To the surprise of many, Chief Judge Smith announced on October 18 at the U.S. District Court 2019 Conference that he is passing the Chief Judgeship to Judge McConnell effective December 1, 2019, for the Rhode Island federal district court. The announcement was unexpected because chief judges typically serve seven year terms, and Chief Judge Smith is only six years into his reign. (Judge Smith is not retiring as a district judge, he is simply giving up the Chief Judge title). For reasons aptly explained in Katie Mulvaney’s excellent article for the Providence Journal, Chief Judge Smith stated at the 2019 District Conference that he had essentially completed what he set out to do as Chief Judge, and that it was simply time to pass to baton to Judge McConnell. Changes are probably afoot, including when snow is under afoot, in the form of a new snow day policy.
Just as Chief Justice Roberts functions essentially as the chief executive of the Supreme Court, chief judges of district courts perform chief executive functions for their districts. Chief judges play a key role in the hiring of key personnel such as magistrate judges and the clerk of the court, and they have many logistical, administrative, and policy duties on top of their regular caseload.
Perhaps no administrative duty is as prone to different styles as the snow day policy. Much as the U.S. Supreme Court is currently questioning stare decisis, how much to disturb the snow that has settled (when traveling to work) is subject to wide discretion. The buck stops with the chief judge for calling the shots on when to close the court for inclement weather. As one might imagine, there are many potential philosophies for snow days. Some take the view that it might be snowing in Rhode Island, but as long as it’s not snowing in the Brazilian rain forest, suck it up and scrape the snow off that car. Others go the half-loaf route, and delay court openings for a few hours to allow the roads to clear. Another viewpoint is to rely on the weather forecast or predictions of power outages, or school closings. I worked under two chief judges. For me, the snow day policy was a subject of endless fascination. Through general banter, historical research, and other investigative means, it did appear to me that different chief judges throughout the years have employed varying snow day practices.
According to the Farmer’s Almanac, the upcoming 2019-2020 winter will have a “good amount” of snow and wintry mixes of snow and sleet. If this prediction holds true, we will have many opportunities to glean new-Chief Judge McConnell’s snow day policy. Should court employees, litigants and lawyers invest in four wheel drive for the icy journey to the courthouse, or instead prepare those Toboggans for the slopes? Time will tell.
Chief Judge Smith’s relinquishment of the Chief Judgeship one year early is also an interesting curiosity in light of the resignation mechanism in the U.S. Code for chief judges of federal district courts. 28 U.S.C. 136 sets the criteria for chief judges — generally, the chief judge is the senior-most judge who is 64 years old or younger and who has never served as the chief judge before. 28 U.S.C. 136 says that a chief judge “shall serve for a term of seven years.” However, under 28 U.S.C. 136(d), the chief judge can relinquish the title early by “certify[ing] to the Chief Justice of the United States,” after which the next most senior judge becomes chief judge.
But what happens if, after Chief Judge Smith steps down, Judge McConnell serves out his term or also relinquishes the title, and then Judge McElroy serves out her term or relinquishes the title? In that event, if Judges Smith, McConnell and McElroy are all still on the court as active judges, there would be no one left to serve as chief judge. The District of Rhode Island only has three active judgeships. 28 U.S.C. 136 speaks in absolute terms, stating in several places that there “shall” be a chief judge in the district. Would a statutory problem arise if no one is left to serve? Probably not, because the “shall” language in 28 U.S.C. 136 would likely be interpreted as directory guidance for the court, as opposed to mandatory, because there is no sanction in the statutory scheme for non-compliance. Kelly v. United States, 924 F.2d 355, 360 (1st Cir. 1991) (explaining that use of “shall” in a statute does not necessarily require mandatory compliance); Burlington v. Dep’t of Educ., 736 F.2d 773, 797 (1st Cir. 1984).
Statutory “shalls” that are directory are essentially aspirational, while “shalls” that are interpreted as mandatory are enforceable with consequences. The distinction between “directory” and “mandatory” statutory language is a way for courts to differentiate between statutes that are intended to provide a remedy for non-compliance from those that are not. Either way, with the all-important snow day policy hanging in the balance, and the endless speculation and anticipation that the snow day policy provides, here’s hoping the D.R.I. never goes without a chief judge.