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Fair Courts Update: Assaults on State Courts Detailed in New Brennan Center Report

This Fair Courts Update highlights an updated analysis of legislative assaults on state courts, new research on technology in the courtroom, increased secrecy in Mississippi judicial elections, and more.

Published: March 15, 2022

Updated Bren­nan Center Analysis Finds Assaults on State Courts by Lawmakers

The Bren­nan Center released an updated analysis of state-level bills considered in 2021 that targeted the inde­pend­ence of state courts. In all, lawmakers in 35 states intro­duced at least 153 bills that would have limited courts’ power or made them more polit­ical. Of those bills, at least 19 were enacted across 14 states.

Twelve of the bills enacted this year will impact the abil­ity of courts to ensure fair elec­tions in nine states. In Geor­gia, for example, a new law will make it harder for judges to extend polling place hours, and new laws in Kansas, Kentucky, and Texas prohibit judges from alter­ing or suspend­ing state elec­tion laws. These laws, accord­ing to addi­tional Bren­nan Center analysis, are part of the larger assault on our demo­cracy.  

In 2021, legis­lat­ors also targeted courts’ abil­ity to strike down abor­tion restric­tions: 14 bills in 10 states would have forbid­den courts from enfor­cing Roe v. Wade. They also sought to limit courts’ abil­ity to enforce gun regu­la­tions: 35 bills in 22 states would have restric­ted judges from enfor­cing gun laws. Six such bills were enacted in six states.

Pew Study Exam­ines Impact of Tech­no­logy on Civil Legal System

On Decem­ber 1, the Pew Char­it­able Trusts published a study examin­ing the impact of new tech­no­lo­gies that were adop­ted by state civil court systems because of the pandemic.

The study, which looked at emer­gency high court orders in 50 states and Wash­ing­ton, D.C., found that Covid-19 dramat­ic­ally trans­formed the use of tech­no­logy in civil courts. Every state, includ­ing those with no history of using remote tech­no­logy, began hold­ing virtual hear­ings. More juris­dic­tions also allowed for e-filing of docu­ments, and courts across the coun­try saw an increase in appear­ance rates. 

These pandemic-driven changes, however, often advant­aged those with legal repres­ent­a­tion and exacer­bated exist­ing inequit­ies for those without, accord­ing to Pew. In addi­tion, of the almost 10,000 state and local orders reviewed by Pew, none specific­ally addressed tech­no­logy accom­mod­a­tions for people with disab­il­it­ies or limited English profi­ciency.

The study recom­mends civil courts do the follow­ing to “real­ize the full poten­tial of improve­ments in tech­no­logy-driven tools”: combine new tools with process improve­ments, test new tools with inten­ded users and incor­por­ate feed­back before adopt­ing them, and collect and analyze data to guide the use of and perform­ance of tools.

Missis­sippi Increases Secrecy Around Judi­cial Elec­tion Miscon­duct

In a Novem­ber 30 order, the Missis­sippi Supreme Court mandated a change in the size and role of the commit­tee respons­ible for over­see­ing judi­cial elec­tions. The most signi­fic­ant change in the order makes it optional for the commit­tee to inform the public about prob­lem­atic campaign prac­tices from judi­cial candid­ates or third parties. The new order also rescinds the commit­tee’s abil­ity to issue cease-and-desist orders to inde­pend­ent third-party groups who parti­cip­ate in campaign­ing for judi­cial elec­tions.

The order was passed in a 5–3 vote from the Supreme Court justices. In dissent, Justice Leslie King wrote, “Today, the Court’s major­ity lowers its expect­a­tions of the need for ethical conduct in judi­cial elec­tions by the candid­ates and by third parties, and it thumbs its collect­ive nose at the public’s right to expect and observe ethical judi­cial elec­tions.”

This order contin­ues a series of changes to judi­cial elec­tions in Missis­sippi that are likely to increase the politi­ciz­a­tion of these races. In 2019, the Missis­sippi Supreme Court ordered that although judi­cial candid­ates run in nonpar­tisan elec­tions, they should be able to soli­cit endorse­ments from partisan polit­ical organ­iz­a­tions.

Ohio Judge Invest­ig­ated for Jail­ing Defend­ants for Fail­ure to Pay Fines

The Ohio Supreme Court is invest­ig­at­ing Muni­cipal Court Judge Kim Hoover follow­ing a complaint that he has inap­pro­pri­ately incar­cer­ated people for fail­ing to pay court fines and fees, citing 12 instances begin­ning in 2015.

Under state guidelines, before impos­ing a jail sentence for a defend­ant’s fail­ure to pay a fine, judges are required to conduct an abil­ity-to-pay hear­ing, advise the defend­ant of their right to coun­sel, and find that the defend­ant is refus­ing to pay despite being able to pay. The complaint details several instances in which Hoover ignored these proto­cols.

In one instance, Hoover respon­ded to a defend­ant stat­ing that impris­on­ment would impact his employ­ment. “That’s the prob­lem with screw­in’ with me,” he said, and told another defend­ant, “If there is no money coming, get comfort­able [in jail].”

If the Ohio Supreme Court finds that Hoover has viol­ated the Code of Judi­cial Conduct, they could issue a public reprim­and, tempor­ar­ily suspend his law license, or perman­ently disbar him. Hoover has respon­ded that he does not believe he viol­ated ethical stand­ards in his courtroom.