Why Must Congress Drag The Federal Judiciary Into the 21st Century?

The House Judiciary Committee unanimously advanced a bipartisan bill this week to improve access to federal courts by forcing the federal judiciary to make its court documents free to the public.

The Open Courts Act (H.R. 8235) if adopted, will make it much easier for individuals who cannot afford to hire an attorney to represent themselves in employment discrimination lawsuits. At least a quarter of federal lawsuits are brought by self-represented or pro se plaintiffs.

At present, the Administrative Office of U.S. Courts (AOC) operates a complex data base system called Public Access to Court Electronic Records (PACER) that charges viewers ten cents a page, up to $3 per document, to view court documents.

The system costs an estimated million dollars per year to operate but yields fees estimated at $146 million per year, resulting in a growing surplus.

House Judiciary Committee Chair Jerrold Nadler, D-NY, said at a hearing Tuesday that federal courts have “lagged behind modern standards of accessibility and openness.” He noted Congressional documents are free and easily accessible at congress.gov . By contrast, he said PACER is “difficult to understand,” “cumbersome” and carries “a landmine of fees.”

Continue reading “Why Must Congress Drag The Federal Judiciary Into the 21st Century?”

Age Discrim. Lawsuits: Like Shooting Fish in a Barrel

The underlying premise of our legal system is that two competent adversaries plead their case before a neutral arbiter.

A recent decision by the Supreme Judicial Court in Massachusetts, the state’s highest appellate court, shows just  how unrealistic this premise is today when victims of age discrimination who are poor or middle class cannot afford to hire an attorney. These unrepresented plaintiffs are routinely denied access to justice.

The case involves an age and gender discrimination complaint filed by Carolyn O. Faulk, who was fired by CVS Caremark Corp., and  Stanley D. Howard, who contributed to Faulk’s support after her dismissal. He essentially sought reimbursement from Caremark

The trial court denied Ms. Faulk’s request for the appointment of counsel and dismissed Howard’s claim on the grounds that he lacked “standing.”  Howard filed an appeal and both Faulk and Howard sought to temporarily halt the proceedings until the appeal was decided. Caremark filed a motion for sanctions against the plaintiffs.

Needless to say, Faulk and Howard lost at every turn. Their complaint was ultimately dismissed. Caremark’s motion for sanctions was allowed to proceed. The state’s high court affirmed the lower court, ruling that the issue of whether Faulk was entitled to court-appointed counsel was  “moot” because her case had been dismissed.

In any case, the appeals court said, Faulk failed to meet her “burden to allege and demonstrate the absence of inadequacy of other remedies.”  The court said Faulk could have sought interlocutory review of the denial of her motion for the appointment of counsel “pursuant to G.L. c. 231, § 118m first par. … ” Alternatively, the court said, she could have sought review of the denial of her motion in a direct appeal from the judgment of dismissal.

Of course, this presumes that Faulk understood her options without having the benefit of legal counsel to advise her. I daresay that few lay people could define the term “interlocutory appeal” let alone file one.  So Faulk’s case, at least arguably, was dismissed because Faulk didn’t have an attorney.  And her appeal of the trial court’s motion denying her an attorney was dismissed because …. she didn’t have an attorney.

This case, like millions of other, demonstrates the urgent need for modernization of our nation’s court system to insure there is some semblance of parity between unrepresented individuals and the team of expert counsel employed by major corporations like Caremark. This is no longer a system between two competent adversaries. Today,  age discrimination cases are the equivalent of shooting fish in a barrel for corporate defendants, who retain a team of staff attorneys and hire specialized counsel to overwhelm individual plaintiffs without counsel.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I refer to research showing that individuals who file employment discrimination complaints feel the court system is profoundly unfair. It’s hard to argue with this when courts allow the underlying issue – discrimination – to be completely obscured by complicated, obtuse procedural motions. It’s hard to know whether justice was done in Faulk’s case but clearly she was at a major disadvantage because she wasn’t represented by legal counsel who understood the court’s complex procedural rules.

The case is Carolyn O. Faulk and another v. Caremark Corp. and others, October 24, 2014.

