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Full text of "The third branch"

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Courts 



Vol. 30 
Number 1 
January 1998 




Special Issue 



The 1997 Year-End 
Report ol the Federal 
Judiciary 



Overview 

As I review the state of the Judi- 
ciary this year and compare it with the 
1 1 previous years I have served as 
Chief Justice, I am impressed by the 
degree to which our relations with 
Congress have dominated 1997. Con- 
gressional responses and initiatives on 
judicial issues ranging from funding to 
salaries, and 
from federal 
jurisdiction 
to judicial 
vacancies, 
all have had 
a significant 
influence on 
the Judi- 
ciary 
over 
the 




past year. The results have been 
mixed — which is scarcely surprising — 
and therefore we will face some of the 
same challenges in 1998 that con- 
fronted us in 1997. Despite the work 
that remains to be done, I am encour- 
aged by the Judiciary's ability to per- 
form its essential role in our constitu- 
tional structure of government. 



Funding, Salaries, Jurisdictinn, and Vacancies 

I first would like to express my 
gratitude to Congress for its financial 
support of the Judiciary. In a time of 
scarce resources, Congress responded 
favorably to the careful financial plan 
adopted by the Executive Committee 
of the Judicial Conference of the 
United States. These moneys will be 
used wisely and economically. The Ju- 
diciary supports fully the national 
goal of eliminating the budget deficit 
and has instituted a formal process to 
identify and implement initiatives to 
reduce or avoid costs. 

I also wish to extend the thanks of 
the federal judges to Congress for the 
2.3 percent Employment Cost Index 
("ECI") adjustment that it approved to 
take effect on January 1, 1998, as well 
as my appreciation to the members of 
the Judicial Conference of the United 
States, the Federal Judges Association, 
the Magistrate Judges Association, the 
National Conference of Bankruptcy 
Judges, the Federal Bar Asso- 
ciation, the American Bar 
Association, judges, the 
staff of the Administrative 
Office of the United States 
Courts, and various other 
bar groups for all the time 



and energy they invested this year on 
the issue of judicial compensation. In 
particular, Ralph Mecham and his leg- 
islative staff, and Judge Barefoot Sand- 
ers and the members of his Committee 
on the Judicial Branch, deserve special 
recognition. 

In my last Year-End Report, I noted 
that Congress had not granted federal 
judges an ECI adjustment in four 
years, thereby reducing judges' sala- 
ries in constant dollars by 8.6 percent. 
During 1997, the aforementioned 
groups and organizations worked 
very hard to rectify the situation. They 
urged Congress both to repeal Section 
140 of the Continuing Resolution Act 
of December 15, 1981, Public Law 97- 
92 ("Section 140"), which provides 
that no salary increases shall be 
granted to federal judges without ex- 
press legislative approval, and to pro- 
vide a catch-up pay adjustment equal 
to the ECI adjustments not granted 
since 1993. 

Although we are pleased that Con- 
gress approved the 2.3 percent adjust- 
ment, it is obviously not an enduring 
solution to a problem that continues to 
endanger the morale and quality of the 
federal Judiciary. In general, all the ad- 
justment does (assuming that inflation 
in 1997 is about 2.3 percent) is to en- 
sure that federal judges are, in abso- 
lute terms, no worse off than they 
were at the end of last year. It prevents 
further deterioration of "real" judicial 
salaries. But it does not redress previ- 
ous loss, or the disparity I noted last 
year between federal judicial salaries 
and the salaries of the profession from 
which federal judges are recruited. 

See Report on page 2 



Report continued from page 1 

The federal Judiciary must shortly 
go back to Congress to seek the relief 
it needs and deserves. Only then will 
judges who make a lifetime commit- 
ment to public service be able to plan 
their financial futures based on rea- 
sonable expectations of compensation. 

With regard to the non-monetary 
problems currently troubling the fed- 
eral Judiciary, most are directly re- 
lated to its large and expanding 
workload. Fiscal Year 1997 saw courts 
of appeals and bankruptcy filings at 
their highest rates in history. District 
courts also were very busy. In addi- 
tion to a small increase in civil filings, 
there was a 5 percent increase in crimi- 
nal cases in 1997, producing the larg- 
est federal criminal caseload in 60 
years. Many factors have produced 
this upward spiral, including laws 
enacted by Congress that expand fed- 
eral jurisdiction over crimes involving 
drugs and firearms, Supreme Court 
decisions, large class-action litigation, 
and changes in executive prosecution 
policies. Unless steps are taken to stop 
or reverse this trend, either the de- 
mands placed on the federal Judiciary 
will eventually outstrip its resources, 
or the Judiciary will become so large 
that it will lose its traditional character 
as a distinctive judicial forum of lim- 
ited jurisdiction. 

Since December 1990, the last time 
Congress created any new judgeships, 
the number of cases filed in courts of 
appeals has grown by 21 percent and 
those filed in district courts have in- 
creased by 24 percent. Largely because 
of this expanding caseload, in March 
1997 the Judicial Conference of the 
United States recommended to Con- 
gress the creation of 12 permanent 
court of appeals judgeships and five 
temporary court of appeals judgeships 
as well as 24 permanent and 12 tempo- 
rary district court judgeships. After 
several months of deliberation, Con- 
gress extended 11 existing temporary 
judgeships for an additional five 
years — for which the Judiciary is 
grateful — but did not create any addi- 
tional judgeships. A judgeship was 
added to one district by taking another 
away from a different district, but that 
was as far as Congress was willing to 

go- 



In general, Congress has declined to 
eliminate the disparity between re- 
sources and workload in the federal 
Judiciary by an expansion of the num- 
ber of judges. There have been in- 
stances, however, in which Congress 
wisely has acted to reduce this dispar- 
ity by enacting laws that in effect de- 
crease the number of potential filings 
in federal court. In 1996, Congress 
enacted the Antiterrorism and Effec- 
tive Death Penalty Act, which stream- 
lined habeas corpus procedures for 
both state and federal prisoners, and 
the Prison Litigation Reform Act 
(PLRA), which did the same for pris- 
oners' civil rights actions. 

Although it is too early to make 
definitive judgments concerning the 
impact these laws will have on pris- 
oner suits, the evidence thus far 
strongly suggests that they will have 
a positive effect. The one-year statute 
of limitations for both state and fed- 
eral prisoner applications for writs of 
habeas corpus produced a sharp rise 
in applications between February and 
April 1997, but then they dropped off 
sharply. As of June 1997, the number 
of habeas corpus applications has 
fallen well below the average number 
of monthly filings during the 15 
months prior to the law's enactment 
in April of 1996. PLRA achieved a 
similar result. Monthly civil rights 
filings by prisoners decreased 46 
percent from April 1996 to February 
1997. 

With the limited degree of hind- 
sight available to us— and keeping in 
mind that there are many variables 
that could affect the future rate of 
prisoner filings in federal court— the 
Effective Death Penalty Act and the 
PLRA appear to be promising ex- 
amples of how Congress can reduce 
the disparity between resources and 
workload in the federal Judiciary 
without endangering its distinctive 
character. Unfortunately, Congress' 
efforts to enact legislation of this type 
have been sporadic and inconsistent. I 
therefore call on Congress to consider 
legislative proposals that would re- 
duce the jurisdiction of federal courts. 
For many years, diversity of citizen- 
ship cases have been identified as one 
such area in which Congress could 
enact some very useful reforms. 



Should ( ongn-ss, conversely, • 
sider expanding the jurisdic tion of the 
federal Judiciary, it should do so cau- 
tiously and only after it has consid- 
ered all the alternatives and the inc re- 
mental impact the increase will have 
on both the need for additional judi- 
cial resources and the traditional role 
of the federal Judiciary. In particular, 
the Judicial Conference of the United 
States has raised concerns about legis- 
lation pending in Congress to "feder- 
alize" certain juvenile crimes, main- 
taining its long-standing position that 
federal prosecutions should be limited 
to those offenses that cannot or should 
not be prosecuted in state courts. 

This desire to federalize new crimes 
or civil causes shows that the federal 
Judiciary has become a victim of its 
own success. The congressional desire 
to federalize stems from the sense that 
the federal courts, by and large, render 
a brand of justice that is both more 
dependable and more efficient than 
that rendered by some of the state 
systems. But no small part of the suc- 
cess of the federal system — its ability 
to attract first-rate talent, for ex- 
ample — is because the federal courts 
have traditionally been courts of linv 
ited jurisdiction . If the federal system 
ends up with the same sort of pot- 
pourri of cases that state courts must 
necessarily decide, it may lose the 
special competence that now sets it 
apart from many state systems. 

