhinged as of late, and who chose to begin his remarks with a focus on the Supreme Court even though its Justices represent less than one-tenth of one percent of the entire federal judiciary. Then there is the list of co-sponsors: 12 Democrats (including two current presidential hopefuls) and only one Republican. It’s not difficult to see this bill as primarily an effort to turn the courts into a political football once again.
It is a dangerous thing when politicians drag the court system into their partisan squabbles, and it is in my view a significant reason why the public increasingly sees the courts as political. But while the federal courts cannot stop Congress from introducing pointed legislation, it can render such legislative chicanery moot by adopting its own reporting practices. Put differently, if the court system itself required judges to report more fully their travel junkets, rather than waiting for Congress to mandate it, courts would reap the benefits of increased public confidence and would not find themselves dragged into the political muck. More on this point in a future post.
A guest post by Lawrence Friedman
In retrospect, the contretemps at summer’s end between the District Attorney’s office and a municipal court judge in Boston looks like a case study on the importance of effective accountability mechanisms in a judicial system. The dispute between prosecutors and Judge Richard Sinnott arose following the arrest of counter-demonstrators during the Boston Straight Pride Parade. Sinnott refused to accept an entry of nolle prosequi – the abandonment of a charge – in respect to certain defendants accused of disorderly conduct, on the ground that doing so would violate a Massachusetts statute that protects victims’ rights. The judge also ordered that a defense attorney arguing in favor of accepting the nolle prosequi be handcuffed and removed from the courtroom.
In addition to attracting a great deal of media attention, Judge Sinnott’s actions came in the wake of both a failed effort to amend the method of judicial selection in Massachusetts, and the release of the Boston Bar Association report, “Judicial Independence: Promoting Justice and Maintaining Democracy,” which defended the Commonwealth’s system of judicial selection through gubernatorial appointment with approval by the governor’s council. The responses to Sinnott’s denial of the Commonwealth’s entry of nolle prosequi and detention of a defendant’s lawyer illustrate ways in which real accountability is possible without abandoning judicial tenure. (Full disclosure: I was a member of the working group that drafted the Boston Bar Association report).
The Massachusetts legislature rejected a recent proposal to amend the constitution to provide that judges be reviewed every seven years, an initiative aimed at ensuring judicial accountability, according to one of the sponsors, for those judges who “make poor legal decisions.” The Boston Bar Association report, on the other hand, highlighted the existing mechanisms through which judges can be held accountable within the existing system. These mechanisms include the appellate process, an enforceable code of judicial conduct, and the promotion of transparency. Each of these mechanisms has worked in the case of Judge Sinnott.
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.