U.S. Marshals face contempt of court for refusing to follow a federal judge’s orders and disrupting court proceedings in Aberdeen.
On March 25, Judge Charles Kornmann issued a memo to his Aberdeen courthouse staff asking them all to tell him in writing whether they had gotten their shots for coronavirus or, if not, when and where they had scheduled their vaccinations.
We are not talking about politics or conspiracy theories. We are talking about science and protecting all of us who serve the public here as well as the jurors, lawyers, and parties who come to this building. If you are refusing to take the vaccines, I want to know that so I can decide what further action is required on my part. I hope we will all act in a responsible manner as I am not looking for confrontations [Judge Charles Kornmann, memorandum to Aberdeen courthouse staff, 2021.03.25].
Judge Kornmann was following up on a similar memo from our district’s Chief Judge Roberto Lange. Judge Lange supported Judge Kornmann’s memo with a district-wide staff e-mail on April 1 in response to questions he received from staff. According to Judge Lange every judge in the South Dakota district supports Judge Kornmann’s position on ensuring the safety of their workplace:
First, nothing in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) bars federal judges or the federal judiciary from learning which employees are and are not vaccinated. We researched HIPAA before we modified our juror questionnaire to ask if potential jurors have been or are scheduled to be vaccinated. We have a right, and indeed in my view an obligation in assuring the safety of the workplace, to find out who has and has not been vaccinated. All of the district judges have discussed and agreed that we will have to know who has and has not been vaccinated to decide how we are going to conduct court operations going forward [Judge Roberto Lange, e-mail to South Dakota District Court staff, 2021.04.01].
Judge Lange made clear that South Dakota’s federal judges expect all federal courthouse employees to get their shots:
Second, we have discussed a date by which we expect all employees to be vaccinated and likely end teleworking arrangements. That date probably will be June 1, 2021. That will allow ample time for all to get vaccinated and indeed for any with vaccine hesitancy to observe that the vaccines are indeed safe and effective. For those with vaccine hesitancy, I implore you to talk with your physician or medical provider. I would make myself personally available as well to discuss and address concerns; I surely would like to know if I have overlooked a particular grounds for vaccine hesitancy in sending the Johns Hopkins information an in my prior email. For those with vaccine hesitancy, please know that vaccines have solved polio, rubella, tetanus, measles, rabies, whooping cough, mumps, chickenpox, diphtheria, etc. You likely have had your children vaccinated to enter school, and your pets vaccinated for their well-being. A miniscule [sic] percentage of people with anaphylaxis are excused from being vaccinated for COVID-19, and we will accommodate any such employee in the unlikely event that we have one. Although I do not expect any of you to be so calculating, no one should expect that they can refuse to get vaccinated and thereby continue teleworking; that will not occur [Lange, 2021.04.01].
Judge Lange then told any radical vaccine opponents that maybe they aren’t cut to work for Uncle Sam:
Third, if any of you labor under such extreme views that the federal government is implanting a chip through this vaccine, then you should not work for the federal judiciary and need to find work elsewhere. I truly hope that none of you are so prideful and stubborn that this email steels your resolve not to be vaccinated. But if that is the case, then you have some soul searching to do this Easter season about whether you belong in a team setting such as we have here [Lange, 2021.04.01].
Judge Lange concluded by saying, “Let’s all get vaccinated as soon as possible so that we can all move forward as a team and without this being an issue.”
Alas, the U.S. Marshals aren’t team players. On April 15, U.S. Marshal for the South Dakota District Daniel Mosteller told Judge Kornmann that he and his South Dakota Marshals refuse to give their coronavirus vaccination information:
The C-19 vaccinations were approved by the FDA under an Emergency Use Authorization (EUA). The EUA allows the FDA to authorize unapproved medical products to be used in an emergency. Given the EUA status of the C-19 vaccination, the USMS is not requiring employees to be vaccinated, at this time. Aside from the emergency use status issue, there are addition areas that cause me concern. Compelling individuals to be vaccinated or delving into their rationale/reasoning for not being vaccinated is very problematic. We are encroaching on EEO statuses when it concerns medical information, disabilities, and religious beliefs. As such, at this time, USMS employees will not be providing their respective vaccination status to the Court [U.S. Marshall Daniel C. Mosteller, letter to Judge Charles Kornmann, 2021.04.15].