If federal jurisdiction remains at its 
current level — or, worse, increases — 
judicial vacancies will aggravate the 
problem of too few judges and too 
much work. Currently, 82 of the 846 
Article III judicial offices in the federal 
Judiciary — almost one out of every 
ten — are vacant. Twenty-six of the 
vacancies have been in existence for II 
months or longer and on that basis 
constitute what are called "judicial 
emergencies." In the Court of Appeals 
for the Ninth Circuit, the percentage o 
vacancies is particularly troubling, 
with over one-third of its seats empty 
Judicial vacancies can contribute tc 
a backlog of cases, undue delays in 
civil cases, and stopgap measures to 
shift judicial personnel where they an 
most needed. Vacancies cannot remai 
at such high levels indefinitely with- 
out eroding the quality of justice that 



The Third Branch ■ January 19$ 



Report continued from page 4 
ported results from its first survey of 
public attitudes towards federal sen- 
tences. More than 1,700 citizens 
throughout the United States ex- 
pressed their opinions on crime and 
punishment as part of a study of "just 
punishment," one of the four statutory 
purposes of sentencing. Also this year, 
the Commission submitted to Con- 
gress a second report and recommenda- 
tion on revising the federal cocaine sen- 
tencing policy. It again unanimously 
recommended that the disparity in fed- 
eral penalties for powder cocaine and 
crack cocaine be reduced and sug- 
gested a range of possible options to 
accomplish this end. Another Commis- 
sion report to Congress concluded that 
"broad and inconsistent use of money 
laundering penalties" is contributing 
to substantial unwarranted disparity. 

The Commission formed an office 
of legislative and public affairs in 1997 
to communicate more effectively with 
Members of Congress, the Commis- 
sion's many customers, and the public. 
In addition, the agency inaugurated a 
series of "mini-hearings" on specific 
guideline-related topics to increase 
public input into the ongoing assess- 
ment of the Sentencing Guidelines' ef- 
fectiveness. 

The Commission produced two 
public service announcements in 1997 
to deter youth from becoming in- 
volved in drug crimes. These 30-sec- 
ond announcements, distributed to 
more than 5,000 network and cable 
television stations, received extensive 
exposure across the country. Addition- 
ally, the Commission is examining 
ways of using new technologies like 
electronic mail and document imaging 
to collect, analyze, and archive more 
efficiently the massive amounts of fed- 
eral sentencing data it receives each 
year. 



Administrative Office 
of the United States Courts 

The Administrative Office of the 
United States Courts serves the Judi- 
cial Conference of the United States 
and the federal courts in many ways. It 
collects data and analyzes statistics, 
consults with the courts about their 



needs and priorities, makes improve- 
ments in judicial administration, and 
implements and promotes Judicial 
Conference policies and programs. In 
addition, it is instrumental in the 
Judiciary's success in obtaining ad- 
equate appropriations and in commu- 
nicating the Judiciary's views to Con- 
gress on legislative matters that affect 
the operations of the Judiciary. 

Led by the Administrative Office's 
efforts, the federal Judiciary has 
achieved an impressive devolution of 
management authority and control 
away from Washington to the indi- 
vidual federal courts. The Director has 
delegated to local federal courts many 
of his statutory financial, personnel, 
procurement, and other administra- 
tive authorities. This kind of decen- 
tralization has benefited both the Judi- 
ciary and the taxpayer because it en- 
courages every court to find innova- 
tive ways to increase efficiency and 
save money. Decentralized manage- 
ment has established the Judiciary as 
an archetype for other complex public 
and private institutions, and it has 
also garnered the attention of judicial 
leaders and administrators from other 
nations. 

The key to the success of the budget 
decentralization program is national 
spending controls combined with lo- 
cal accountability and flexibility. The 
individual courts determine how to 
spend funds for staff, equipment, sup- 
plies, and services to meet their par- 
ticular needs. To enhance this pro- 
gram further, the Administrative Of- 
fice this year simplified the way it al- 
lots operating funds to the courts. 
Funds previously allocated in 40 sepa- 
rate expense categories were com- 
bined in one aggregate amount based 
on formulas developed by teams of 
statisticians, financial analysts, pro- 
gram experts, and court staff. As a re- 
sult, the paperwork burden for pre- 
paring each court's budget request 
was substantially reduced or elimi- 
nated, and the courts were assured of 
an equitable distribution of these op- 
erating funds. 

The Administrative Office is testing 
prototype electronic case file systems, 
which will enable courts to receive, 
store, and retrieve documents elec- 
tronically. Also this year, testing be- 



gan on a new state-of-the-art financial 
accounting system for the courts. Ex- 
periments demonstrated that mobile 
computing enabled probation officers 
to access information away from the 
office, allowing them to spend more 
time in the community supervising of- 
fenders. New systems for personnel 
and payroll processing, jury adminis- 
tration, and library administration are 
also in progress. An evaluation is un- 
der way to assess the practicality and 
cost-effectiveness of a variety of tech- 
nologies, such as real-time reporting, 
digital-audio recording, and evidence 
presentation devices that show prom- 
ise to facilitate courtroom procedures. 
In concert with the Federal Judicial 
Center, the Administrative Office is 
helping to develop a federal judicial 
television network that will broadcast 
educational and informational pro- 
gramming by satellite to judges and 
court employees nationwide. 



Federal Judicial Center 

The Federal Judicial Center pro- 
vides education, training, and re- 
search for the federal Judiciary. 

This summer the FJC Board ap- 
proved a strategic plan to guide the 
FJC in the years ahead. The plan rec- 
ommends some changes in the FJC's 
research operations and discontinu- 
ance of its occasional support of auto- 
mation innovations in the courts. It 
also responds to Congress' interest in 
reducing government spending on 
travel by directing the FJC to continue 
its emphasis on satellite broadcasting 
and other forms of "distance learn- 
ing." This year, for example, the FJC 
introduced a newsletter series and a 
satellite broadcast that will help pro- 
bation officers deal with the problems 
presented by particularly difficult of- 
fenders, such as members of street or 
prison gangs. 

Almost 85 percent of the 34,000 ju- 
dicial branch participants in FJC pro- 
grams received training in their own 
courts. Next year FJC broadcasts will 
reach even larger audiences through 
the federal judicial television network 
described in the previous section. I 
also participated in a satellite broad- 
cast by introducing the FJC's July 1997 4 



5 



The Third Branch m January 1998 



In addition, criminal cases in- 
creased 5 percent, civil filings 1 per- 
cent, and appeals filings 1 percent. 

This 5 percent increase in criminal 
cases brought the total number of 
criminal cases to 50,363, the highest 
level in over 60 years. This year's in- 
crease was due primarily to filings re- 
lated to drug and immigration cases in 
the southwestern border districts of 
the United States. Drug case filings 
rose 13 percent to 13,656 and immigra- 
tion case filings increased 21 percent 
to 6,677. Filings of weapons and fire- 
arms cases and drunk driving and 
traffic violations remained stable. 

The number of civil filings in the 
U.S. district courts was 272,027. The 
small increase in filings was attribut- 
able primarily to increases in actions 
involving the United States as a plain- 
tiff or defendant and in filings pertain- 
ing to federal question jurisdiction, 
usually in personal injury /product li- 
ability cases. U.S. plaintiff or defen- 
dant actions increased 23 percent in 
1997, rising from 48,755 to 60,004 
cases. U.S. plaintiff cases increased 35 
percent, primarily because filings in- 
volving contract actions almost 
doubled. The influx of recoveries of 
overpayments related to defaulted stu- 
dent loans grew from 4,460 to 9,043 
and was the key reason for the overall 
increase in contract actions. The num- 
ber of filings with the U.S. as defen- 
dant also rose, primarily because of a 
46 percent jump in social security fil- 
ings. Social security disability insur- 
ance cases increased 47 percent, rising 
by more than 2,400 cases, largely as 
the result of the Social Security 
Administration's processing of a large 
backlog of cases. Prisoner petitions 
dropped 8 percent this year primarily 
because of a 31 percent drop in civil 
rights petitions filed by prisoners. This 
reduction stemmed from the PLRA, 
which, among other provisions, places 
limitations on how prisoner petitions 
may be filed. This drop nearly offsets 
the other increases in the civil 
caseload in the district courts, result- 
ing in the small percentage increase in 
filing overall. The drop in prisoner pe- 
titions contributed to a 2 percent de- 
crease in total federal question litiga- 
tion. However, a 90 percent rise in per- 
sonal injury/product liability cases re- 



lated to breast implants contributed to 
the overall national rise. Civil filings 
in the Eastern District of Michigan 
skyrocketed by more than 10,000 cases 
as a result of the recent decision in- 
volving Dow Chemical in the Sixth 
Circuit Court of Appeals. This deci- 
sion led to the filing of breast implant 
cases in Eastern Michigan, where 
Chapter 11 federal bankruptcy pro- 
ceedings involving the Dow Corning 
Corporation are pending. 

