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August 04, 2023 Feature

A Discussion on Judicial Security and Privacy with Federal Judge Esther Salas

By Judge Frank J. Bailey (Ret.)

Attorney General Merrick Garland, a former federal judge, has referred recently to the oath taken by many judicial and law enforcement officials that they will serve the public “without fear or favor.” Judges make many promises in their oaths, but a promise that our American society must in turn make back to the judge is that she can carry out her work secure in the knowledge that she and her family can do so safely. Unless judges, state and federal, are able to meet the commitments of their office without fear that their work will endanger themselves or their loved ones, an essential element of our democracy is lost.

On July 19, 2020, a disturbed and disgruntled attorney, dressed as a deliveryman and armed with a gun, rang the doorbell at the home of U.S. District Court Judge Esther Salas. The attorney, a self-avowed antifeminist, had appeared before Judge Salas and had written hateful racist and sexist rants about her. He was led to her door that day by personal information he had found on the internet. When Judge Salas’s 20-year-old son, Daniel Anderl, answered the door that day, the gunman shot Daniel dead and grievously injured Judge Salas’s husband, Mark, by shooting him three times. By this heinous conduct, the shooter attempted to contort our beloved democracy by introducing fear into Judge Salas and every other judge in the United States. The result was quite the opposite.

I am honored to know Esther Salas and have followed with interest her long campaign to ensure that Daniel’s murder results in greater safety to every judge, state and federal, sitting and retired, and to their loved ones.

The following is from an interview I had with Judge Salas in April 2023.

Judge Salas, thank you for all you have done for the American judiciary. So, we are focused on judicial security, but I know our readers, including many law students and young lawyers, would like to know a little more about your path to the bench.

Thank you for spending time with me, Frank, and I extend my special gratitude to the ABA Judges’ Journal for devoting an entire issue to judicial security. I am so proud to be the first Hispanic to serve as a U.S. magistrate judge and then the first Hispanic woman to serve as a U.S. district judge in the District of New Jersey. I am the daughter of a Cuban mother and a Mexican father, and having been born in California, I consider myself equally blessed to be an American. When I was a child, my mother and father separated, and my mother relocated to New Jersey, where she raised me and my siblings. I graduated from Rutgers University, New Jersey’s state university, and from Rutgers University School of Law in Newark. I had a chance to serve as a law clerk to a judge on the New Jersey Superior Court, which was a great way to start my career. After a few years of private practice, I worked at the federal public defender’s office in Newark. I was always very active in affinity bar associations and was the president of the Hispanic Bar Association of New Jersey. I strongly recommend bar association activities to new lawyers.

It seems like judges are being targeted more in recent years than ever before, am I right?

You are right. According to statistics from the U.S. Marshals Service, the number of threats and inappropriate communications to judges reported to the agency have risen dramatically in recent years. From 2015 to 2021, those reports have more than quadrupled, from 926 in 2015 to 4,511 in 2021. And based on the recent statistics, these numbers remain at incredibly high levels. Some people have acted on their evil intent since the brutal attack on my family in July 2020. Nearly two years later, on June 3, 2022, retired Wisconsin Judge John Roemer was murdered in his home by a man that he had sentenced to prison close to 17 years earlier. Within days of this troubling incident, an armed man was arrested outside the home of Justice Brett Kavanaugh, who was at home with his family when the incident occurred. It is alleged that this man, who obtained the justice’s home address off the internet, was intent on killing the justice. The potential for a threat to a person who has served or is serving on the bench never ends.

The man who attacked your home in 2020—was there evidence that he had other judges or officials in mind for attack?

Yes, an investigation revealed that Daniel’s murderer had a list of more than a dozen other targets, including two judges and a Supreme Court justice. He was able to find information on all of us through personally identifiable information, called PII, on the internet. As for his work-up on me, his information included my home address, the routes I took to work, my son’s sports schedules, my husband Mark’s work address. He even had information about our parish. This open-source information about our personal lives is of the sort that is usually public. However, judges are entrusted to adjudicate claims, and our rulings often result in 50 percent of the people that come before us being unhappy with the outcome. When you consider the emotionally charged dynamic of our work, even innocent information provides disturbed and angry people with ammunition necessary to do us and our families harm.

Judge Salas, I want to turn to the Daniel Anderl Judicial Security and Privacy Act of 2021 that was signed by President Joe Biden on December 23, 2022. Congratulations on your success in getting the bill passed after a dedicated effort that you led for almost three years. But first, New Jersey passed an innovative law to protect participants in the justice system; can you talk about that?

