Court Transparency Bill Calls For Live Audio, Free PACER

March 3, 2020
In The News

Law360 (March 2, 2020, 9:35 PM EST) -- A new bill from House Judiciary Committee leaders aims to increase transparency in the federal courts by requiring live audio streaming of appellate arguments, free access to court documents in the PACER system, an ethics code for the high court and easier access to recusals and financial disclosures.

The 21st Century Courts Act is sponsored by Rep. Hank Johnson, D-Ga., who chairs the panel's subcommittee on the courts. He introduced the bill Friday with two Democratic co-sponsors, including Judiciary Committee Chairman Jerry Nadler of New York.

Johnson, a former criminal defense lawyer and state magistrate judge, told Law360 that he's proposing legislation because the courts are moving too slowly on transparency.

"The Constitution was set up to give the legislative branch a voice in the judicial arena," he said in an interview Monday. "I certainly have a healthy respect for the autonomous [nature] of our judiciary … yet I realize that in certain respects the courts have fallen behind in terms of notions of openness and accessibility."

The congressman predicted his plan could pass even in an election year, when legislative action usually slows.

"There is interest across the aisle," Johnson said. "A lot of work we did on this bill was in conjunction with members of the opposite party, but they chose not to [co-sponsor] the bill at the last minute, for whatever reason. But the fact that we had their input is what is most important, and I think eventually they will join on."

Federal circuit courts and the U.S. Supreme Court would have to provide live and archived audio recordings of all public proceedings within two years after the bill becomes law.

The Administrative Office of the U.S. Courts declined to comment on the proposal but pointed to congressional testimony in September from one of its leaders, Judge Audrey G. Fleissig of the Eastern District of Missouri, who emphasized that nearly all federal court proceedings are open to the public.

For Johnson, that's not enough.

People "often don't have time or the ability to actually come to the federal courthouse personally or travel all the way to Washington, D.C., to the Supreme Court," Johnson said. "It means that only insiders and wealthy individuals and actual litigants have the opportunity."

The measure also would give the judiciary up to three years to eliminate all user fees for the online Public Access to Court Electronic Records system, better known as PACER. The U.S. Department of Justice would continue to pay a lump sum, pegged to its 2018 charges and adjusted for inflation. Courts would be allowed to slightly raise some filing fees, especially in bankruptcy proceedings.

"My vow is to make sure the judiciary does not come out of modernizing the PACER system with a deficit," Johnson said.

During the transition period, the courts could charge extra fees for "super users" who rack up charges higher than $25,000 a quarter, a provision aimed at getting more revenue from subscription services such as Westlaw and LexisNexis, the parent company of Law360.

Last fall, Judge Fleissig touted the judiciary's decision to double the threshold below which PACER fees are waived from $15 to $30, a change estimated to make the system free for more than three-quarters of all active users. Judicial opinions and the Supreme Court's entire docket never carry a charge. She also said unlimited downloads "could dangerously strain the system's capacity and performance."

Transparency advocates like Gabe Roth of Fix the Court see fee exceptions as half-measures.

"That's just nibbling at the edges," Roth told Law360 on Monday. "There shouldn't be any cost. ... Public documents belong to the public."

Roth praised Johnson's bill for incorporating ideas from ideologically diverse sources, with input from senators ranging from the conservative Ted Cruz, R-Texas, to the liberal Mazie Hirono, D-Hawaii.

"We wanted to reflect the consensus thinking as much as possible in a single bill," Roth said.

That's why the 21st Century Courts Act would require audio but not video streaming, a longtime goal of some transparency advocates and the focus of many bills, the most recent a bipartisan House proposal this year that questioned why Americans could watch Chief Justice John Roberts preside over a Senate impeachment trial but not a Supreme Court hearing.

Video would require more infrastructure investment, and that medium draws more opposition from skeptics. Ed Whelan, the conservative president of the Ethics and Public Policy Center, argued in 2011 that cameras at the high court would "reward political grandstanding by the justices (as well as by counsel and protesters in the courtroom)." Judges have expressed concerns about publicity and witness privacy at the trial level; discussions have largely focused on the appellate courts.

Judge Fleissig told lawmakers that four circuit courts currently permit video recording and live audio streaming, while the other circuits have audio recordings posted for free.

In addition to audio streaming and free PACER access, the 21st Century Courts Act also has several ethics provisions that would require an ethics code for the Supreme Court, online posting of judges' financial disclosure forms and timely online posting of most recusal decisions.

Federal judges at all levels would have to at least select a category of explanation when they recuse themselves, such as a financial interest in a company involved in the legislation, a family member representing a party or a role in the case prior to taking the bench.

Litigants, reporters and other people looking to check on a judge's possible financial interest in a case currently must submit a request to the Administrative Office; Roth said it can take months to get the requested forms, "neutering their accountability function."

Lastly, the high court would have to adopt an ethics code for the first time. The regulations of the Judicial Conference of the United States do not constrain the Supreme Court, although Justice Roberts in 2012 told lawmakers that justices have agreed since 1991 to follow that group's guidance on gifts and outside income.

--Additional reporting by Carolina Bolado. Editing by Orlando Lorenzo.

Law360 is owned by LexisNexis Legal & Professional, a RELX Group company.

 

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