Appeals filed in the 12 regional 
courts of appeals set a record level of 
more than 52,300. The overall increase 
resulted from administrative agency 
appeals and original proceedings, 
which rose 56 percent and 16 percent, 
respectively. Civil, criminal, and bank- 
ruptcy appeals declined, falling 3 per- 
cent, 2 percent, and 19 percent, respec- 
tively. 



The Supreme Court of the United States- 
Caseload Statistics 

The total number of case filings in 
the Supreme Court increased from 
6,597 in the previous term to 6,634 in 
the 1996 Term— an increase of slightly 
more than 0.5 percent. Filings in the 
Court's in forma pauperis docket in- 
creased from 4,500 to 4,578— a 1.7 per- 
cent rise. The decline in the Court's 
paid docket was only 40 cases, from 
2,095 to 2,055— a 1.9 percent decrease. 
During the 1996 Term, 90 cases were 
argued and 80 signed opinions were 
issued, compared to 90 cases argued 
and 75 opinions issued in the 1995 
Term. No cases from the 1996 Term 
were scheduled for re-argument in the 
1997 Term. 



United States Sentencing Commission 

The Sentencing Commission, 
like the federal Judiciary, suffers from 
serious delays in the appointment pro- 
cess. The terms of Vice Chairman 
Michael Gelacak and Commissioners 
Michael Goldsmith and Judge Deanell 
R. Tacha expired in late 1997. These 
commissioners will continue to serve 
for up to one year or until new ap- 
pointments are confirmed, but their 
vacancies must be considered in the 



THF- 



THIRD 

BRANCH 



Published monthly by the 
Administrative Office of the US ' 
Office of Public Affaire 

One Columbus Circle, N.E. 

Washington, DC. 20544 

(202) 273-0107 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE DIRECTOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Linda L. Stanton 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address. 



light of three previous vacancies on 
the seven-member panel. The long and 
the short of the matter is that for the 
Commission to function properly six 
appointments to vacancies are needed. 
Two of the positions have been vacant 
since October 1995, one of the posi- 
tions has been vacant since May 1997, 
and the three remaining positions 
have been vacant since October 1997. 
The Judicial Conference of the United 
States acted promptly in making its 
recommendations to the President 
with regard to the judicial vacancies 
on the Commission. But the President 
has simply not made any nominations 
to fill these vacancies. The function of 
the Sentencing Commission may not 
be well known to the general public, 
but it serves a vitally important func- 
tion in the enforcement of the criminal 
law in federal courts. Its statutory 
function is seriously hindered by this 
inaction. 

Sentencing-related research contin- 
ued as a top agency focus in 1997. 
Early in the year, the Commission re- 
See Report on page 5 

The Third Brunch m January 1998 






traditionally has been associated with 
the federal judiciary. Fortunately for 
the Judiciary, a dependable corps of 
senior judges has contributed signifi- 
cantly to easing the impact of unfilled 
judgeships. 

The institutions that have the con- 
stitutionally assigned powers of nomi- 
nating and confirming judicial nomi- 
nees bear some of the responsibility 
for the current situation, but structural 
aspects of the appointment process 
also contribute to the existing high 
level of vacancies. For example, a 
larger Judiciary increases the average 
number of retirements per year and 
the corresponding number of nomi- 
nees. The additional burdens placed 
on the appointment process by such 
an increase may slow it down. An ap- 
pointment process that might work 
well to fill the vacancies of a 700-mem- 
ber Judiciary might struggle with a Ju- 
diciary of 800 or 850 members. Ac- 
cordingly, increasing the size of the 
federal Judiciary so that it can handle 
expanded workloads might have the 
unintended effect of increasing the va- 
cancy rate, perhaps leaving unaffected 



Senate Judiciary Committee vote or a 
final floor vote. The Senate confirmed 
only 17 judges in 1996 and 36 in 1997, 
well under the 101 judges it confirmed 
during 1994. 

The Senate is, of course, very much 
a part of the appointment process for 
any Article III judge. One nominated 
by the President is not "appointed" 
until confirmed by the Senate. The 
Senate is surely under no obligation to 
confirm any particular nominee, but 
after the necessary time for inquiry it 
should vote him up or vote him down. 
In the latter case, the President can 
then send up another nominee. 



Special Commissions and Appointments 

During 1997, two measures to 
study important issues pertaining to 
the federal Judiciary were initiated. 
This past fall, in another example of 
the way the three branches of our gov- 
ernment work together, Congress 
passed a bill creating a Commission 
on Structural Alternatives for the Fed- 
eral Courts of Appeals which the 



"Congressional responses and initiatives on judicial is- 
sues ranging from funding to salaries, and from federal 
jurisdiction to judicial vacancies, all have had a signifi- 
cant influence on the Judiciary over the past year. The 
results have been mixed — which is scarcely surpris- 
ing — and therefore we will face some of the same chal- 
lenges in 1998 that confronted us in 1997." 



the gap between resources and 
workload that motivated the initial in- 
crease in the number of judges. This 
ironic result strongly supports the 
common-sense conclusion that, in this 
country, a bigger federal Judiciary is 
not necessarily a part of a solution for 
every public-policy question. 

Whatever the size of the federal Ju- 
diciary, the President should nominate 
candidates with reasonable prompt- 
ness, and the Senate should act within 
a reasonable time to confirm or reject 
them. Some current nominees have 
been waiting a considerable time for a 



President signed into law on Novem- 
ber 26, 1997. This Commission will 
study the structure and alignment of 
the nation's court of appeals system, 
particularly the Ninth Circuit, and re- 
port within 12 months its findings to 
the President and Congress. In accor- 
dance with the provisions of this law, I 
appointed to this Commission Retired 
Justice Byron R. White; U.S. Circuit 
Judge Gilbert S. Merritt of the U.S. 
Court of Appeals for the Sixth Circuit; 
U.S. Circuit Judge Pamela Ann Rymer 
of the U.S. Court of Appeals for the 
Ninth Circuit; U.S. District Judge Will- 



iam D. Browning of Arizona; and N. 
Lee Cooper, former President of the 
American Bar Association, of Birming- 
ham, Alabama. 

The second effort to study issues of 
importance to the federal Judiciary 
was generated within the Third 
Branch. In July of 1997, the Federal Ju- 
dicial Center requested the Executive 
Committee of the Judicial Conference 
to consider and recommend that the 
Judicial Conference concur in the FJC's 
recently adopted strategic plan. Be- 
cause the strategic plan at points 
would affect the Administrative Office 
of the United States Courts, the Execu- 
tive Committee recommended that I 
appoint an Ad Hoc Committee of the 
Judicial Conference to study the merits 
of the motions and make a report and 
recommendation to the Conference for 
its consideration in March 1998. The 
Conference approved the Executive 
Committee's recommendation on Sep- 
tember 23, 1997, and on October 20, 
1997, 1 appointed Judge Wm. Terrell 
Hodges as Chair of the Ad Hoc Com- 
mittee and Judges William H. Barbour, 
Jr., Boyce F. Martin, Jr., Robert L. 
Miller, Jr., and Stephanie Kulp 
Seymour as members. 



The Year In Review 

The Federal Courts' Caseload 

In 1997, the caseload of U.S. bank- 
ruptcy courts soared to a record level 
for the second consecutive year, climb- 
ing 23 percent. More than 1,350,000 
petitions were filed in Fiscal Year 
1997, easily topping the previous 
record of approximately 1,111,000 fil- 
ings recorded in Fiscal Year 1996. Fil- 
ings under Chapters 7 and 13 were re- 
sponsible for the increase, with the 
overall jump in filings emanating pre- 
dominantly from non-business peti- 
tions. Chapter 7 filings, which ac- 
counted for more than 70 percent of all 
bankruptcy filings, rose 26 percent. 
Chapter 13 filings, which constituted 
29 percent of all bankruptcy filings, in- 
creased 18 percent. Chapter 11 filings, 
which amounted to less than 1 percent 
of all bankruptcy filings, dropped 11 
percent. Chapter 12 filings, which 
equalled less than 0.1 percent of all * 

bankruptcy filings, declined 12 percent. * 






The Third Branch ■ January 1998 



review of major decisions in the Su- 
preme Court's 1996 Term. 

Among its research products this 
year, the FJC provided the Judicial 
Conference's Civil Rules Committee 
an interesting analysis of the effect of 
"pretrial disclosure" rules that the 
Conference adopted in 1993 to reduce 
litigation costs and delays. These rules 
allow courts to direct attorneys to dis- 
close pretrial materials to opponents 
rather than requiring them to ferret 
out each other's materials through tra- 
ditional discovery. Although a major- 
ity of attorneys surveyed by the FJC 
thought "disclosure" made little dif- 
ference, those who perceived an ef- 
fect — a reduction in cost and delay, 
and an increase in fairness — favored 
its adoption in all federal courts. 

