Judicial transparency in the operation of the federal district courts

I am a big fan of becoming utterly transparent when it comes to operating the federal trial courts.  See, e.g., Richard G. Kopf, The Courts, the Internet, E-filing and Democracy, 56 University of New Brunswick Law Journal 40 (2007).  So are my fellow Nebraska judges. In this post, I will do two things. First, I will briefly describe a few of the important things we are doing in the District of Nebraska to make our court and judges more transparent. Second, I will solicit your suggestions for how we (and other federal trial courts) could do a better job of becoming and remaining transparent.  I hope you think this task is as important as I do.

We jumped into the Case Management and Electronic Case Filing (CM/ECF) system early on. We became the first federal trial court in the nation to put all our cases–both criminal and civil–on a computer system that is available to the public 24 hours a day from anywhere in the world.  That means that every document filed in any case is available for review or download for a small fee except those filings that a judge seals or restricts for privacy reasons and the like.

CM/ECF also now serves as a platform for digital audio recording of trials and hearings. Because I don’t use a court reporter, but rely upon digital audio exclusively, anyone, anywhere on a daily basis can access for a very minimal cost any trial or hearing that I conduct save for recordings restricted for security reasons. The digital file is normally available on the same day the trial and hearing is held.

Our judges have each agreed to put his or her sentencing statistics on our external web site. Those statistics are prepared by the Sentencing Commission from data complied by the Commission. We are the first and only court to release this data for each judge and by the name of each judge. Publishing this data in this form is a big deal. It is controversial because publication in this form allows the reader to focus in on specific judges, and there is a legitimate fear that such data could be misused. Nonetheless, every one of our judges, very courageously in my view, thought the public had the right to know what each judge’s sentencing statistics showed. Those statistics are on our external web site under the tab for Judges’ Information.

Speaking of our external web site, the lawyers and the public can find a lot of information on that site. For example, each judge has a daily calendar, generated by CM/ECF, that shows what the judge will be doing in the courtroom for each day of the week. As things change, the calendar is constantly updated by CM/ECF. For example, by clicking on my calendar you will find that I am conducting a supervised release violation hearing and a sentencing proceeding over the noon hour today. By taking the case number from the calendar, you can look up all the filings in the case using CM/ECF to see what is going on in that particular matter. At the end of the day, you can listen to the digital audio recording of the proceeding.

Additionally, under the Judges Information tab, some of our judges disclose their recusal (disqualification) lists. Some even disclose their yearly financial disclosure reports on our external web site.

Perhaps the most innovative and unusual method of achieving true transparency was pioneered by Judge Joe Bataillon, when he was Chief Judge. Our court governance structure (which is publicly available here) calls for meetings of all the judges and those meetings are held quarterly. At those meetings, the great bulk of the court’s internal operating issues are resolved. Judge Bataillon, with the agreement of the other judges, opened up those meetings. Now, the Federal Public Defender, the United States Attorney, a Criminal Justice Act panel attorney, and the attorney who is the Chair of our Federal Practice Committee, attend each meeting and have almost complete access to the information discussed at those meeting. It is worth noting that those meeting can become very heated as the judges grapple with difficult operational issues confronting the court. These lawyers participate in the discussion and, in turn, this serves to maintain a good working relationship between the bench and bar. I believe this innovation is entirely unique.

Finally, I would like to hear from you. Do you know of a district that is doing something significant in the way of transparency that you care to share? Do you have proposals that would advance the goal of transparency? Do you have gripes about the lack of transparency that you would like to highlight? I am very interested in your views. As I said when I began this post, judicial transparency is important. Indeed, it is too important to leave to the judges.

RGK

13 responses

  1. You are the national leader in all matters of court administration that we look up to – we are followers but were the first district to post judges conflicts list on our court web site. When I was Chief Judge my mantra was :”Let’s see what Nebrasks is doing on that and copy it!”

  2. I’ve long been concerned with the usage fees charged by PACER/ECF for public access. Ten cents per page may have been a reasonable fee to recoup costs a decade ago, but today it is far above what is reasonable.

