Wednesday, August 31, 2011

Task Force on Preservation of Court Records

As I have previously written, the Supreme Court has created a Task Force on preservation of court records, which has been doing really fine work. The Task Force Report has been issued in anticipation of a September 26, 2011 hearing (2:00-5:00) before the Supreme Court, in the courtroom. The Task Force has also issued the following publications:

District and county clerks in particular are encouraged to review the report and other materials, and the task force chair, Bill Kroger, has asked me to thank them for their help with this project.  Clerks are invited to contact Bill with any comments or feedback.

Tuesday, August 30, 2011

Supreme Court of Texas

Last Friday the Court made news with a decision upholding the "pole tax" (a fee per patron on strip clubs that serve alcohol), a decision I was glad to see because one beneficiary of this revenue source is basic civil legal services, a chronically underfunded program that is a high priority for people in the business of seeing that justice is provided to the citizens of Texas.  That decision came down on a day when the Court released 19 opinions, a very busy summer's work. The Court should be proud, with the start of a new term they carried over just four argued cases from last term, which is the lowest number since at least 1989 (we do not have statistics for causes carried over prior to 1989).

Friday, August 26, 2011

Shared Solutions Summit

This title refers to the first of what we hope will be many Texas Judicial Council convenings of local leaders in justice administration, to share promising practices, plan collaborative local strategies, analyze data and identify opportunities, and chart a collaborative and economical course for Texas courts.  The event is Jan. 8-10, 2012, in Austin, and interested judges should contact me. We still have a few slots open for local teams.
Attendees will be motivated and equipped to launch and sustain local justice system improvements in the context of criminal, child protection, mental health, and self-represented civil cases. They will:
  • hear, observe and practice three themes, common to all such improvements - leadership, collaboration, and the use of data;
  • understand the basics of caseflow management as an organizing concept for all court case types, and the benefits and basics of online, automated case processing;
  • understand criminal justice examples of the use of data to identify problem areas in case processing and outcomes;
  • have the opportunity to understand and apply data analysis to criminal justice or another of the other three case types;
  • understand the current availability of a wide variety of cost-saving and performance-enhancing resources;
  • collaborate and share ideas within and among their local teams;
  • practice the use of a collaboration tool provided by OCA to sustain their effort and continue the linkages within and across counties.

The summit is open to twenty local teams of 4-6 participants, including a county judge or commissioner, district or county court at law judge, and district or county clerk; other participants, depending on the local focus, could include a district or county attorney, county CIO or administrator, court administrator or coordinator, chief probation officer or pretrial services officer, domestic relations or child welfare staff, CASA, local bar representative, or legal services provider.


Tuesday, August 16, 2011

Procedural Fairness

This phrase came to prominence in the court world with the work of Judges Kevin Burke and Steve Leben, as set out in their very worthwhile 2007 "white paper" for the American Judges Association. They use a framework from psychology professor Tom Tyler, who suggests that there are four basic expectations that encompass procedural fairness:

    • Voice: the ability to participate in the case by expressing their viewpoint;
    • Neutrality: consistently applied legal principles, unbiased decision makers, and a “transparency” about how decisions are made;
    • Respectful treatment: individuals are treated with dignity and their rights are obviously protected;
    • Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.
The Judicial Branch of California has recently published their own excellent report (written by the Center for Court Innovation) on this subject, with recommendations to make their  courts "understandable, accessible, respectful and trustworthy in the eyes of the people who use them."  I particularly like the report's emphasis on the myriad of opportunities to demonstrate and "signal that the justice system is capable of meting out fair and impartial justice," and the focus on key venues - traffic, small claims, family, and juvenile, and key users - self represented, limited English, and culturally diverse. I have long been a fan of the work of the California Administrative Office of the Courts, they have unbelievable resources compared to an office like ours in Texas, and very capable senior management; this report is another excellent resource they are sharing with the rest of us.

Courts are Different

Last week I had the pleasure of accompanying UT School of Law Dean Larry Sager to the Legislative Summit in San Antonio, the big annual conference by the National Conference of State Legislatures. (As readers know, I am very involved with the National Center for State Courts; well, back in "the day" when I was a legislative staffer [late 80s], I was very involved with NCSL, and last week I was very pleased to run into my NCSL mentor, Betty King, Secretary of the Texas Senate for 24 years.) 

Dean Sager spoke about the Supreme Court and the litigation over the Health Care Reform Act in the context of our federal constitutional system.  Very interesting, but what gratified me most was the background he provided to the audience of legislators, describing a couple of important distinguishing features of courts, in contrast to legislatures. He first pointed out a source of national pride, that most countries in the world have joined with the American concept of a written constitution, interpreted and applied by judges.  The powerful and distinguishing feature of courts in our common law system is that they explain the reasons for their decisions, in writing. This exercise entails looking at precedent - the way that similar cases were resolved in the past - and thinking about the precedent being set for the future. This process, and the mental exercise of reaching "reflective equilibrium," or reconciling the judge's general moral principles with their outcome based on specific factual circumstances, have the inherent effect of making judicial decisions more fair. The fact that in principle all litigants can appeal to a scheme of principles rather than to their own political strength has a democratizing effect.