Judges Who Blog

gavelI was surprised to find out this week from LawSites that I may be one of only three judges in the United States who “blog.”

 I am an appellate justice for a Native American tribe in Northern Nevada. I work for a sovereign nation that has its own court and code of laws but  is bound to the United States by a complex series of federal laws and treaties.  I formerly worked as a tribal court judge for another tribe.

 I don’t blog about being a judge, per se, though that experience undoubtedly informs my blog.

I write about employment discrimination, workplace bullying and abuse – from a worker’s perspective.  I began blogging after I took a job at a national domestic violence organization and became a target of a bullying supervisor.  I have since written a book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

 I find it appalling that the United States is one of the few industrialized countries in the world that does not protect workers from workplace bullying,  which is a widely recognized form of  violence that can severely impact a target’s health, lead to physical violence,  and costs society billions each year in lost work hours, higher medical costs, social services expenditures, etc.

 Back to blogging judges  …

 It seems a shame to me that more judges don’t blog. Their silence supports the status quo, which works largely to benefit corporate interests, the powerful and the rich (who contribute to political campaigns).   

 I would argue that silence does not serve the judiciary.  As Alexander Hamilton stated in The Federalist Papers,  the judiciary is the weakest branch of government because it controls neither sword nor purse.  The judiciary has utterly failed to make its case to American taxpayers for  appropriate funding.

 According to the American Bar Association,  most states have cut court funding by at least ten percent in recent years. Many states have stopped filling judicial vacancies and/or laid off judges. Many states have frozen or cut the salaries of judges or staff, despite ever increasing caseloads.  Many courts have reduced their opening hours or even close on some work days.

 It’s almost like the painful post-Internet downfall of the Post Office, but there is no satisfactory alternative to the court system for the vast majority of Americans.

 By its silence, the judiciary fails in particular to effectively champion the plight of people who need a just resolution of civil disputes. Civil courts are largely inaccessible to the poor and, increasingly, to the middle class. This has led to injustice on a massive scale. Meanwhile,  taxpayers become more disillusioned, which makes the judiciary even weaker.  

 I suspect that some people find the judiciary  to be arrogant and secretive – perhaps because its leaders on the U.S. Supreme Court refuse to allow their proceedings to be televised and it’s virtually impossible to work there unless you graduate from an Ivy League law school.  

Also, judges seem to think – admittedly with some justification – that they will never be promoted if they voice a public opinion on anything that is  more substantial than the weather.

 But the biggest disservice that is done by the silence of the judiciary involves the public perception of the work of a judge.  

 Many people don’t realize that being a judge is really hard work.  Imagine trying to make a good decision,  with the clock running,  rarely enough reliable information or too much conflicting information to be helpful, with emotions running high on both sides.  Even if the stakes seem low to you or me, they are always high to the litigants.

 A few years ago, a judge in Reno, NV, was shot while standing in his office through a plate glass window  by a sniper crouched in a parking lot across the street from the courthouse. The sniper was a litigant in a divorce case who had just murdered his wife. The judge was presiding over that case.   

 A good judge must be strong enough to make the right decision when it does not serve that judge’s interests. When it goes against the grain of powerful people who feel entitled to more justice than they deserve. A good judge must be strong enough to do the right thing when it could alienate a campaign donor or someone with power over the judge. It can be  like a politician from a “red” state  who has to vote on gun control every day.

Justice is the elusive goal that good judges strive to reach in their deliberations.  But justice is often a moving target. It can be difficult to find the bulls-eye. If you make a “mistake,” there is  an appeals court that will point it out.  Sometimes you make the right decision legally but you know in your heart that it isn’t right on a moral or human level.  You don’t forget those cases.

 There is so much about the judiciary that people don’t know because the judiciary has not told them. I think more judges blogging might help people understand that the course of justice is often imperfect, even when everyone is working in good faith toward a just resolution.

Knowing that so few judges blog makes me feel oddly vulnerable – like the soldier who stands up in a field while bullets whistle past.  Alas, it may be  time to  give up any expectation of promotion to the federal bench.