    The Judicial Conference justifies the PACER fee schedule by citing to 28 U.S.C. § 1913, 1914, 1926, 1930, 1932, see http://www.pacer.gov/documents/epa_feesched.pdf, however when you actually read those sections, the legal authority for charging public access fees is seriously questionable. Section 1914 addresses fees in district courts and states, in its entirety:

    (a) The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350, except that on application for a writ of habeas corpus the filing fee shall be $5.
    (b) The clerk shall collect from the parties such additional fees only as are prescribed by the Judicial Conference of the United States.
    (c) Each district court by rule or standing order may require advance payment of fees.

    Clearly, nowhere in this section has Congress authorized the Judicial Conference or district courts to charge fees to non-parties.

    28 U.S.C. § 1913 similarly addresses fees in the courts of appeals and states:

    The fees and costs to be charged and collected in each court of appeals shall be prescribed from time to time by the Judicial Conference of the United States. Such fees and costs shall be reasonable and uniform in all the circuits.

    Arguably there is justification for public access fees here, however, the fee must be reasonable. When the Library of Congress can provide robust tools for bill tracking like THOMAS and Congress.gov for free, I’m hard-pressed to believe that the Judicial Conference is justified in charging 10 cents a page to access PDF documents or basic text searches of party information.

  3. Judge Kopf: One issue related to transparency in CM/ECF is the ability of non-attorneys to follow cases in real time and keep on top of them. This is especially true for members of the media/press, a category I fall within.

    In CM/ECF, the best way to follow a case is to subscribe to Notices of Electronic Filing, or NEFs. This feature is only available with a CM/ECF account, not a PACER account. The CM/ECF software supports an account category called a Non-Filing User that permits signing up for NEFs but not doing anything else.

    A number of districts will issue these accounts to credentialed members of the media. In my experience, this includes the DC District, the District of Massachusetts, the Central District of California, as well as the 1st, 2nd, 3rd, 4th, 7th, 9th, 10th, DC, and Federal Circuit circuit courts.

    Even more transparently, the Northern District of California permits any member of the public to register for a non-filing account (they call it “Special Mailing Group” access: http://www.cand.uscourts.gov/pages/960). This is a bigger step than the others, but I think it’s the best way to go given the choice.

    What’s the benefit? For a case of interest, the difference between checking PACER on a daily basis (or even on an hourly basis if something timely is expected) versus getting an email when there is activity is huge. And for cases where there is an interest but not a lot of activity (e.g. when a case is sitting for years…), even checking daily can become a frustrating exercise. Also, there are times when the press really appreciates being able to find out something the very minute it happens, to write and file stories in a timely and effective fashion. (It’s frustrating to learn past your deadline that something happened ten hours previously and you could have talked to sources and written a good article explaining the issue and its ramifications, but instead you have to dash off something quick and superficial without the ability to talk to experts and soforth; doing good journalism takes time.)

    As best as I can tell, the District of Nebraska doesn’t issue non-filer ECF accounts to members of the press or public. I don’t believe I’ve spoken to your Clerk’s office about it, because I haven’t personally followed a case in your district. But the districts that do permit this are the exception, and your District’s Local Rule 1.3(b) appears to suggest ECF accounts are limited to attorneys and pro se litigants who are not represented (1.3(b)(3)(B)), though there is some “wiggle room.” On the other hand, the Nebraska ECF Registration Form (PDF) is cheerfully ambiguous on this question.

    In the event that this request is redundant and your District already permits this practice, I do apologize for lobbying here! So far my record on this is one-in-two. I was able to convince my local district to add this and I think they are very happy with how it turned out. It has definitely been a serious boon to media trial coverage, and I think it’s also reduced the load on the local US Attorney’s Office press person fielding queries about cases of significant interest.

    Thanks.

  4. N,

    I agree with you on each of your points. However, in this world of sequestration you can imagine why I doubt these changes will be made in the short term. In any event, and not to duck responsibility, these issues are so far above my pay grade (and the power of the local courts) that I doubt my views count for much.

    All the best.

    RGK

  5. Unfortunately that IS the case, RGK. It does tend to disappoint me how the law system, in which we hold so dearly, is prone to systemic flaws like nondescript charges for “filing” when we know how much that really entails. Great article, by the way; I enjoy reading your posts, RGK.

  6. I’ll have to second N’s comment that the Pacer fees are beyond ridiculous. Fortunately your account won’t be billed for fees of less than $15 in a quarterly billing cycle and many people are using ReCap to move documents to a fee free archive. Still these are workarounds rather than evidence of transparency.

