Vaccine Patchwork Has Federal Judges Scrambling For Shots

Law360 (January 21, 2021, 1:22 PM EST) -- Federal judges have been largely left on their own to plead with state officials for inclusion in the categories of workers being prioritized to receive the COVID-19 vaccine, and they say they have met with limited and spotty success.

Several chief judges from district and circuit courts have written to the governors and health departments of their states since December, making the case that judges and other court staff should be prioritized for vaccination. Many of these judges have pointed to the need to tackle a growing backlog of cases and the constitutional mandate to provide criminal defendants with speedy trials, both of which have been complicated by nationwide court closures resulting from the pandemic.

"Because of our concern that criminal defendants, especially those in custody awaiting trial, should have their cases adjudicated as promptly as possible, and in consultation with the Administrative Office of the U.S. Courts, I decided recently to ask the state of Michigan to prioritize COVID-19 vaccinations for our judges and staff," Chief U.S. District Judge Denise Page Hood of the Eastern District of Michigan told Law360 Pulse in a statement.

But while the U.S. Department of Homeland Security has categorized judges as essential workers, and the U.S. Supreme Court justices are already in the process of getting vaccinated — some have already received both shots, according to a high court spokeswoman — there is no national vaccination scheme, for judges or anyone else.

The director of the Administrative Office of the U.S. Courts, James Duff, asked the Centers for Disease Control and Prevention in a December memo to include the federal judiciary in the agency's recommendations for its "1b" vaccination group, according to spokesman Charles Hall.

Duff's memo said that the justice system requires significant in-person participation by a wide range of people, and that preserving a timely system of justice requires that judges and court personnel be vaccinated to perform their roles safely, Hall said.

While the CDC has not specifically placed judges in any vaccination phase, it has placed those in the "legal" industry in Phase 1c. The CDC did not respond to a request for comment.

"There is no national judiciary policy for how to seek a vaccination status," Hall said. "Status of judges, if any, would be assessed state by state."

So federal judges around the country have been left to work with state and local health authorities to set vaccination guidance for themselves and other court personnel, something they have been encouraged to do by the Administrative Office, according to Chief U.S. District Judge Pamela Pepper of the Eastern District of Wisconsin.

Judge Pepper wrote to Wisconsin Gov. Tony Evers in December to find out what the process for prioritization is in the state and to ask that judges and court staff be considered, she said.

"We're not asking to jump the line ahead of anybody. We're just reminding you that we're out here and we serve a pretty essential function, and we hope that you'll think about us when you're thinking about what priorities you're going to be setting," the judge said.

The governor did respond to the letter, according to Judge Pepper, but said only that the state would take the judges into consideration when determining its vaccination guidance. "I have not gotten any word that federal judges have been prioritized," she said.

Getting that word — or even finding out when judges and court staff might be eligible — has been easier in some states than in others. States' placement of judges in their vaccination hierarchy has been inconsistent, said Hall, who pointed out that some states have included "legal" employees in their 1b category, as opposed to the CDC's recommended 1c, while other states have not included them in Phase 1 at all.

Michigan recently approved Judge Hood's request and placed the courts in its second priority category, 1b, according to the judge.

The Michigan Department of Health & Human Services did not respond to a request for comment.

In Texas, judges and court staff are only eligible to be vaccinated if they are over 65 or have at least one chronic medical condition, according to Southern District of Texas Chief Judge Lee Rosenthal.

"Members and staff of the judiciary are designated by the United States Department of Homeland Security as critical infrastructure essential workers, but that is not a basis for inclusion in Phase 1b in Texas," Judge Rosenthal told Law360 Pulse. Texas is now in Phase 1b of its vaccination plan.

Judge Rosenthal was one of four chief judges of Texas' federal courts who wrote to Gov. Greg Abbott asking for court personnel to be considered in the Texas allocations for the vaccine, she said. She emphasized, though, that the most exposed members of the court, such as probation and pretrial services officers and public defenders, who interact more regularly with defendants, should be prioritized over judges.

"They are the first-line workers in the federal correctional system," Judge Rosenthal said. "Even apart from in-person hearings, interaction with the person under supervision is key to reducing recidivism and providing the best opportunity for a successful transition to the community."

Abbott did respond to the judges' letter, according to Judge Rosenthal, but he said only that the state has convened an expert panel to develop allocation strategies.

"Texas isn't yet prioritizing people based on occupation, other than front-line health care workers," Texas Department of State Health Services spokesman Chris Van Deusen said.

Meanwhile, Ninth Circuit Chief Judge Sidney Thomas has made a similar plea to California Gov. Gavin Newsom, writing "to request his support for inclusion of federal judges and employees in the early priority phase of the COVID-19 vaccination program in California," he said in a statement.

"It has been necessary to postpone thousands of court cases, creating a long backlog, with many defendants now confined in local jails for over a year awaiting trials that we are unable to firmly schedule," Judge Thomas said. "Maintaining this balance is and will remain nearly impossible until our employees are vaccinated."

The Golden State is not prioritizing judges or other court employees for vaccination, according to guidance on its Department of Public Health website. The California Department of Public Health did not respond to a request for comment.

"In the interest of justice, to continue our efforts to give those charged their right to a speedy trial, and to give judiciary employees a healthy workplace, it is my hope that Governor Newsom will facilitate inoculation of federal court employees at the earliest possible stage in the vaccine rollout," Judge Thomas said.

The patchwork nature of states' vaccination guidance is evident on the border between Pennsylvania and New York. Pennsylvania's judiciary and their staff can be vaccinated in Phase 1c of that state's vaccination plan, a prioritization based on CDC guidance, according to a spokesperson from the Pennsylvania Department of Health.

But across the border in New York, Phases 1a and 1b of the Empire State's vaccination plan include court officers — but not judges, according to that state's health department guidelines. The New York State Department of Health did not respond to a request for comment.

In her weekly address Monday, New York Chief Judge Janet DiFiore said the "failure to include judges in the priority category runs counter to our ability and our efforts to maximize the provision of justice services, and to our central role in protecting public safety and upholding the rule of law."

New York isn't the only state where state judges as well as federal jurists are trying to convince local officials that they and their staff deserve priority access to coronavirus vaccinations. The chief justices of the Michigan, Ohio and California high courts have all also written to their respective states asking that judges and court staff be prioritized for vaccination.

"The Constitution requires in-person proceedings in many cases, and to protect those rights, many judges and court staff have regular close contact with the public," Michigan Supreme Court Chief Justice Bridget McCormack told Law360 Pulse. "This work is essential, and these workers should be vaccinated."

But the jumble of vaccine guidelines means that whether federal judges and other court staff are vaccinated and when depends entirely on what state their courtrooms are in — and how successful individual chief judges are in convincing governors and health department officials that their work is essential to the functioning of government.

And even once federal judges and court staff are vaccinated, courts may still be unable to return to normal operations since many witnesses, attorneys and jurors may not be, Judge Pepper pointed out.

"And so in that respect we are still going to have to be careful and cautious, even after we are vaccinated," she said, "whenever that turns out to be."

--Editing by Alyssa Miller and Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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