The Volokh Conspiracy

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Separation of Powers Dispute in South Dakota: Federal Judge Holds U.S. Marshal in Contempt For Refusing To Provide Vaccination Status

If DOJ won't prosecute DOJ employees, then the judge will appoint a special prosecutor.


A separation of powers dispute is brewing in South Dakota. The facts are somewhat in dispute. Here are the broad outlines. U.S. District Court Judge Charles Kormann demanded to know whether employees of the U.S. Marshal Service were vaccinated. The U.S. Marshal Service refused to provide that information. The Marshal Service is a component of the Department of Justice, but it largely serves the judiciary. Among other responsibilities, the Marshal Service moves prisoners to and from court proceedings. During a hearing, deputy U.S. Marshals declined to tell the judge whether they were vaccinated. (As a general rule, a person who declines to disclose their status is not vaccinated; people who got the jab are all too happy to boast about it.)

Judge Kormann offered this account of the incident in his court:

I returned from Florida on Saturday, May 8. Court had been scheduled by court orders for many weeks and we had six hearings scheduled for Monday, May 10, and six more hearings scheduled for Tuesday, May 11. A deputy marshal from Sioux Falls, on May 10, entered the courtroom with a prisoner in tow. I asked her in the courtroom whether she had been fully vaccinated. She refused to answer and I ordered her to leave the courtroom and not return until I knew the answer to the question. She attempted to take the prisoner from the courtroom and I told her to leave the prisoner where he was, with his attorney, at counsel table, so we could proceed with the hearing. At least one court security officer (fully vaccinated) is at all times in the courtroom. The refusing officer was very discourteous and frankly had to be told that she was bordering on contempt of court, whereupon she left and was replaced by a part time person under contract with the Marshals Service who told me he was fully vaccinated. We continued with the a.m. hearings. When ready to conduct the p.m. hearings, we learned that the Marshals Service had left the courthouse with the prisoners, without telling the Court or the assistant U.S. Attorney present, or the attorneys for the defendants scheduled for hearings, making it impossible for the Court to conduct the hearings long ago scheduled. The Chief Deputy U.S. Marshal called at 2:12 p.m. when I was on the bench and left a message for me to call. This was long after they had already "kidnaped" the defendants, apparently during the noon recess.

Yes, a federal judge accused a Deputy U.S. Marshal of "kidnapping" a prisoner. The judge also charged that the unvaccinated Marshals are the "most dangerous people" in the courtroom–not the prisoners.

I am the safest in the courthouse. I had always thought that the principle responsibilities of the Marshals Service was the protection of the federal judiciary. As it stands now, they could well be the most dangerous people in the courtroom in a given case. I do not know the answer to that as I have no information since deputies, with the encouragement and full support of their supervisors, are refusing to tell me whether they have been vaccinated or not.

The Clinton appointee also criticizes the leadership of the Marshal Service, a Trump appointee, who apparently authorized this kidnapping:

I assume that an official in the Washington, D.C. office authorized and perhaps directed the action which may very well be subject to contempt sanctions. I have never talked with John Kilgallon, the Chief of Staff for the Service nor with Marshal Mosteller. The Marshal has never, since he took office under the Trump administration, visited the courthouse in Aberdeen when I was present. I would not know him if I saw him on the street.

The judge acknowledges that the Marshal employees are not his employees. But he asserts the power to control what happens in his courtroom. And the Marshal obstructs justice by instructing his employees not to answer the judge's questions:

It may be that the Marshals Service may not question deputies as to whether they have been vaccinated. I do not agree with that claim and I believe any employer should be questioning employees about Covid 19 vaccinations to protect the public and fellow employees. They are not, of course, my employees. All of that, however, is a separate issue. One of the questions here is whether the defendants should be instructing or at least encouraging deputies to refuse to answer a vaccination question posed by a United States District Judge in the courtroom. I believe they are very likely interfering with and obstructing the administration of justice, contrary to their oaths of office. The officials have had more than enough time to carefully consider the foolishness of their actions. All the Article III judges in the District of South Dakota have tried to completely cooperate with the marshals, all to no avail. They advance the claim that policies set by the executive branch, i.e. the Marshals Service, can override lawful directives and orders of Article III judges. Who is running the courts, judges or bureaucrats who themselves are sitting in their offices in the District of Columbia, totally not exposed to Covid problems in their work-places?