Judge Lange took this refusal straight to the top of the Marshal Service. On May 4, Judge Lange wrote to the U.S. Marshals’ chief of staff in Washington, John Kilgallon, to make clear that South Dakota’s judges have the authority and the obligation to ask anyone entering their courtrooms whether they’ve been vaccinated for coronavirus:
Guidance from the Administrative Office of U.S. Courts makes clear: “Inquiring whether an employee has ben vaccinated for COVID-19 is not a prohibited disability-related injury.” There is nothing in the Health Insurance Portability and Accountability Act preventing us from learning vaccination status of employees. Indeed, we need to know precisely who among out employees remain unvaccinated to mitigate their risk of contracting the virus and to control the risk they pose to others in the courthouse, including members of the public and other federal employees.
I expect that we can all agree on the following: 1) the COVID-19 vaccine is safe and effective; 2) people who are vaccinated are far less likely to become infected with COVID-19 and become less ill if infected than those who are unvaccinated; 3) the vaccine is readily available to all Deputy U.S. Marshals and court employees; 4) the safest courtroom is one where everyone is fully vaccinated; 5) a report of a COVID-19 positive from someone who works in the courtroom at a minimum disrupts scheduling and working through the backlog of criminal hearings and cases; 6) we in management have a dual responsibility of safety of employees as well as performing our jobs to serve the interests of justice; 7) knowing the vaccination status of an employee is important to formulating and taking precautions, as well as knowing who is at greatest risk to contract and spread the virus; 8) getting people vaccinated is critical in achieving so-called herd immunity and ending this pandemic; and 9) the District Court and U.S. Marshals Service have a shared interest in ensuring the safety of the courtroom and courthouse.
With these interests in mind, this Court likely will debar from chambers and courtrooms all its employees who refuse to be vaccinated. The district judges in South Dakota also want to avoid having unvaccinated Deputy U.S. Marshals in the courtrooms [Judge Roberto Lange, letter to John Kilgallon, Chief of Staff to Director of United States Marshal Service, 2021.05.04].
Choosing anti-vaccine stubbornness over public safety and respect for the courts, the Marshals provoked a courtroom confrontation on May 10. Judge Kornmann ordered a deputy Marshal to leave his courtroom when she refused to tell the judge whether she’d been vaccinated:
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 she was bordering on contempt of court, whereupon she left and was replace 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 [Judge Charles Kornmann, Order to Show Cause, In Re Contempt Sanctions Against Kilgallon, Mosteller, and Houghtaling, 2021.05.19, pp. 4–5].
But when Judge Kornmann turned to the afternoon hearings, he learned the the Marshals had left the Aberdeen courthouse during lunch and removed defendants who were scheduled to appear before Judge Kornmann. In court, Judge Kornmann got Chief Deputy Stephen Houghtaling on the phone to ask what the heck was going on:
THE COURT: Did you order the marshals to remove the prisoners who were here pursuant to a court order?
CHIEF DEPUTY HOUGHTALING: Your Honor, with the exclusion of our deputy from the courtroom, we cannot safely provide the level of security we need for — to proceed with court proceedings. Our policy requires deputy marshals in the courtroom. And I cannot achieve that without — without deputies physically being in the courtroom during court proceedings.
THE COURT: You had a deputy here who was fully vaccinated so I don’t believe that statement.
THE COURT: That’s correct.
CHIEF DEPUTY HOUGHTALING: So with that, Judge, we need to be able to have deputies perform the court security function.
THE COURT: You had a deputy here. And he was in the courtroom and handled the hearing.
CHIEF DEPUTY HOUGHTALING: Are you referring to Mr. Kolb by chance? Scott Kolb?
THE COURT: I don’t know his name, I’m sorry.
