VI. How Do Jurisdictional Issues Affect Business Continuity Efforts?

A. Why Is This an Issue?

Legal authority for courts to address changing conditions refers either to explicit constitutional or statutory language that specifies the power of the court to move court operations or to the lack of a constitutional or statutory provision that restricts them to a given location, courthouse, or courtroom. For legal authority, the court can rely on the power granted by the constitution or statute in terms of both planning for an emergency and executing a recovery effort after the event. The silence of statutes or constitutions means that the court must rely exclusively on its inherent powers or on the powers of the judicial branch in general.

For example, a dependency court has a statute permitting it to meet “within the county” for which it has jurisdiction. In the case of a fire that destroys the courthouse it normally sits in, the statute would appear to give explicit authority to move “within the county,” granting the court the flexibility it would need. But what then of a situation in which the county itself is unable to support even basic functions, such as could occur in the event of a hurricane? Here, the same statute has the opposite effect, apparently restraining the authority of the dependency court to move and curtailing its flexibility to continue to conduct cases and oversee dependents. This becomes exceptionally problematic where the dependents, their custodians or caretakers, or both have fled the county.


B. Why Is This Issue Important?

Those in vulnerable situations look to consistency to provide stability. Appearing before the same judicial officer in the same courthouse is a child-welfare best practice that provides that sort of consistency, even if the events and life of the dependent are changing from foster care to family, from family to temporary protective placement, or any one of the myriad of changes that can occur in the course of abuse and neglect cases. However, events as simple as a water-main break and as complex as a major natural disaster can change this, forcing the foster child to (at best) go to a different courthouse or a different judge or (at worst) flee the area and take residence elsewhere in the state or even the country. Reestablishing normalcy by returning to pre-emergency conduct becomes essential for the safety, permanency, and well-being of foster children.

Courts must balance the need for consistency in terms of places where hearings are heard and the need to address ongoing emergencies as they occur. Courts must have this authority and flexibility established long before the emergencies occur. In the case of Hurricane Katrina, the federal district courts simply moved first and then sought legislative approval of the relocation outside their assigned districts. The state courts in many cases were not so fortunate because the state legislatures were unable to convene. The trial courts were forced to rely on their inherent powers and issue orders themselves or await orders as directed by their state courts of last resort.

C. Suggestions and Considerations

While judges and court administrators can do little to help in the movement and relocation of parties and participants in dependency cases, they are able and, indeed, responsible for their “bench” (i.e., the court), its location, and its judges.

1. Same bench, same location, same judge: This is the best-case scenario after an emergency because the event was not so catastrophic as to prevent the conduct of cases. Parties and participants are able to reach the courthouse. There may be slight delays in proceedings requiring adjournments of hearing dates, but otherwise there are no major difficulties.
2. Same bench, same location, different judge: Circumstances such as these need not be the result of an emergency; a judge of a juvenile court that suddenly falls ill and is unable to hold hearings can prompt this scenario. Here, the court simply transfers the hearings to another judge of the same bench and proceeds accordingly. The advantage is that this is least disruptive to the parties involved, the newly or temporarily assigned judge is presumably as well versed in dependency matters as the previous judge, and everyone knows where the proceedings are to be held.
3. Same bench, different location, same judge: This scenario can take on two forms. In the first, the normal building for sessions is simply unable to handle cases as the result of an incident such as a fire, loss of electricity, and the like. The alternate location ought to be as close to the original as possible and mechanisms in place to notify parties, participants, and staff of the change. In the second scenario, the entire area (say, a county seat or even an entire county) is unable to support normal judicial functions. In this situation, it may be possible for the proceedings to continue in a nearby county before the same judge in the other county’s courthouse. The difficulty here is that a judge’s authority in many instances may be limited to a specific geographic location, most often a specific county. Therefore, the judge and the parties may be able physically to move to the other county, but the judge has no authority there. In either of these two scenarios, the advantage is the presentation of the case before the same judge and the stability and consistency that entails.
4. Same bench, different location, different judge:  At best, this is simply a continuation of scenario 3 above where the courthouse or the entire county is inoperative and the judge’s jurisdiction ends at the county line. At worst, this would involve a natural disaster that requires the transition of the parties and participants far from their home jurisdiction in the state. Regardless of whether it is a matter of a few miles or hundreds, the same problems can arise. However, by the case remaining with the same bench it will be handled by judges and staff familiar with those specific dependency matters. The drawback in the change of location and judge can mean confusion for parties and participants and the need to fully acquaint the new judge of the specifics of each cases. The new judges may find their dockets suddenly flooded with dependency cases from the disaster area.
5. Different bench, same location, different judge: As with scenario 2 above, circumstances such as these need not require a massive disaster. A county that has but one judge assigned to dependency court may need to transfer cases to another judge outside their courts. For example, the judge could fall ill or simply be unable to get to court for a prolonged period of time. The advantage in this scenario is the proximity of the parties and their familiarity with the process and facility. The disadvantage is that the newly assigned judge may rarely or never have handled dependency cases and, therefore, may not be familiar with (for example) either the concepts or the roles and responsibilities of the parties involved.
6. Different bench, different location, different judge: While at first blush this appears to be the worst-case scenario, that may not necessarily be the case. For example, a case in a county that has a specialized limited-jurisdiction dependency court is transferred to another part of the state to a general-jurisdiction court.