FJC research assisted other Judicial 
Conference committees. For example, 
its review of alternative dispute reso- 
lution programs in "demonstration 
districts" under the Civil Justice Re- 
form Act provided a view of the effi- 
cacy of these programs different from 
one that emerged from a separate 
study of the Act's pilot districts. And 
the Judicial Conference this year ap- 
proved a "risk prediction index" that 



the FJC developed to help probation 
officers determine the likelihood that 
an offender may commit another 
crime and tailor supervision plans ac- 
cordingly. Within three months of the 
Conference's approval of the new 
"RPI," the FJC produced a multi-me- 
dia training plan for probation offices. 

These activities demonstrate the 
value of a separate research and edu- 
cation center within the judicial 
branch to provide policymakers and 
judges fresh perspectives on the vex- 
ing issues the courts confront in adapt- 
ing procedures for their improved 
management. 



In Memoriam 

The Judiciary and the country lost a 
dear friend and dedicated public ser- 
vant in 1997. Justice William J. 
Brennan, Jr., passed away on July 24, 
1997. Justice Brennan served on the 
Supreme Court of the United States for 
33 years. In that capacity, he has left 
his mark on many important areas of 
American constitutional law as well as 
on the lives of those who had the 
privilege of serving with him. He was 



a warm hearted i olleague who will be 
missed by all who knew him. 



Conclusion 

There are many reasons for tho 
us who serve in the Judiciary to take 
pride in our accomplishments in 1997. 
It was a year in which a Judiciary com- 
posed of fewer judges took on an in- 
creased workload. We are all indebted 
to the senior judges in our country 
who have contributed greatly to meet- 
ing the demands placed on the Judi- 
ciary. The American public continues 
to hold the Judiciary in high regard. 
The American Judiciary continues to 
command respect abroad. Representa- 
tives of other judicial systems fre- 
quently visit our courts, and from my 
conversations with them it is clear that 
there is international recognition of an 
able, independent federal Judiciary in 
this country. Let us strive to uphold 
this splendid tradition as we go for- 
ward toward the millennium. 



J/ltiut^ 4/U<^A 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



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Congress Opens Second Session 
with Judiciary Business 



The second session of the 105th 
Congress began in late January 
with a great deal of focus on a 
continuing item of business from 
the first session — judicial nomina- 
tions and confirmations. Following 
the Chief Justice's year-end mes- 
sage warning that high levels of 
vacancies would erode the quality 
of justice, members of Congress 
and the media turned their atten- 
tion to the issue. When Congress 
reconvened on January 27, the 
President sent 12 judicial nomina- 
tions for consideration. The Senate 
voted to confirm four pending 
Article III judgeship nominees 
within a week. The Senate Judi- 
ciary Committee also held hear- 
ings for five nominees in the first 
week of February. 

Meanwhile, look for resolu- 
tion — or at least action — in the 
second session on some of the key 
bills of interest to the Judiciary 
introduced in the first session. 

The Judicial Reform Act of 1997, 
H.R. 1252, which was initiated as a 
congressional response to so-called 



judicial activism, is expected to be 
considered by the full House 
Judiciary Committee early in the 
second session. Last session, the 
Judiciary made its opposition 
known to several of the bill's 
provisions in letters to committee 
members and in testimony by 
Judicial Conference representa- 
tives at hearings. One provision 
that would provide that a three- 
judge court hear applications for 
injunctions regarding laws 
adopted by state-wide referenda 
originally was introduced by 
Judiciary Committee member 
Representative Sonny Bono (R- 
CA), who died in January. Other 
provisions would allow "peremp- 
tory challenges" of judges in civil 
cases, and allow transfer for 
resolution of complaints of judicial 
misconduct to a circuit other than 
that where the complained-against 
judge sits. 

Representatives Howard Coble 
(R-NC), chair of the House Judi- 

See Second Session on page 3 



Newsletter 
of the 

Federal 
Courts 



Vol. 30 
Number 2 
February 1998 



c-//3A/4_v/ 





ll\l9lflF Re P ort on Resources Sent to Congress 

IIUUIUL Win j udiciary Computers See the Year 2000? 
Guam Court Weathers Typhoon Paka 



Retired Supreme Court Justice 
Byron R. Wliite 

Members Named 
to Commission 

The five members of the Com- 
mission on Structural Alternatives 
for the Federal Courts of Appeals 
have been appointed by Chief 
Justice William H. Rehnquist. The 
members are retired Supreme Court 
Justice Byron R. White, Judge 
Gilbert S. Merritt (6th Cir.), Judge 
Pamela Ann Rymer (9th Cir.), Judge 
William D. Browning (D. Ariz.), and 
N. Lee Cooper, Esq., of Birming- 
ham, Alabama. 

At an organizational executive 
session in mid-January, the commis- 
sion elected White as chair and 
Cooper as vice chair. As authorized 
by statute, the commission ap- 

See Commission on page 2 




Judge Gilbert S. Merritt (6th Cir) 





Judge Pamela Ann Rymer (9th Cir.) 




Judge William D. Browning (D. Ariz.) 



Commission continued from page 1 
pointed Daniel J. Meador, the James 
Monroe Professor of Law Emeritus at 
the University of Virginia, as Execu- 
tive Director. The commission expects 
to hold public hearings on future 
dates yet to be determined. 

Congress created the commission 
in November 1997 with the enactment 
of the Commerce, Justice, State, the 
Judiciary, and Related Agencies 
Appropriations Act of 1998. The 
statute creating the commission 
represents a compromise between the 
actions of the House, which had 
approved a larger, longer-term 
commission, and the Senate, which 
had passed a bill to split the Ninth 
Circuit. 

Congress has directed the commis- 
sion to study the present division of 
the United States into several judicial 
circuits as well as the structure and 
alignment of the federal court of 
appeals system, with particular 
reference to the Ninth Circuit. The 
commission is required to make 
recommendations for "such changes 
in circuit boundaries or structure as 
may be appropriate for the expedi- 
tious and effective disposition of the 
caseload of the Federal Courts of 



2 



Appeals, consistent with fundamental 
concepts of fairness and due process." 
The commission's report is to be 
submitted to the President and 
Congress by December 19, 1998. 

White served as an associate justice 
of the Supreme Court of the United 
States from 1962 until he retired in 
1993. Merritt has served as the chief 
judge of the Sixth Circuit and as chair 
of the Executive Committee of the 
Judicial Conference. Rymer served as 
a district judge in the Central District 
of California before being appointed 



N. Lee Cooper, vice-chair 

to the Ninth Circuit. Browning has 
served as chief judge of the District 
Court for the District of Arizona and 
as a member of the Judicial Confer- 
ence. Cooper is the immediate past 
president of the American Bar Asso- 
ciation (1996-1997) and is a partner in 
the law firm of Maynard, Cooper & 
Gale in Birmingham, Alabama. 

An office for the commission has 
been established in the Thurgood 
Marshall Federal Judiciary Building, 
One Columbus Circle, N.E., Washing 
ton, D.C. 20544. 



Lawsuit Seeks to Restore COLAs 



Twenty U.S. court of appeals and 
district court judges have filed a 
class action suit in the U.S. District 
Court for the District of Columbia 
(Williams v. United States) seeking to 
restore cost-of-living adjustments 
(COLAs) denied to the Judiciary 
from 1994 to 1997. The lawsuit 
claims congressional denial of 
annual COLAs provided under the 
Ethics Reform Act of 1989, coupled 
with inflation, have led to an uncon- 
stitutional erosion of judicial com- 
pensation. The constitutional claim, 



according to the lawsuit, is based on 
Article III, section 1, which provides 
that a judge's compensation may not 
be reduced. 

Neither the Judicial Conference 
nor any of its committees is involved 
with or has endorsed this litigation, 
and, historically, the Conference 
does not take positions on litigation. 
The Conference supports annual 
and automatic cost-of-living adjust- 
ments for U.S. judges, members of 
Congress, and top executive branch 
officials. 



The Third Branch ■ I rhntury 1998 






Second Session continued from page I 
ciary Subcommittee on Courts and 
Intellectual Property, and Ranking 
Minority Member Barney Frank 
(D-MA) are expected to introduce 
a new version of H.R. 2294, the 
Federal Courts Improvement Act 
af 1997. Early consideration of the 
bill is anticipated. 

Consideration of proposals 
addressing victims' rights may 
sccur early in the session, and the 
[udiciary will be watching closely 
:o see if Congress pursues the 
ronstitutional amendment or the 
statutory approach. If action is 
:aken on victims' rights, the 
udiciary prefers a statutory 
ipproach. 