  7. Leslie,

    In fairness, there is a reasonable debate to be had between the notion that “if you use it you pay for it” and the contrary argument that “taxes support the general welfare, so don’t nickle and dime taxpayers with fees.” Because of sequestration, the federal courts are reasonably trying to squeeze every account to cut costs while maintaining income from unappropriated funds. If you did a sophisticated cost analysis on providing access to CM/ECF to members of the public, I am pretty sure that the fees would go down, but perhaps not as much as one might imagine. The internal infrastructure costs for maintaining the CM/ECF system at the local level are not insignificant and exceed the marginal costs of some of the services you are talking about. For example, in our little court we employ 8 IT people full-time. They are very skilled, and work quite hard.

    All the best.

    RGK

  8. John,

    I got a quick and responsive answer from our Clerk’s office (one of the best in the business, in my judgment). I trust you will be happy with the response. It states:

    We currently have the Special Mailing group in CM/ECF, however, we have not used it for the media. We have no objection to using this group for the media. I will contact the Central District of California to learn more about how they give access to members of the media using the Special Mailing group.

    I will be in touch after I visit with California.

    All the best.

    RGK

  9. Judge Kopf,
    What are your thoughts on caseload and time to disposition transparency? I found some basic statistics on your district web site, but I’m curious both if anything else is out there and if there are improvements you think could be made. The statistics include median times to disposition and to trial for the civil docket, but it seems that depends as much on the parties as it does on the court.

    My interest in the federal judiciary grew out of following the flood of 2nd amendment litigation following District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago,
    130 S. Ct. 3020 (2010). PALMER et al v. DISTRICT OF COLUMBIA et al (DC District 1:09-cv-01482) was filed in 2009, oral arguments on cross motions for summary judgement heard in 2009, reassigned in 2011, new arguments heard in 2012, and is still awaiting a decision. Several cases with very similar facts filed after McDonald in 2010 have already been decided at their respective courts of appeals. As an interested layman following the courts, this is inexplicable.

    I’m not sure what would have chance of getting the public to force Congress to improve the situation (confirming judges to fill vacancies, creating new seats, reducing federal criminal drug prosecutions, etc), but more information couldn’t hurt.

  10. Jeff.

    First, I apologize for my late response.

    Second, your comment about “time to disposition” statistics raises an issue near and dear to my heart. In my view, if you “can’t measure it, you can’t manage it.” Thus, when I was Chief Judge I drove everyone crazy pushing to drive down our “time to disposition” numbers. For those who are interested in such things, see Federal Court Management Statistics, click on District Courts on the left hand side. The most recent statistics are for March 2013.

    Understanding that there is also a lot of additional important data, here is an example of data you will find in these reports regarding prompt resolution of cases:

    Click on All Courts

    Filing to Disposition Criminal: 7.3 months
    Filing to Disposition Civil: 8.4 months
    Filing to trial (civil): 25.7 months
    % of civil cases over 3 years old: 10.3

    Click on District and scroll to District you want to compare with national numbers (example Nebraska)

    Filing to Disposition Criminal: 8.1 months
    Filing to Disposition Civil: 9.0 months
    Filing to trial (civil): 20.2 months
    % of civil cases over 3 years old: 3.7

    Third, it is extremely hard to drive time-to-disposition statistics down. We tried really, really, really hard to do so when I was Chief Judges. That said, here are two pretty easy things to do which help: (1) Every judge ought to commit to resolving motions for summary judgment in civil cases if at all possible within a defined time frame–say 60 days. That commitment should be expressed on the court’s web site. See here for Nebraska. Also see my post today. (2) For criminal cases, use modified/expedited presentence reports rather than full-blown reports for immigration cases thus reducing the time it otherwise requires to get an illegal alien who has pleaded guilty to sentencing.

    Finally, keep Congress out of it. We already have the Congressionally mandated semi-annual and public CJRA filings that report on submission periods for bench trials and motions, among other things. Frankly, any additional specific Congressional cure would likely cause more problems than it would fix. As for additional judges, in this time of fiscal austerity, I don’t see that as a likely possibility and, to be frank, I am not sure we really need more judges in most places.

    I hope this is responsive to your important comment. All the best.

    RGK

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