THE CLERK: Steve, I believe the reference is to the what I’m going to call as the guard that the Marshals Service uses up here.
CHIEF DEPUTY HOUGHTALING: Yep. So, Judge, Mr. Kolb is a part-time employee of ours. You have probably seen him for some time — he has worked with us for years and years — as long as I’ve been in the District. But he alone does not meet our national policy to staff court proceedings. We can have the deputy marshal in addition to Mr. Kolb, but we cannot just have Mr. Kolb staffing a court proceeding with no deputy marshals. Your Honor.
THE COURT: Let me ask you this. Did you make the decision to order them to remove the prisoners?
CHIEF DEPUTY HOUGHTALING: The Marshals Service made the decision, Your Honor, yes.
THE COURT: Who — who in the Marshals Service did that?
CHIEF DEPUTY HOUGHTALING: It was the U.S. Marshal for the District and I believe in consultation with our headquarters.
THE COURT:Without any consultation with the Court?
CHIEF DEPUTY HOUGHTALING: No, Your Honor. I did attempt to call Ms. Paepke earlier and she advised you were in court. But based on—based on the exclusion, we don’t have much of a choice. We cannot safely move forward with the court proceedings, Judge, at this point.
THE COURT: Are you aware of the fact that the Marshal sent me an email probably two weeks ago inquiring what the policy was and I emailed him back and told him that no employees, including U.S. marshals, who were not vaccinated –fully vaccinated would be in the courtroom or my chambers.
CHIEF DEPUTY HOUGHTALING: I am aware, Judge, yes. The Marshals Service, I could tell you, has taken a position and responded to Chief Judge Lange this morning that the Marshals Service employees do not have to disclose their vaccination status to third parties, including the Court.
That’s the position of the Marshals Service at the national level, which was — which came in response to Judge Lange’s letter that he sent last week, Judge, which I thinkyou’re familiar with.
THE COURT; Yes. Well —
CHIEF DEPUTY HOUGHTALING: So our headquarters responded today with the guidance that Marshals Service personnel do not have to give their vaccination status to third parties, including the federal judiciary.
THE COURT: The Administrative Office of the U.S. Courts says that’s wrong. So I guess we have a direct confrontation between the Marshals Service and the Administrative Office, as well as all of the federal judges in South Dakota [courtroom phone conversation between Judge Charles Kornmann and Deputy Marshal Stephen Houghtaling, transcribed in U.S. District Court of South Dakota, Northern District, Aberdeen, SD, 2021.05.10].
During the call, Judge Kornmann noted that by refusing to produce the defendants for their scheduled court appearances, the Marshals were “tying up a lot of lawyers as well—as well as the court personnel and keeping people in custody longer than they should be probably.” Off the phone, Judge Kornmann said he was open to the idea of having the marshals sit with defendants in a video conference room downstairs to conduct hearings. “I’m not trying to make things difficult for anybody. But I’m going to make sure that the courts run the courts, not the Marshals Service or some bureaucrat from Washington.”
The judge got Houghtaling back on the line to propose the videoconference solution. Houghtaling said he could get the defendants back to the building by the afternoon. But that didn’t change Judge Kornmann’s intent to hold a contempt hearing. On May 19, Judge Kornmann filed contempt sanctions against Chief of Staff Kilgallon, Marshal Mosteller, and Chief Deputy Marshal Houghtaling for disrputing his court’s proceedings on May 10. In his order to show cause, Judge Kornmann says the court’s authority and public health prevail over any claim the marshals may make:
Public health comes first. We are dealing with a disease which is highly infectious, that is easily transmittable indoors, and that can kill those infected. There is no right of any person to thwart this Court’s safety measures to protect court personnel as well as the public. Certainly, no employee of another federal agency has the right to interfere with the Court’s authority or the conduct of criminal and civil court proceedings [Kornmann, Order to Show Cause, 2021.05.19, p. 3].