The Senate is likely to take up a 
proposed juvenile crime bill, 
perhaps early in the session. In 
December, Administrative Office 
Director Leonidas Ralph Mecham 
vrote to congressional leaders on 
?ehalf of the Judicial Conference 
expressing the Conference's 
:oncerns with the bill, S. 10, 
ncluding the growing trend to 
ederalize offenses traditionally 
vithin state criminal justice 
ystems. At its September 1997 
.ession, the Judicial Conference 
iffirmed that its long-standing 
)osition that federal prosecutions 
hould be limited to those offenses 
hat cannot or should not be 
>rosecuted in state courts is 
>articularly applicable to the 
>rosecution of juveniles. The 
-louse passed its juvenile crime 
•ill in the first session. 

The Senate Committee on 
Veterans Affairs is expected to 
onsider the Veterans Employment 
)pportunities Act of 1997, S. 1021. 
in identical bill, H.R. 240, was 
>assed by the House in the last 
ession. The bill would require the 
udicial Conference to promulgate 
idicial branch regulations provid- 
ing a preference to certain veterans 
n appointments and in reductions 
n force. The Judicial Conference 



also would be required to promul- 
gate redress procedures for ag- 
grieved veterans to enforce these 
rights. A hearing likely will be 
held on the bill in March. 

The proposed litigation settle- 
ment with tobacco companies, 
which has been in the news, 
probably will generate congres- 
sional legislation to implement the 
agreement — and the Judiciary is 
watching this action closely. Three 
bills have been proposed already 
and more are likely to come. The 
Conference Committee on Federal- 
State Jurisdiction has been review- 
ing such implementing legislation 
to see how the courts would be 
affected. The chances of congres- 
sional enactment of a tobacco 
settlement this session are uncer- 
tain. 

. The Judiciary also is watching 
property rights legislation, specifi- 
cally two House bills, H.R. 1534 
and H.R. 992. 

H.R. 1534, the Private Property 
Rights Implementation Act, is 
intended generally to expedite 
access to the federal courts for 
property rights claims. It prevents 
federal courts from abstaining in 
such cases where no state law 
claim is alleged and specifies when 
government action is sufficiently 
final to make the claim ripe for 
adjudication. A related measure 
has been introduced in the Senate 
as S. 1256. The Judicial Conference 
is expressing its concerns regard- 
ing this legislation, which the 
House already has passed. 

The Tucker Act Shuffle Relief 
Act of 1997, H.R. 992, would grant 
concurrent jurisdiction over claims 
arising out of agency action 
alleged to constitute a Fifth 
Amendment taking. In such cases, 
the Court of Federal Claims would 
be given the power to grant 
equitable and declaratory relief 
when appropriate. (The Judicial 
Conference previously has ex- 
pressed concerns with a similar 



provision.) All appeals in these 
cases, whether tried in the district 
court or the Court of Federal 
Claims, would be before the U.S. 
Court of Appeals for the Federal 
Circuit. The bill has been reported 
favorably by the House Judiciary 
Committee. 

The Federal Judgeship Act of 
1997, S. 678, was introduced in the 
last session on behalf of the Judi- 
cial Conference. The bill would 
create 12 permanent and 5 tempo- 
rary court of appeals judgeships 
and 24 permanent and 12 tempo- 
rary district court judgeships, and 
give Article III status to the judge- 
ship authorized for the Common- 
wealth of the Northern Mariana 
Islands. It is uncertain whether 
action will be seen on this bill. 

In the last session, the Judicial 
Conference also asked Congress to 
create 18 new bankruptcy judge- 
ships. The House passed such 
legislation, H.R. 1596, in July 1997. 
It is expected that a similar bill to 
create bankruptcy judgeships soon 
will be introduced in the Senate. 
However, Senator Charles E. 
Grassley (R-IA), the bill's sponsor 
in the Senate, most likely will 
provide for fewer bankruptcy 
judges, and add provisions limit- 
ing bankruptcy judges' non-case 
related travel and requiring annual 
reports to Congress regarding such 
travel. 

Both the House and the Senate 
also are considering bankruptcy 
reform legislation that may require 
the AO to collect and disseminate 
more statistics on bankruptcy. 

The Judiciary could face a 
second year of no funding for the 
courthouse construction program. 
While the President's budget for 
FY99 does not include money for 
courthouse construction, the AO is 
working with members of Con- 
gress and the General Services 
Administration to find a source of 
funding to continue the program. 



The Third Branch ■ February 1998 



Second Report Sent to Congress on the Optimal Utilization ol Judicial Resources 

"The mission of the federal courts is to preserve and enhance the rule of law by providing to society a just, efficient, and 
inexpensive mechanism for resolving disputes that the Constitution and Congress have assigned to the federal courts." 

The Long Range Plan tor the Federal Courts 



The Judiciary has completed the 
second Report to Congress on the 
Optimal Utilization of Judicial Re- 
sources, an update of the first report 
issued in November 1996. The 
report highlights how the Judiciary 
has streamlined operations, in- 
creased the use of technology, and 
ensured resources are deployed 
appropriately and used efficiently. 
The publication responds to con- 
gressional appropriations commit- 
tees requests. The full report is 
available on the Judiciary's Internet 
website at www.uscourts.gov. 

Judicial Resources and Court Staff 

The Judiciary has implemented 
many policies and processes to 
ensure that judges are used effi- 
ciently and effectively. These 
include the following: 

Article III and Bankruptcy 
Judgeships 

□ Amending the biennial district 
judgeship survey to include a deter- 
mination of whether certain vacancies 
should remain unfilled or should be 
recommended for elimination. 

Zl Encouraging circuit judicial 
councils to fill vacant bankruptcy 
judgeships only when needed to 
ensure the continued effective 
operation of the bankruptcy system 
in each district. 

□ Adopting a Conference policy 
that will give greater consideration 
to the establishment of temporary 
Article III judgeships. 

Senior and Recalled Judges 

J Fostering the use of senior and 
recalled bankruptcy judges as a 



lower-cost resource for meeting 
workload demands. 

Sharing Judgeships, Shifting 
Workloads 

□ Sharing of judgeships between 
districts to address workload needs 
without adding positions. 

□ Extending the Ninth Circuit's pilot 
project designed to balance disparate 
bankruptcy caseloads within a circuit 
by transferring adversary proceedings 
in Chapter 7 cases to districts with 
lighter workloads. 

Court Personnel 

□ Continuing the practice of giving 
courts significantly less funding 
than required to hire the full 
complement of people dictated by 
the staffing formulas. 

□ Identifying business practices 
that have the potential to result in 
more efficient and effective opera- 
tions under the Methods Analysis 
Program, which has covered eight 
functional areas and yielded nearly 
600 improved work practices. 

Automation and Technology 

The Judiciary is aggressively 
exploring and implementing, through 
automation and technology, ways in 
which to lower costs and improve 
service. These efforts offer greater 
productivity, better services, swifter 
disposition of cases, and /or lower 
future year increases in non-personnel 
operating costs. Examples include 

Videoconferencing 

□ Implemented the prisoner civil 
rights videoconferencing project in 



18 district courts in 30 locations, 
with plans to expand this program 
to an additional 16 districts in 20 
additional locations by the end of 
fiscal year 1998, which reduces 
travel, reduces the security risk of 
transporting prisoners, offers 
efficient scheduling, and enhances 
access to the courts. 

Satellite Broadcasting 

□ Using nationwide satellite 
broadcasting capability to deliver 
broadcasts of five court administra- 
tion and management training 
seminars in 1997 to a viewing 
population of over 5,000, with plans 
for about 50 broadcasts in 1998. 

Video and Computer-Based Training 

□ Using computer-based programs 
to provide training more economi- 
cally, for example training for a new 
automated case-tracking module in 
probation and pretrial services 
offices was computer based, which 
reduces by approximately half the 
direct cost of a conventional instruc- 
tor-led training program. 

Electronic Case Files 

□ Exploring the costs and benefits 
involved with receiving electronic 
case filings and using electronic case 
files to reduce manual tasks, reduce 
space requirements for paper 
storage, and improve overall service 
with more up-to-date records and 
easier access. 

Electronic Public Access Programs 

□ Expanding the type and quality of 
public access services, including a 



nrd Branch ■ February 1998 






new Public Access to Court Elec- 
tronic Records (PACER) service 
allowing users to identify all cases 
throughout the country in which a 
particular party is involved. 

Electronic Courtroom Technologies 

3 Collecting information on the 
use of electronic technologies in 14 
courtrooms to assess the advan- 
tages and disadvantages of using 
the technologies. 

Telephone Interpreting 

□ Expanding the number of court 
sites offering telephone interpreting 
services to achieve greater savings. 

Automated Administrative Systems 

3 Implementing a new financial 
system; a compensation payments 
system for panel attorneys; a 
human resources management 
information system; an integrated 
library system; and a jury manage- 
ment system. 

