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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.