Judge Kornmann says that Deputy Marshal Houghtaling’s claim that their policy requires two deputies be present with defendants is pretextual hogwash contradicted by past practice:
I do not believe there is or ever was any policy that is consistently followed in Aberdeen by which at least two deputy marshals are in the courtroom for each hearing. A number of years ago, the then Chief Deputy Marshal wanted to hold all hearings, including criminal cases, with only court security officers present. I told him that I wanted at least one deputy in the courtroom for all hearings. They followed that policy for many years. It appears to be a subterfuge to now claim that two deputies must be in the courtroom. If there is or was such a policy, it has rarely been followed here [Kornmann, Order to Show Cause, 2021.05.19, p. 6].
Judge Kornmann also pointedly questions whether the Marshals really give a darn about the safety of the people in the courtroom:
I had always thought that the principle responsibilities [sic] 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 [Kornmann, Order to Show Cause, 2021.05.19, pp.6–7].
The Marshals dispute Judge Lange and Kornmann’s citation of Administrative Office support for their vaccine requirement. In a May 10 response to Judge Lange, Chief of Staff Kilgallon says the AO only encourages vaccines and specifically discourages mandates or punishments for failure to vaccinate:
While the Marshals Service strongly encourages our DUSMs and all other employees to be vaccinated, we are not mandating it. This is consistent with other federal employers, as we are not aware of any other federal (or State) department or agency currently requiring its employees to take the COVID-19 vaccine. This is also consistent with the guidance provided by the Administrative Office of the U.S. Courts (“the AO”), which recommends that employees be encouraged to receive the vaccine, but that vaccinations not be mandated or required as a basis for excluding employees from the workplace. The AO has also stated that “any adverse action for violating a vaccination mandate, directive or policy is implicitly an unauthorized and impermissible mandate” [Chief of Staff John Kilgallon, Office of the Director, U.S. Marshals Service, letter to Judge Roberto Lange, 2021.05.10].
News reports and a Montana federal court order subsequent to the Marshals May 10 mutiny indicate the Administrative Office of the U.S. Courts is indeed not recommending vaccine requirements; however, the U.S. Court’s own May 27 blog post makes no such definitive statement and suggests vaccine requirements are up to the district courts. In his Order to Show Cause, Judge Kornmann indicates he is “fully aware of the apparently upcoming advice from the administrative office of the United Courts. I respectfully disagree with their advice.” Judge Kornmann maintains that he, not the Marshals, have the authority to establish rules to protect the people in his courtroom and that by “kidnaping” defendants and preventing them from appearing at their scheduled hearings, the Marshals “interfered with the administration of justice… without regard to the statutory and constitutional rights of the criminal defendants, the busy schedules of attorneys, and the disruption of judicial staff.”
Judge Kornmann has ordered Kilgallon, Mosteller, and Houghtaling to appear in his courtroom on June 14 to answer for their contempt of his court.
p.s.: Interestingly, while Marshal Mosteller claimed that inquiring into employees’ coronavirus vaccination status is “problematic,” Chief of Staff Kilgallon said in his May 10 letter that “approximately 52% of our Deputy U.S. Marshals nationwide are fully vaccinated. In the District of South Dakota approximately 44% of our Deputy U.S. Marshals are fully vaccinated.”
pp.s.: On May 21, Chief Judge Lange issued Standing Order 21-6 exempting fully vaccinated individuals from wearing a mask in common areas of federal courthouses in South Dakota. “Anyone who falsely claims to be fully vaccinated and goes without a mask may be subject to contempt of court proceedings for violating this order.” SO 21-6 also says “A gaiter, bandana, or handkerchief does not qualify as a mask….”
ppp.s.: On May 25, Judge Kornmann issued Standing Order 21-7, a supplement to Judge Lange’s SO 21-6, requiring anyone not fully vaccinated against coronavirus or whose vaccination status is unknown to wear an N-95 mask or a double mask and stay six feet away from all other persons at all times inside the courthouse. SO 21-7 also forbids any such individual from entering “the chambers of the court, library rooms, office of the magistrate, office of the judicial assistant, office of the law clerks, the bathroom adjacent to the copy room, the 4th floor jury room, or the copy room.”