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Oct 3, 2009

For Once, Illinois Federal Judge Lets 'Em Roll: And Gets Bulldozed

(cross posted at the Citizen Media Law Project

UPDATE:  Federal District Judge Joe Billy McDade has issued a letter apologizing for allowing cameras into his courtroom to cover a Sept. 15 hearing on a consent decree settling a school discrimination case.
 
The apology came after Judge Frank Easterbrook, chief judge of the 7th Circuit, issued an opinion chiding Judge McDade for allowing cameras into a consent decree hearing in a school discrimination case, saying that it violated a 1996 resolution of the 7th Circuit Judicial Council adopting the national Judicial Council's ban on cameras, discussed below.

The video,available on the local newspaper's web site, is of a hearing on the final consent decree in a federal lawsuit that alleged racial discrimination in the public schools of Champaign, Illinois.


As I've written before, while most states allow some form of still and video camera coverage of court proceedings, the federal courts have generally been hostile to such coverage.  A federal court rule bars camera coverage of criminal cases, see Fed. R. Crim Pro. 53, and, at the urging of the Federal Judicial Conference, most of the United States Circuit Courts of Appeals have passed rules that all but prohibit district courts under their supervision from allowing cameras to cover proceedings in civil cases. Earlier this year, this policy led the First Circuit to reverse a lower court's decision to allow webcasting of the trial of a Boston University student sued for music downloading.

The exceptions are the Second and Ninth Circuits, where some district courts have allowed such coverage. 
But the Champaign public schools case was heard in a federal district court in the Central District of Illinois, within the Seventh Circuit.  This Circuit prohibits photography and broadcasting from the Court of Appeals facility, see Cir. Rule 55, and in 1985 upheld the constitutionality of Fed. R. Crim. Pro. 53, the federal rule prohibiting camera coverage of criminal cases.  See U.S. v. Kerley, 753 F.2d 617 (7th Cir. 1985).
And on Oct. 15, 1996, the 7th Circuit's judicial council adopted a resolution barring cameras in most circumstances:
The taking of photographs, making of audio or video recordings, or electronic broadcasting of judicial proceedings in or from a court room must not be permitted by any district court (including any bankruptcy judge or magistrate judge) in this circuit. This order does not affect recordings made by court reporters or otherwise expressly required or permitted by law, such as closed circuit telecasting to victims of crime under Section 2353 the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, the conduct of judicial proceedings involving participants in multiple locations linked by videoconferencing, or the use of electronic equipment by the judicial branch for internal functions such as security monitoring. At its discretion, a district court may permit hotographs, and audio and video recording, on ceremonial occasions.

In his opinion, Easterbrook held that Judge McDade violated this policy by allowing cameras in to the hearing.
The 7th Circuit policy takes precedence over the local court rules of the Central District of Illinois, which generally bar cameras and other recording devices from the entire courthouse, except with specific permission for hallway interviews in a specific location:
No electronic devices will be permitted into the courthouse subject to the exceptions below. ...
News media representatives wishing to conduct interviews in relation to a court case may contact the presiding judge to seek permission to bring electronic equipment into the building for that purpose. If permission is granted, the judge will designate a specific area of the courthouse where such electronic equipment may be stored and used. After the interviews are completed the equipment must be immediately removed from the courthouse.

Local Rule 83.7(A) (p.74 in linked pdf).  

The major exception in the rule applicable to the news media is limited to naturalization or other ceremonial proceedings, "or otherwise as ordered by the presiding judge." Local Rule 83.7(B)(1).
According to Easterbrook,
[Judge McDade] stated that he had believed that he could grant an exception to the local rule, but that he now realizes that this belief was mistaken. Whether or not a single district judge is permitted to grant exceptions to a given local rule, no judge may disregard the Judicial Council's resolution. 
In Re Complaint Against District Judge Joe Billy McDade,  slip op. at 2.

Judge McDade initially decided to allow only local television stations to cover the September 15th hearing, in which various parties were permitted to comment on the consent decree which settled the case, with the expectation that the local stations would cover the hearing live.  But after lawyers for the local newspaper, The News-Gazette, moved to intervene and argued that the paper should be permitted to bring in its own video and still cameras, McDade opened the hearing to video, still camera, and audio coverage more generally. 

In the end, "at least four video cameras, two audio recorders and one still camera" recorded the hearing, according to The News-Gazette coverage.  Besides the newspaper, cameras were present from the local TV stations, and two local radio stations used audio equipment.  The resulting video won't win any drama awards, but is certainly of interest to the Champaign community.
Despite his ruling allowing coverage of this hearing, Judge McDade still isn't convinced that coverage of federal civil trials should be a regular occurrence.  "I still believe cameras in the courtroom are a distraction," he said in response to the newspaper's motion, according to The News-Gazette story.  But, he added, in the Champaign school case, "I want the general public to get as much information as possible."
McDade expressed the same sentiment in his apology letter to Easterbrook.
Because of the considerable interest in the case by the Champaign community over the past seven years during the existence of the Consent Decree I wanted the widest possible dissemination of the hearing. ... At the time, I erroneously thought that I had the authority to waive the Rule because of the great public interest. I was wrong ...

In his opnion ciding Judge McDade, Easterbrook noted the ongoing debate about whether cameras should be permitted in federal courtrooms, but ruled that this was a policy question beyond the purview of a district court judge.
The role of cameras in the courtroom is a subject of ongoing debate in the legislative and judicial branches, and among members of the public. People of good will advocate photography and broadcasts; other people of good will think that cameras would have ill effects. No matter what one makes of these contentions, once the Judicial Conference of the United States and the Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views.
In Re Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (7th Cir. Jud. Coun. Sept. 28, 2009), slip op. at 1-2.

Easterbrook concluded that while Judge McDade's decision to allow the cameras was improper, no disciplinary action was necessary.
The 1980 Act's goal is to ensure performance of each judge's duties. I am satisfied that Judge McDade's apology and promise to comply in the future accomplish this objective. As far as I can see, none of the litigants suffered any injury from the broadcasting (the proceeding, a "fairness hearing" on a settlement, did not entail the taking of testimony), and none of the litigants has complained. Thus "corrective action" can be "effective" without and steps beyond the apology and commitment to follow the rules in the future. 
Id., slip op. at 2.

In his mea culpa, McDade actually thanks Easterbrook for his forbearance:
I was in clear violation of these policies and will do anything necessary to make amends. I have already apologized to my colleagues here in the Central District and assured them that in he future I will strictly comply with our Local Rule regardless of any other considerations.  I would be happy to do anything you ask to confess my violation of the policy and my intent to never deviate from the policy in the future. In that regard, you are authorized to release this letter to the public or whomever you choose.

So the sanctity of federal courtrooms in the 7th Circuit is preserved.  But the public interest in seeing their courts at work, especially in resolving a case that will affect the schools of Champaign, Ill. for years to come, is slighted.

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