As discussed above, the recent actions of the United States Marshals Service personnel in court and in the courthouse constituted direct disobedience to court orders. Following my sanction of requiring a Deputy U.S. Marshal to leave the courtroom for violating my order, the U.S. Marshals Service and defendants retaliated by "kidnaping" criminal defendants who had been ordered to appear before me. Those actions interfered with the administration of justice and were deliberately designed to do so, without regard to the statutory and constitutional rights of the criminal defendants, the busy schedules of the Department of Justice attorneys. Federal Public Defenders, Criminal Justice Act attorneys, and the disruption of judicial staff. Those actions constituted both in-court contempt and out-of-court contempt interfering with judicial proceedings. These rash and unreasonable actions caused each defendant to be in violation of a court order to appear for the given hearing, either a sentence hearing or a change of plea hearing.

I had thought that the concept of obstruction of justice was pushed beyond all recognizable bounds during the Trump administration. Judge Kormann has now extended those bounds. (I trust this blog post does not constitute civil  contempt in South Dakota).

Judge Kormann ordered the defendants to appear to show cause why they should not be held in civil contempt. DOJ lawyers filed a brief opposing the contempt citation. DOJ contended that the prisoners were removed to ensure the court's safety. Here is an excerpt:

Second, the evidence will show that the Marshals Service did not temporarily remove the criminal defendants from the courthouse to obstruct the administration of justice or retaliate against the Court for its decisions on how to conduct its proceedings. Rather, the Defendants acted in compliance with their statutory mandate to ensure the physical safety and security of individuals in a federal courtroom, specifically the Court, its personnel, litigants, and members of the public. Moreover, they acted in good faith when faced with an unprecedented, urgent situation—the forced removal of its deputies while a dangerous criminal defendant remained in the courtroom. At that point, the Marshals Service could no longer ensure the safety of the courtroom consistent with its statutory obligations and its policy. Marshals Service policy mandates that at least one deputy marshal must be present to provide judicial and courtroom security whenever an in-custody person is physically present in the courtroom, regardless of the presence of district security officers or court security officers. That policy also is reflected in its court security officer contract. Accordingly, Defendants made the good faith determination that they had to temporarily remove the criminal defendants from the courthouse to comply with their statutory obligations and policy. In addition, the Defendants took remedial action soon after the issues arose to substantially comply with the Court's scheduling order to ensure that the criminal defendants were produced and their hearings could go forward with as little disruption to the Court's schedule as possible. The Defendants offer their sincerest regrets for the delays in communication that may have impacted the Court's operation. 

But those regrets were insufficient. The marshals are dangerous–not the prisoners.

Judge Kormann held a hearing yesterday. The ABA Journal rounds up the news coverage. And the local paper has some choice excerpts:

"When you move someone against their will, that's kidnapping," said Kornmann. "I don't care who you are." … "Nothing like this has ever been done in this country," bellowed Kornmann on Monday at the morning hearing. "This was such a most outrageous thing to do." … "You have dug yourself into a deep hole," said Kornmann, who appeared visibly angry at points and almost at a loss for words during the proceeding, adding their continued defense suggested the defendants had "brought their own shovels" to Monday's hearing.

Judge Kormann stated if the U.S. Attorney refuses to prosecute the case, the court would appoint a prosecutor. I'm sure Merrick Garland would be thrilled to prosecute his own marshals for contempt.

Judge Kormann's conduct reminds me a bit of Ex Parte Merryman. During the Civil War, Chief Justice Taney ordered the court marshal to arrest General Cadwalader, so he could be held in contempt of court. The poor Marshal was unable to effectuate the arrest. Here is Taney's account:

After it was read, the chief justice said, that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done.

Judges sometimes need to be reminded of the limits of their power. DOJ should start drafting the mandamus petition for the 8th Circuit.