Space and Facilities 

The Judiciary made further pro- 
gress in containing rent costs and 
in reducing its existing space 
inventory. Reductions for 1996 and 
1997 avoid $13 million in future 
annual rent costs. Other efforts 
include the following: 

Courtroom Sharing Policy 

3 Adopting a Conference policy 
requiring a courtroom for each 
active district judge, which allows 
judges to dispose of cases expedi- 
tiously and set firm trial dates that 
promote settlements. 

J Encouraging judicial councils 
to develop a policy on sharing 
:ourtrooms for senior judges and 
visiting judges. 

Facilities for Non-Resident Officers 

J Adopting Conference criteria 
ind a two-step analysis process for 



circuit judicial councils to use 
when determining whether to 
establish or maintain a facility 
without a resident judge. 

Revisions to the U.S. Courts 
Design Guide 

□ Making numerous changes in 
the United States Courts Design 
Guide that are expected to reduce 
building construction costs by 
about 5 percent for an average-size 
project, and changes and clarifica- 
tions that likely will produce more 
cost avoidances. 

Sharing Courthouse Facilities 
with States 

□ Developing specific instructions 
and procedures to help courts 
share facilities with state and local 
governments. 

Defender Services 

Containing defender services 
program costs remains a high 
priority for the Judiciary. Efforts 
include the following: 

□ Establishing the new Subcom- 
mittee on Federal Death Penalty 
Cases of the Judicial Conference 
Committee on Defender Services to 
explore issues related to the cost 
and quality of defense representa- 
tion in federal death penalty cases. 

□ Adopting a policy urging each 
circuit judicial council to establish 
a special process for the review of 
any state death penalty habeas 
corpus cases in which attorney 
compensation exceeds $100,000. 

□ Imposing minimum average 
caseload-per-attorney ratios for 
defender organizations represent- 
ing habeas petitioners, and imple- 
menting improved record-keeping 
and reporting practices for these 
organizations. 

□ Encouraging courts to require 
counsel to submit, ex parte, pro- 
posed litigation budgets for court 



approval before commencement of 
the representation and employing 
case management techniques 
commonly used in complex civil 
litigation. 

□ Completing a major defender 
services cost study in response to a 
congressional inquiry that will 
explain reasons for annual changes 
in defender services program costs 
and present a series of concrete 
recommendations for savings. 

Probation and Pretrial Services 

The Judiciary saves the govern- 
ment considerable resources 
through its home confinement 
program. In FY97, an average of 
4,700 offenders were under home 
confinement on a daily basis. If 
placed in prison, these individuals 
would have cost the government 
$69 to $106 million. The Judiciary's 
efforts also include 

□ Testing mobile computing 
applications at two court sites that 
keep officers in touch with home 
offices while providing immediate 
access to information about those 
they are supervising. 

Other Major Economy-Related Ettorts 

Other major economy-related 
efforts include work to simplify 
how the Judiciary derives and 
distributes courts' non-personnel 
resource requirements for recur- 
ring operating expenses; improved 
case processing statistics that allow 
courts to compare performance; 
and rigorous and effective audits, 
reviews, investigations, and 
assessments that in FY97 included 
over 70 court program unit re- 
views, and about 300 consulting 
and technical assistance reviews. 
The Judiciary recently completed 
an assessment of financial training 
needs throughout the courts and 
identified a number of areas where 
more training is needed. 



The Third Branch ■ February 1998 



Guam Court Weathers Typhoon Paka 



The double eye wall of Typhoon 
Paka roared across the territory of 
Guam on December 16, bringing 
torrential rains and some of the 
highest wind gusts ever recorded. 
The Federal Emergency Manage- 
ment Agency (FEMA) reported 
that flooding and winds destroyed 
at least 3,000 homes and damaged 
nearly half of the island's 31,000 
homes. A day after the typhoon 
struck, President Clinton declared 
a major disaster existed in Guam 
and ordered federal aid to supple- 
ment territory and local recovery 
efforts. 

The island "truly looks like a 
war zone," reported Mary Lou 
Michels Moran, clerk of court for 
the District of Guam, but fortu- 
nately most of the homes on Guam 
are concrete and survived, al- 
though many lost roofs and win- 
dows. Meanwhile, the federal 
courthouse facilities, primarily 
housed in the Pacific News Build- 
ing with federal defenders' offices 
in the First Hawaiian Bank Build- 
ing in downtown Agana, sustained 
mostly water and wind damage to 
ceilings, carpets, and furniture. 

Moran and Peter Wolff, in the 
federal public defender's office in 
Hawaii, were in touch with the 
Administrative Office by phone 
and e-mail almost as soon as the 
typhoon had passed. While FEMA 
and General Services Administra- 
tion teams flew to Guam, literally 
to help pick up the pieces, the 
AO's Disaster Response Team in 
Washington, D.C., tried to antici- 
pate court needs following the 
typhoon — from lost paychecks to 
repair and replacement of equip- 
ment. 

The Disaster Response Team is 
drawn from the AO's Space and 
Facilities, Human Resources, and 
Court Administration Divisions, 
and other divisions as necessary. 



William Lehman, chief of the Space 
and Facilities Division, is in charge 
of coordinating the team's work 
when disaster strikes a federal 
courthouse, in concert with the 
assistance given by other courts 
and the circuit. The AO team does 
not replace or duplicate FEMA's 
efforts, which has coordinating 
responsibility for federal agencies 
in all disasters. "The Disaster 
Response Team originated with the 
bombing of the Alfred P. Murrah 



repairs and wet-vacuuming or 
replacing water-soaked carpets. It 
is uncertain how badly furniture 
was water damaged. However, it 
was an indicator of how well the 
district court facilities fared that 
the FEMA Disaster Field Office set 
up shop in the building. Not as 
fortunate as buildings in down- 
town Agana, most court employ- 
ees' homes were without water for 
at least six days, and without 
power for two weeks to one 






The District Court for toe District 
within days oi Typhoon Paka. . . . 
completed in the coorts. 

Building in Oklahoma City," said 
Lehman, "which also damaged the 
nearby U.S. Courthouse and the 
Old U.S. Post Office Building, both 
with court facilities. At that time, 
an AO team was sent to Oklahoma 
to organize counseling for court 
employees, coordinate court 
administration activities, and 
evaluate facilities and equipment 
needs." In the months that fol- 
lowed, the team also helped 
identify funding for replacement 
computers and reimbursement for 
employees' uninsured loss of 
clothing and cars. 

Fortunately, no court employees 
or their families were injured in 
the typhoon. The district court in 
Guam was open for business 
within days of the typhoon, but on 
a half-day schedule to allow 
employees time to clean up from 
the storm. Also, generators were 
the only source of emergency 
power after Guam Power Author- 
ity was knocked out by the storm. 

Within a week, repairs had been 
completed in the courts, which 
were mostly limited to ceiling 



ot Goam was open for business 
a week repeirs had been 



month. "As you can imagine, it 
was very inconvenient and frus- 
trating," Moran said. 

With employees safe and court 
facilities functioning, the next 
order of business was to determine 
if Guam banks could handle 
electronic funds transfers for court 
employees' pay. AO Court Services 
staff checked local banks at which 
employees had direct deposit 
accounts, and, although most 
banks were running on generators, 
payments were transmitted easily. 
To be on the safe side, duplicate 
earnings statements for the last 
pay period were requested since 
mailed statements may have been 
destroyed in the typhoon. 

Meanwhile, the AO Disaster 
Response Team will continue to 
monitor the steadily improving 
situation on Guam. "I'm pleased 
that the AO can pull together its 
resources and diverse skills to 
advise and assist courts in times of 
dire need," said Lehman. "We 
want courts to know that if disas- 
ter strikes, we stand ready to help 
in whatever way possible." 



TheThird Branch ■ Februat 




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•••••>•: 



running 2000: 

banning Now for Compliance 



rhe year 2000 is a turning point for 
more than the millennium. The year 
000 can be a confusing date to a 
omputer that sees only the last two 
igits of a year. To some computers and 
Dftware programs, the year 2000 turns 
ack the clock to 1900. 

If the computer and software errors 
re not rectified, the first day back at 
/ork in the new millennium could be 
aunting. Dress warmly, because you 
tay spend some time outside in the cold 
'hile the building's security system, 
rhich is set on a timer, is corrected, 
aking the elevator? Plan on walking a 
m flights. Elevators have computer 
mers too. And once you've made it to 
le office, you have computer networks 
id data entry programs, not to mention 
icsimile machines, telephone systems, 
Dice mail systems, heating and air 
mentioning systems — all run on time 
id date programs. 