The first New Jersey law on judicial security and privacy, called Daniel’s Law, was signed into law in 2020 to protect the home addresses and telephone numbers of judges, prosecutors, and law enforcement officers from public disclosure. Then, in 2022, the state legislature passed a new law to assist in the implementation of Daniel’s Law. Under the 2022 law, a state Office of Information Privacy in the Department of Community Affairs was created to allow authorized persons to submit or revoke a request for the redaction or nondisclosure of a covered person’s home address from certain public records or internet postings. This process is complicated. It requires close coordination between state and federal authorities, as well as the private sector.

Speaking of the federal side of this effort, can you tell our readers what the Anderl law does to protect federal judges?

The legislation requires that databases and other internet platforms remove PII—private information related to a federal judge or their family—such as home addresses, sensitive financial information, or employment information of their spouse—if the judge requests the information’s removal. The law applies to sitting, retired, senior, and recalled federal judges. In the internet age, it has just become too easy for a person with malicious intent to find a judge’s home and track his or her movements, as well as the movements of family members. The law allows the federal judiciary’s administrative office to file lawsuits—which carry the threat of fines and other penalties—against internet sites or other entities that don’t comply with demands from judges that certain personal information be taken down within 72 hours. The categories of personal information that can be restricted from public view under the bill include judges’ full birthdays; home addresses, including second homes; sensitive financial information like bank accounts and credit card information; and information related to their spouses’ employment. Relatives of the judge, like their spouses, children, or even anyone living at a judge’s home, can also make the removal demands.

What were the biggest challenges in getting the bill passed? I watched carefully as it navigated its way through two congresses.

We understood that all judges, state and federal, are public servants, and that the public has a right to know who these servants are and something of their backgrounds. Transparency is a critical concern. The law that passed was the result of what I will call intense negotiation about freedom of the press and free speech rights. While some First Amendment concerns were raised about the law, we addressed these concerns by narrowly tailoring the law and excluding redactions when there is legitimate media interest in the information, or it involves a matter of public concern. Additionally, the new law does not displace the current annual disclosure requirements that federal judges have been filing for many years.

I see that the law has a grant program where a state can request funding to facilitate or expand the protection of PII of federal judges and their families. And the grants may be used to “create” or “expand existing” judicial privacy programs. What about state court judges—to what extent does the law apply to them?

This is what I was waiting for you to get to! The answer is not enough: The law allows state and local governments to request grants to implement or expand existing programs meant to remove PII, but right now only federal judges and their families are covered. So, where New Jersey has a protection and privacy program that already covers state judges, it can request a grant to expand the program to add federal judges. If a state has not adopted a program, it can request a grant in connection with the creation of the program. States need to adopt a program to protect the privacy of their judiciary.

Have you thought about what more needs to be done and, most important, how it can be done to protect our brothers and sisters on the state courts? After all, the vast majority of people who appear in a court in this country appear before a state or local judge.

The federal judicial organizations, such as the Federal Judges Association, the Federal Magistrate Judges Association, and the National Conference of Bankruptcy Judges, as well as the ABA and the Federal Bar Association, worked hard to help ensure passage of the Anderl Act. We now need to organize those same organizations and state and local bar groups to ensure that every state passes a bill similar to Daniel’s Law in New Jersey. Remember, state judges face all the same threats that federal judges do, and violence against the courts at any level of government threatens democracy.

The status of protections for judges on a state-by-state basis is something that I know you have been following closely. Can I refer our readers to a listing of what every state has adopted for the protection of PII for judges in that state?

A schedule of what each state has done to protect the personally identifiable information of judges and other public officials has been created by the Library of the U.S. Courts of Appeals for the Seventh Circuit. We are happy to circulate that information to anyone who may be interested in accessing it.

Thanks for referencing that resource. Judge Salas, it sounds to me like we have not heard the last from you on enhancing judicial security and privacy, right? And thank you so much from the men and women of the ABA Judicial Division for spending time with me to do this interview.

No, Frank, you certainly haven’t heard the last of me when it comes to ensuring that all judges are protected in the United States of America. As the daughter of immigrant parents, I know only too well that much is at stake if we don’t do something to protect our judiciary. Our constitutional system hinges on an independent judiciary, and judges at all levels of government must be able to do our jobs without fear of reprisal, retribution, or death. The integrity of our judicial system mandates that we stand united to protect our country’s democracy. Thanks to our son’s bravery and courage, Mark and I live another day to fight for better protection for judicial officers all through this great nation. May God bless you and all the men and women of the ABA Judicial Division for doing your part to spread this important message. 

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Judge Frank J. Bailey (Ret.)

PioneerLegal, LLC

Judge Frank J. Bailey (Ret.) served as abankruptcy judge for the District of Massachusetts for over 13 years and is now president of PioneerLegal, LLC. He has taught a variety of law courses and is a past president of the National Conference of Bankruptcy Judges.