The authority of judges and court administrators over their benches, their locations, and their individual judges becomes important during a crisis. Constitutional and legal prohibitions or direct grants of power can be helpful and ought to be examined well before the need to exercise the authority arises. They may be viewed as two issues: who has the authority and what does that authority include?

What types of authority? 

1.   Case movement
a.  Within the benches: Who can move a case from family court Judge X to family court Judge Y?
b.  Among the benches: Who can transfer a case from family court for County X to family court for County Y?
c.  Among courts: Who can transfer the case from a limited jurisdiction family court to a general jurisdiction court?
2.   Location movement
a.  In a building: If a court session cannot be held in one courtroom because it is unusable, who can authorize the movement of the hearing to another courtroom or another room in the building altogether?
b. Within a specific place: If a statute requires the court meet in a county seat, who can decide where in the county seat?
c.  Within a county: If the court meets “in and for the County of X,” who decides where in County X they meet?
d.  Within a state: Who can change the venue or is that required at all?
3.  Judge movement
a.  Within a state: Does the family court Judge for County X have the authority to hold hearings in County Y?
b.  Within the benches: Who can transfer judges to the dependency division?
c.  Among the benches: Can a general-jurisdiction court judge temporarily act as the judge of a separate dependency court? Vice versa?

Who exercises the authority?

1. Chief justice of the state or state court of last resort: A unified, coordinated response to an emergency for an entire branch of government throughout a state can in many ways benefit from placement of power in the hands of one person or a group of persons that already has general supervisory authority over the branch. The advantage of a state-level authority is their ability to work with others in authority at the state and federal level. The disadvantage is, of course, the lack of on-site, on-the-ground knowledge of changing conditions and circumstances in the wake of an emergency. Moreover, at a time when the entire judicial branch, or even a portion of the branch localized to a particular area, is in crisis, the specialized needs of dependency cases can be lost in the mix without a plan to address those needs.

2. Chief judge or presiding judge of the family court: States such as Rhode Island that have specific family courts also have chief judges for the court. Placement of authority in the chief judge of the court places power closer to the specific events and certainly increases the visibility of dependency cases. However, it also presents possible challenges as the chief judge tries to work with other branches and agencies that might not arise if a call is placed by the chief justice of the state.

3. Chief or presiding judge of the trial court: By placing power in the hands of the local chief judge, the responsiveness to crisis is increased because it eliminates the requirement to ask for permission from above. Disadvantages arise when the local chief judge has to contend with civil and criminal and other case types and situations in addition to dependency cases. Moreover, placing power at this level can lead to problems in coordination in situations when a unified statewide response is needed.

4. Individual judges: By placing power in the hands of the individual judges themselves, maximum responsiveness to the needs of parties in dependency cases is achieved. Certainly the concern about the specific needs of the foster children in each individual case is highest here. However, coordination becomes difficult if not impossible if every judge is permitted to operate and respond individually without a clear plan.