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Nestor Blokhin
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Empty Courts WORK

Shelly ordered the public outdoor pickleball courts there to be padlocked for two years, and for the town and the local pickleball club to each pay a $1,000 fine for violating the local noise ordinance.

Empty courts

Like the rest of the world, the judiciary has been walking a tightrope for the last six weeks, trying to keep courts open while protecting judges, staff, lawyers, litigants and the public from COVID-19 exposure.

An informal survey conducted by The National Judicial College found roughly 60% of judges said their courts were operating at 25% or less of normal capacity. The survey cited testimony from Sonya A. Morris, judge of the East Chicago City Court, who said her court is only allowing initial misdemeanor hearings, bond hearings and in-custody hearings.

In Marion County, most judges are working with only two staffers. No staffers have been furloughed, Presiding Superior Court Judge Heather Welch said, but the Indianapolis courts do not yet have the technological capacity to enable all staffers to work remotely.

Indiana Chief Justice Loretta Rush agreed, noting she has been able to continue weekly conferences with the other four justices despite her being in Lafayette. In both appellate courts, opinions have continued to come down during the pandemic.

But for those cases that do come before an appellate panel, both Rush and Bradford said their respective courts are preparing for remote oral arguments, a move the United States Supreme Court has likewise decided to make.

Welch, for example, said the Indianapolis courts are going to switch to laptops with docking stations instead of desktops. That way, if there were another reason why court offices would have to close, operations could continue seamlessly.

Similarly in federal courts, Magnus-Stinson said she could foresee a situation where bench trials could be conducted via videoconferencing. But, she added, that would depend on what kind of authority courts are given once the national emergency is over.

The CARE Court proposal seeks to compel people with severe mental health disorders to access services via referrals to this new court system. San Francisco, like some other counties, already has a civil psychiatric court that sends people through an evaluation process that can result in conservatorship. San Francisco also has eight alternative courts in the criminal division, often called diversion programs, which are guided by the principle that helping people, rather than locking them up, is better for the individual and the community.

The late Justice Antonin Scalia's spot has yet to be filled since his death on Feb. 13. With only eight justices on the bench, cases may not be heard or others will be sent back to the lower courts if there is a tie vote.

The abundance of federal courts with vacant seats is an enduring problem, as national news outlets continue to note. In an effort to conveniently track the number of vacancies and highlight troubled districts and courts, Judgepedia has developed the Federal Court Vacancy Warning System, a program which will track current vacancies, current pending appointments and major news concerning the appointment and retirement of federal judges.

The vacancy warning level for the U.S. Federal courts is currently set at Blue. There were five new vacancies and one new post created this past week, leaving the final tally at 82 vacancies or approximately 9.4% of the total Article III posts currently unfilled. The vacancy information for the various court levels is as follows:

In the days when defense lawyers spoutedScripture and wept real tears, Americans had the time of their lives atpublic trials. "People came for miles to hear those closing arguments,"recalls a nostalgic Georgia judge. "It was almost like a Shakespeareanfestival." Today, sensational murder trials still draw S.R.O.audiences. But at a time when everyone frets over rising crime, hardlyanyone attends the normal felony trial, to say nothing of misdemeanors.From where he sits in Texas, a state that once loved litigation evenmore than football, San Antonio's Criminal Court Judge Archie Brownflatly says: "The empty... To continue reading: responsiveAd(className: "subscribe-link",ads: [type: "desktop",size: "142x70",cm: position: "subscribebtn", type: "text",type: "tablet",size: "142x70",cm: position: "subscribebtn", type: "text",// Mobile 300type: "mobile",size: "142x70",config: zone: "219200",site: "28275",size_x: "142", size_y: "70",type: "-1"]); or Log-In

Contraception? Rather than deadlock over whether non-profit employers such as charities, hospitals and universities should get a religious exemption from the Affordable Care Act's requirement that health plans include free coverage of contraceptives, the justices unanimously sent the cases back to lower courts in hopes a compromise can be reached.

