A Fifty-State Landscape of Judicial Medical Leave Policies

Blake Points Kavanagh, Knowledge and Information Services Specialist, National Center for State Courts, and ICM Fellow 2018

How many state courts have official judicial leave policies, and what is in those policies? What follows is a summary of a research project on judicial leave conducted for the Institute for Court Management’s Fellows program.

When I first started working at the National Center for State Courts in 2016, I had never thought about judicial medical leave policies. Coming from private practice in Virginia, I probably would have guessed that Virginia judges were state employees and, therefore, covered by the Family Medical Leave Act, like any other court employee. However, when conducting research about this question as part of the Institute for Court Management’s Fellows Program, I was surprised to learn that most state and local judges work without any type of medical leave policy.

In 1989 the American Bar Association (ABA) adopted a recommendation urging states to adopt standards for judicial leave in accordance with the Conference of Special Court Judges: “Recommended Criteria for Evaluating Judicial Leave Policies.” It was believed that judicial leave policies improved judicial accountability and predictability and increased the public’s trust and confidence in the courts. Despite this recommendation, and the subsequent passage of the Family and Medical Leave Act in 1993, most state and local judges still do not enjoy leave policies that address sick, medical, disability, or family leave. The purpose of this research is to gain a national perspective on how state and local judges take leave for their own health or for the health of family members. 

A literature review on the topic of judicial leave revealed a relatively dated body of research. Yet newspaper articles and media inquiries into judicial leave are relatively frequent and ongoing. The literature revealed that courts have been encouraged to create leave policies for decades, while the press continues to highlight judges who have unlimited leave.

The primary questions addressed by the research are:

  • Do state and local judges have judicial medical leave policies?
  • In the absence of such a policy, how do various state judges practically take medical leave?
  • What reporting requirements exist when judges take medical leave?

The data gathered for this project came from two separate surveys: 1) a request made to state administrative office of courts (AOC) human resource departments for judicial leave data in September 2016, and 2) a request made to state AOC human resource departments for judicial leave data in September 2017. Fifty states and the District of Columbia responded to the surveys. The findings showed that fewer than one third of states have formal leave provisions that are applied to judges. In many states, leave is left to the discretion of local presiding judges. A handful of states have leave policies that address vacation or education leave, but remain silent as to medical/family leave. Those states with judicial leave policies that do address medical/family leave vary widely, and some states only have formal policies addressing extended leave. One state provides a model policy that can be adopted locally. Very few states provided survey responses that answered the second question: how judges practically take medical leave. Those that did typically described an informal process whereby judges take leave as needed and coordinate with the court to ensure cases are covered during their absence. While the survey did not specifically ask for reporting requirements, many states cited such statutes or rules in their survey responses as the sole safety net for potential abuses of judicial leave.

Conclusions based on these findings suggest that recommendations for judicial leave policies continue to be appropriate. Eight states have judicial leave policies that address medical/family leave, and such policies enhance public trust and confidence in the judiciary. Many states justify the fact that they do not have a judicial leave policy because they are statutorily or constitutionally precluded from reducing a judge’s compensation during his or her term of office. Yet such states can still implement judicial leave policies that address medical/family leave. States should also consider adopting reporting requirements for extended judicial leave to help increase accountability and predictability. States can also create model policies for consideration by local courts. Finally, judicial conduct codes and judicial disciplinary commissions are often the sole mechanism for addressing potential abuses of judicial leave. If a state has a judicial leave policy or reporting requirements, judicial conduct codes and disciplinary commissions need not serve as the sole safety net for potential abuses of leave.

For more information, please contact the author at bkavangah@ncsc.org.

 

 
 

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.