With advance planning, however, 
lis worst-case scenario will never occur, 
he Adrninistrative Office began 
Dtifying courts in 1996 that applications 
id systems may fail or produce invalid 
suits as it becomes necessary to use the 
ites of January 1, 2000, or beyond. "The 
O is working with the courts to modify 
>mputer programs and identify 
>plications that may fail, " said Gary 
xkweg, chief of the AOs Applications 
[anagement and Development 
ivision, who is overseeing the year 
100 compliance effort. 'To date, more 
an 75 percent of all court units have 
ported that they have examined their 
■ograms and either planned the 
xressary corrections or verified that no 
oblems exist." Each court unit has 
len requested to provide quarterly 
xiates on its status of year 2000 
mpliance, including estimates of the 
st to fix the problems and when the 
oblem will be corrected. 
Fixing the problem can be time- 
nsuming and costly. To date, the AO 



and the courts have spent 
approximately $1 million to 
correct the year 2000 prob- 
lem. In some programs, 
every line of code must be 
examined for date confor- 
mity. Adding to the problem 
of ensuring that all systems 
are compliant is what 
Bockweg refers to as a "great 
diversity of software" 
throughout the Judiciary. 
Most of the mission-critical 
systems are centrally developed and 
maintained, but many court units also 
use their own locally developed or 
locally modified programs, and many 
use various commercial off-the-shelf 
products. Even newly purchased 
software may be questionable, with 
some programs taking a 2-digit number, 
and others requiring a 4-digit number. 
All of it needs to be checked. 

Personal computers may not prove 
to be a problem; most older PCs should 
cycle out of the system before the year 
2000, and new replacement computers 
will be programmed to handle the year 
2000. 

As of mid-January, the AO had made 
the software for the Integrated Case 
Management System (ICMS) year 2000 
compatible and available to the courts. 
The ICMS software is in use in nearly all 
appellate and district courts and 70 
bankruptcy courts. 'We were prepared 
to use contractors to make this change, 
but instead we completed the work in- 
house, in half the estimated time and for 
significantly less than it would have cost 
to go to outside contractors," said 
Bockweg. 

Another problem recently in the news 
has been acceptance of credit cards with 
a year 2000 expiration date that comput- 
ers read as an invalid "00." Courts are 
processing credit cards with expiration 
dates in the year 2000, generally without 
incident. When one court experienced a 




problem, the AO was able to check the 
program and send a quick fix to the 
court. But not all credit card problems are 
within the Judiciary's control; they are 
actually more likely to arise from 
programs at a bank or other credit card 
transaction processing center. This 
highlights another complexity of the year 
2000 problem: even organizations that do 
a very thorough job of fixing their own 
problems cannot ensure a totally trouble- 
free transition into the year 2000. 

In addition to assistance from the AO, 
courts have a ready information source 
on the Judiciary's internal Data Commu- 
nications Network, where the Fourth 
Circuit has posted a wealth of material. 
The site includes information on UNIX 
and Unify year 2000 issues and fixes, the 
General Accounting Office's Assessment 
Guide, and testing software for personal 
computers to check for year 2000 
compatibility. 

Most executive branch agencies have 
a March 1999 deadline to fix any year 
2000 bugs. The judicial branch also is 
aiming for that deadline. 'It gives us the 
time," said Bockweg, "to fully test our 
systems and iron out any bugs that may 
still remain. I'm optimistic. The Adminis- 
trative Office should make the deadline 
on the systems it maintains, and, if all the 
courts review their programs and 
address the problem adequately, I think 
the Judiciary will avoid any major 
problems." 




•••'■■'■-'.■': 



I 









.-■-,'■ 



The Third Branch ■ February 1998 



7 



JUDICIAL MILESTONES 



Appointed: Ronald Lee Gilman, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Sixth 
Circuit, November 11. 

Appointed: Richard A. Caputo, as 

U.S. District Judge, U.S. District 
Court for the Middle District of 
Pennsylvania, December 15. 

Appointed: Frank C. Damrell, Jr., as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
California, November 28. 

Appointed: Jerome B. Friedman, as 
U.S. District Judge, U.S. District 
Court for the Eastern District of 
Virginia, November 25. 

Appointed: Dale A. Kimball, as U.S. 
District Judge, U.S. District Court for 
the District of Utah, November 24. 

Appointed: Norman K. Moon, as 

U.S. District Judge, U.S. District 
Court for the Western District of 
Virginia, November 25. 

Appointed: Charles J. Siragusa, as 
U.S. District Judge, U.S. District 
Court for the Western District of New 
York, December 15. 

Appointed: Christina A. Synder, as 
U.S. District Judge, U.S. District 
Court for the Central District of 
California, November 24. 

Appointed: Jacob P. Hart, as U.S. 

Magistrate Judge, U.S. District Court 
for the Eastern District of Pennsylva- 
nia, November 17. 

Appointed: James D. Kirk, as U.S. 
Magistrate Judge, U.S. District Court 
for the Western District of Louisiana, 
December 15. 

Appointed: Pamela Meade Sargent, 

as U.S. Magistrate Judge, U.S. District 
Court for the Western District of 
Virginia, December 15. 

Appointed: Randall L. Dunn, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Oregon, 
February 1. 



Appointed: Meredith A. Jury, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Central District of 
California, November 24. 

Appointed: Anthony John Metz, III, 

as U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Southern District 
of Indiana, November 14. 

Elevated: Judge H. Robert Mayer, to 

Chief Judge, U.S. Court of Appeals for 
the Federal Circuit, succeeding Chief 
Judge Glenn L. Archer, Jr., December 
25. 

Elevated: Judge Stanley Marcus, to 
U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Eleventh 
Circuit, November 24. 

Elevated: Judge Marjorie O. Rendell, 

to U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Third Circuit, 
November 21. 

Elevated: Judge Howard D. 
McKibben, to Chief Judge, U.S. 
District Court for the District of 
Nevada, succeeding Chief Judge Lloyd 
D. George, December 20. 

Senior Status: Judge Glenn L. Archer, 
Jr., U.S. Court of Appeals for the 
Federal Circuit, December 24. 

Senior Status: Judge W. Earl Britt, U.S. 
District Court for the Eastern District of 
North Carolina, December 7. 

Senior Status: Judge Mariana R. 
Pfaelzer, U.S. District Court for the 
Central District of California, Decem- 
ber 31. 

Resigned: Magistrate Judge Donald E. 
Beachley, U.S. District Court for the 
District of Maryland, December 28. 

Resigned: Magistrate Judge John Leo 
Wagner, U.S. District Court for the 
Northern District of Oklahoma, 
December 17. 

Deceased: Magistrate Judge Timothy 
M. Boudewyns U.S. District Court for 
the District of Rhode Island, November 
27. 



THIRD 

BRANCH 

Published monthly by the 

Administrative Office of the US ' 

Office of Public Affairs 

One Columbus Circle, N.h 

Washington, D.C. 20544 

(202)273-0107 
Our home page address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Linda L. Stanton 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
redmond@teo.uscourts.gov. 



JUDICIAL BOXSCORE 

As of February 1 , 1998 



Courts of Appeals 




Vacancies 


22 


Nominees 


15 


District Courts 




Vacancies 


60 


Nominees 


33 



Court of International Trade 

Vacancies 3 

Nominees 2 



Courts with 

"Judicial Emergencies" 



32 



The Article III judgeship vacancy report is 
available at www.uscourts.gov 



The Third Branch ■ hbruary 1998 



lew Members of the Executive Committee Appointed 



Chief Justice William H. 
ghnquist has appointed Judge 
ilph G. Thompson (W.D. Okla.) 
id Chief Judge Juan R. Torruella 
st Cir.) to the Executive Committee 

the Judicial Conference. The 
cecutive Committee's members are 
tief Judge Richard S. Arnold (8th 
r.), Judge Lloyd D. George (D. 
ev.), Chief Judge Henry A. Politz 
th Cir.), and the committee chair, 
dge Wm. Terrell Hodges (M.D. 
a.). Administrative Office Director 
•onidas Ralph Mecham is an ex- 
ficio member. One committee 
cancy exists. 