"The justices reached consensus when they could and, when they couldn't, they deferred issues to the future," University of Chicago Law School professor David Strauss said. "That's something the court sometimes does with conflicts in the lower courts, and the system can live with that for a while." The worst exception, he said, was leaving Obama's immigration policy in the hands of lower courts.

Under the rules of civil procedure governing New York courts, specifically CPLR 1601, a defendant appearing in an action may seek an apportionment of fault which includes responsible parties not appearing in the action (the proverbial "empty chair"). If an appearing defendant's fault is apportioned at 50% or less of the total fault (including the "empty chair"), that defendant's share of the total damages awarded is matched to its percentage of fault.

CPLR 1601 does not permit an allocation of fault to an "empty chair" defendant, however, where "the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state)"." If the appearing defendant is unable to assign a percentage of fault to the "empty chair," the appearing defendant may be exposed for the entire judgment even if, arguably, its actual culpability was very low.

Under the recognized doctrine of "sovereign immunity," however, the State of New York (including its departments and agencies) could never be named as a defendant in New York's civil courts; only the Court of Claims may hear a case against the State (unless the State agreed to be sued in a civil court). In Artibee v. Home Place Corp., 2017 N.Y. LEXIS 116 (Ct. App. Feb. 14, 2017), the Court of Appeals looked at whether CPLR 1601 permits apportionment of fault in a civil court action where the State is the "empty chair" defendant.

The Court of Appeals, after reviewing analogous case law and the legislative history of the statute, decided in a 4-2 decision (with one justice not participating) that apportionment to the State is not permitted under CPLR 1601. The majority took the position that "jurisdiction," in the statutory language quoted above, could mean either personal jurisdiction or subject matter jurisdiction, which includes the civil courts' lack of jurisdiction over any action against the State. The opinion noted that a defendant which gets stuck paying the entire judgment in the civil court action could bring an action against the State for contribution in the Court of Claims.

The dissenters argued that, since the doctrine of sovereign immunity always divests the civil courts of subject matter jurisdiction in actions against the State, the provision in CPLR 1601 that the claimant exercise "due diligence" to obtain jurisdiction "over such person" is meaningless unless jurisdiction in the context of the statute was intended to mean personal jurisdiction.

An intriguing discussion in footnote 5 of the opinion raised the question of CPLR 1601's application where the "empty chair" defendant is the claimant's employer, and an action for damages by the claimant employee against the employer would be barred by the "exclusive remedy" provisions of New York's workers' compensation law. The majority dismissed the concern by noting that an appearing third-party defendant would be permitted to implead the employer if the claimant employee suffered a "grave injury." Arguably, though, that begs the question of whether a third-party defendant would be allowed under CPLR 1601 to apportion fault to an "empty chair" employer where the claimant suffered less than a "grave injury." We will watch with great interest as future cases attempt to apply the Artibee holding in workers' compensation cases.

On Monday, Supreme Court Chief Justice Charles Canady issued an order suspending jury trials until July 2 and instructing courts across the state to continue holding other types of proceedings by telephone or video conference.

According to the Florida Supreme Court website, courts are now permitted to hold virtual hearings for non-jury trials, juvenile delinquency, termination of parental rights cases, alternate dispute resolution cases, pretrial conferences, non-evidentiary and evidentiary motion hearings, arraignments and pleas, non-criminal traffic infraction cases, and court staffings and wellness checks.

48 empty folders with classified banners: The filing did not reveal why the folders were empty or any other information on the folders, though many latched onto the mysterious nature of the empty folders as the most intriguing revelation Friday.

Empty voting ultimately calls for regulatory responses globally. As I elaborate elsewhere, regulators should be guided by two main principles: first, transparency: disclosure of significant empty positions is paramount to any market reaction; and secondly, regulators should introduce a right to disenfranchise risk-decoupled shareholders under certain circumstances (as opposed to a voting restriction ipso iure).


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