Thursday, August 11, 2011

International Law

Highlighting the work of Chief Justice Jefferson's former law clerk Martha Lackritz, I am pleased to point out a very interesting article she prepared on The Role of International Law in Texas Jurisprudence, which is now posted on our website.  The topic is very timely. As Martha points out in the opening paragraph:
The past two decades have witnessed the emergence of a new debate among legal scholars, namely, the propriety of citing international and foreign law in United States courts. The opposing viewpoints have been labeled "nationalist" and "transnationalist," arising largely from a series of cases in the U.S. Supreme Court that invoked international standards to aid in interpretations of the Constitution (accompanied by several denunciatory dissents from Justice Scalia). Generally speaking, nationalists advocate a complete disavowal of the use of international law as even persuasive authority in this country’s courts, while transnationalists embrace international law as an unavoidable component of a global society. Nationalists fear that any citation to international law "undermines self-governance by giving incentives to interest groups, domestic and foreign to frame international and foreign law with a view toward influencing our domestic law." Transnationalists counter that, like early cases from the U.S. Supreme Court, an examination of other countries’ approaches to novel issues, and the resulting consequences, provides practical insight into our own interpretation of similar issues.
And for those who may be concerned about the Texas angle on this topic, the report may be reassuring:
In more recent years, Texas courts tend to address foreign and international law in only three principal situations: (1) when interpreting an international treaty at issue; (2) when responding to death penalty appeals that invoke international human rights law (here, only to a limited extent); and (3) when deciding the choice of forum and the appropriate law to apply. Representative cases in each category demonstrate the way that the courts are directed to invoke foreign and international law.

One reason I was interested is the concern we keeping hearing about Sharia law, such as the discussion in an Adam Liptak piece in the New York Times from 2008, and another very recent article in the Times, which has reported a lot on this topic. The first of these articles mentions a 2003 case in the 2nd (Fort Worth) Court of Appeals in Texas, in which the parties signed an arbitration agreement that said any dispute would be sent to arbitration at the Texas Islamic Court.  The COA analyzed the agreement under Texas arbitration law and said the agreement was enforceable.  In another case, from 2008, the 14th (Houston) COA looked at an Islamic marriage certificate that a husband and wife had signed.  The court analyzed it under Texas family law to determine if it was a valid prenuptual agreement and concluded it was not (because it was signed after the couple was legally married).  (My thanks to Heather Holmes, staff attorney to Justice Phil Johnson, for helping me find these cases.)  Not surprising results, and not really an avalanche of Sharia law in our courts.

Addendum: Information on Sharia law bans from Gavel to Gavel, National Center for State Courts:
List and chart of 22 states with 49 active bills in 2011

General overview of 2010 efforts

Wednesday, August 10, 2011


As we do after every session, my office has released a Judicial Council report identifying all of the recently passed bills that affect the courts.  It is not exciting reading but it is a really good resource if you are giving a presentation or just need to check on what happened.

Monday, August 1, 2011

Eyewitness Identification

I am in Atlanta with Chief Justice Jefferson, attending our annual meeting of the Conference of Chief Justices and the Conference of State Court Administrators. On Sunday night I walked to dinner with six colleagues, at a nearby restaurant here in Buckhead, a high-end retail area of town. Returning at about ten, chatting and walking, I noticed that we were passed on the sidewalk by a group of young men. I confess, I noticed they were African-American. The next thing I knew, one man rushed forward and grabbed the purse of one of my colleagues. She resisted mightily, shouted "no," and he pulled a pistol from his waistband. They pulled back and forth, about ten feet in front of me and most of the group. I was transfixed. I studied the gun, watching to see if he was going to point it at anyone, which he never did. I had a fleeting thought of dialing 911 on the phone in my pocket. I was alarmed and felt cowardly when one of my male colleagues rushed forward, and I thought he was going to get shot; he stopped short and nothing happened. I imagined having the gun turned on me. Somehow another female colleague suddenly sat down, I think the same one man tried to grab her purse too and pulled her off balance. But as quickly as it had started, it ended, the gun wielder gave up, said "step off," and began walking quickly away. His three cohorts were left behind, very close to where I was standing, sort of cowering beside a big retail sign; it was almost comical, one raised his hands and said "we don't have guns, we're not with him," as we gathered ourselves and began walking quickly back to the hotel, shaken but unhurt. The women who had been actually assaulted were later interviewed by the police, but I was not. Had I been, my information would have been quite useless, in spite of the singularity and vividness of those few moments. I could not recreate anything more than a generic description of any of the four young men, nor describe their clothes. I think I could've picked out the gun if there was such a thing as a gun lineup, but that is about it. I learned later that my colleagues and I did not even agree on the number of young men.