The Executive Committee is the 
mference's senior executive arm, 
ting on behalf of the Conference 
tween regular sessions on any 
atter requiring emergency action, 
addition to other duties. Among 




Judge Ralph G. Thompson (W.D. Okla.) 

its responsibilities, the Executive 
Committee reviews the jurisdiction 
of Conference committees, prepares 
proposed discussion and consent 
calendars for the meetings of the 
Conference, and establishes and 



Chief Judge Juan R. Torruella (1st Cir.) 

publishes procedures for assembling 
agendas and schedules of events in 
preparation for Conference sessions. 
The Chief Justice makes all appoint- 
ments of Judicial Conference com- 
mittee chairs and members. 



ustice Blackmun 
ebuts in 

pielberg Movie 

Who better to play a Justice of the 
preme Court than the real article? 
tired Supreme Court Justice 
irry A. Blackmun made his 
lematic debut playing the cameo 
le of Justice Joseph Story in the 
?phen Spielberg movie, Amistad. 
I Story did in the original Su- 
eme Court case, United States v. 
nistad, Blackmun delivered the 
urt's 1841 decision in the movie, 
e movie Amistad, while dealing 
th the issue of slavery, also 
jstrated the importance of judicial 
iependence. Despite the influence 
a sitting President of the United 
ites and pressure brought by a 
•eign monarch, the U.S. District 
>urt in Connecticut and the 




Supreme Court were free to make 
their decisions based entirely upon 
the merits of the case. In the photo 
above, Justice Blackmun is flanked 
by Director Stephen Spielberg 
(photo left) and actor Anthony 



Hopkins (photo right), who played 
former President John Quincy 
Adams. In 1841, the Supreme Court 
met in rooms in the Capitol Build- 
ing, which the movie set recreates. 



The Third Branch ■ Tebruary 1998 



INTERVIEW 



Assessing the Risks, Judging the Benefits oi Automation 



Judge Edward W. Nottingham was 
appointed to the District Court 
for the District of Colorado in 1989. A 
member of the Judicial Conference 
Committee on Automation and Technol- 
ogy since October 1994, he became 
committee chair in October 1997. 

Q. How would you characterize 
• the state of automation in the 
Judiciary today? 

A We are in the midst of swirling 
. change in the way the Judi- 
ciary and other institutions, public 
and private, conduct their work in 
this country. Through the Office 
Automation Program, we have made 
available some 40,000 computers to 
courts throughout the country. Over 
the past three or so years, most of 
those computers have been net- 
worked through the Data Communi- 
cations Network (DCN). The remain- 
der will be connected by the end of 
this calendar year. 

We're at a point that we need, first, 
to assess and protect what we have 
achieved so far. Second, we need to 
educate ourselves concerning the 
daily developments in technology 
and understand how technology can 
be used and abused. 

The DCN links us all together. The 
weakest link in the country is a link 
that exposes us all to potential abuse 
or alteration of information belong- 
ing to the Judiciary. We need to be 
conscious of security, not only by 
taking actions to protect the network, 
but also by exercising informed 
caution about the types of informa- 
tion that we put on the network. 



Q 



§ What role do you see your 
• committee playing? 



A I think the role the committee 
1 can play is partly an educational 



one — making sure that the Judiciary 
has places where judges can learn 
how to use technology and that judges 
are informed about the benefits and 
risks posed by technology. The 
committee also should have enough 
technical expertise to assess the new 
technology and to direct it in a way 
that's most useful to the Judiciary. 



Q 



# Have judges generally ac- 

• cepted computer technology? 



Alt's difficult to speak for all 
. judges. I think the acceptance 
varies depending upon the court and 
the judge. I can speak for myself. I 
think computers and technology 
have enormous beneficial uses. 

I think the way to deal with a fear 
of computers is to understand how 
computers can be used and abused. 
There are means of protecting 
against many of the abuses. 



Q 



Where does your own interest 
• in automation come from? 



A Like most members of the 
. committee, I fell into it. I did 
not have any formal computer 
education or take a computer course 
in college. When I was in private 
practice, the firm I was with made a 
decision to install personal comput- 
ers for lawyers who wanted them. 
I've always been fascinated by 
gadgets so I proceeded to learn how 
they operate. When I was appointed 
to the court, that interest deepened. 



Q 



. Do you have a computer in 
• your chambers? 



A: 



Yes, and I've had a home 
computer for about 12 years. 



Q 



How have emerging technolo- 
• gies, such as the Internet and 



intranet, changed the way the 
Judiciary does business? 

A An intranet is a network of 
• computers linked together by 
some connection internal to an entity 
or institution, such as the DCN. The 
Judiciary intranet, commonly called 
the J-Net, is composed solely of those 
computers on the DCN. By contrast, 
the Internet is the name used for an 
unorganized, world-wide assortment 
of computers that originated with a 
few universities and governmental 
entities. It now includes individuals, 
government institutions, and private 
institutions. An entity's site on the 
Internet is wholly insecure and can 
be reached by anybody who has a 
modem, computer, and a piece of 
software called a web browser. 

The J-Net has vast possibilities for 
changing the way the Judiciary does 
business. The most obvious is a 
change from paper transmission to 
electronic transmission. For example, 
we're in the process of placing in 
electronic form and putting on the J- 
Net the Guide to Judiciary Policies and 
Procedures. Those materials and 
supplements now go out from the AO 
to the courts in paper form. Somebody 
has to distribute those materials and 
keep them current. You're never sure 
whether you have the latest update or 
whether you put it in the right place. 
When the Guide is posted on the AO's 
J-Net site, a person at the AO will do 
the updates for everyone, saving 
paper, postage and time. Thaf s just a 
small slice of what's available on the J- 
Net. Local rules can be posted. 
Directories are posted. 

The Internet also will change the 
way the Judiciary does business. 
Electronic filing may be done by 
means of the Internet. There's also a 
considerable amount of information 
available on the Internet that's useful 
to people operating the courts. 

QAre there national guidelines 
. for accessing and using the 
Internet? 4 



10 



ird Branch ■ February 1998 



A g In September 1997, the Judicial 
• *■ • Conference adopted a policy 
hat for any personal computer 
onnected to the DCN, access to the 
iternet would be achieved only 
-trough certain gateways approved 
y the AO pursuant to procedures 
nd policies promulgated by the 
utomation committee. (A "gate- 
ray" is a point of ingress and egress 
etween the Internet and an entity's 
iternally networked computers.) 
he purpose of that policy is to make 
jre that the information on comput- 
rs networked together by the DCN 

protected by the most current, 
ichnologically feasible firewall. (A 
firewall" is a mechanism that limits 
:cess to a network from outside.) 

There also are IRM bulletins that 
ilk about proper use of the Internet 
id suggest that each court establish 
•rmal policies for use. The Judicial 
onference has adopted a resolution 
icouraging local courts to come up 
ith their own guidelines. Everybody 
tould understand that Internet use 
in be monitored, if not by the AO or 
ie gateway administrator, then at the 
sited websites. A website records 
)th the number of times somebody 
is visited and the identity of the 
sitor. Everyone should understand 
at, when they go out to visit a site on 
e Internet, they are leaving foot- 
in ts. 

-\ # How is the Judiciary safe- 
^ • guarding security of the 
diciary's electronic information? 

i ^ The National Security Agency 
a- • has indicated a willingness to 
mduct, and already has begun in 
veral courts, an assessment of the 
lequacy of computer security 
easures. With the results of that 
sessment, we expect to publicize 
ty deficiencies so that courts can 
tow their vulnerabilities. 

"\ # As a committee member, you 
^ • were very involved in the 
mmittee's electronic courtroom 




fudge Edward W. Nottingham (D. Colo.) 

initiative and now the study. Can 
you tell us more about it? 

A^ The electronic courtroom has a 
• lot of elements. It involves the 
electronic means of taking the record, 
either by digital recording or real-time 
reporting; in-court access to legal 
research databases such as WestLaw; 
and in-court access to the CHASER/ 
UNIX case-management database. 
The electronic courtroom also involves 
the use of video, document cameras, 
and CD-ROM technology for evidence 
presentation. 

The electronic courtroom study is 
an effort to determine the feasibility 
of procuring and installing these 
various electronic technologies in 
courtrooms nationwide. Courts 
taking part in the study have agreed 
to gather certain information as to 
which technology has been found 
most useful by all participants in 
courtroom proceedings. 

By June 1998 we expect to have 
preliminary results of the study. By 
December 1998 or January 1999, the 
committee expects to be able to make 
some recommendations on nation- 
wide funding for electronic court- 
rooms. 



Q 



. Given the great interest in 
• electronic filing, how is the 



Judiciary, and specifically your 
committee, moving forward on this 
initiative? 

A^ Currently, the committee has 
• provided funds for two 
prototypes operating in a total of 
nine courts, including bankruptcy 
courts and district courts. We're 
studying the problems involved in 
implementation. One of the problems 
with electronic filing is that, of all the 
initiatives that we talked about, it has 
the greatest potential for cultural 
change in the courts. It means that 
you don't go down to the court to file 
a paper. 

The committee has in place some 
technical standards for electronic 
filing. These standards will be 
refined as a result of the experience 
of these prototype courts. Eventually 
other Conference committees will 
need to make decisions concerning 
electronic filing — rules changes, for 
example. Right now, all we're doing 
is studying in a very limited way the 
possible problems involved in full 
implementation. 

Q. Are there opportunities to 
• apply electronic technologies 
to libraries? 

A^ Yes. The amount of informa- 
. tion that is available and the 
speed with which we can recover 
that information have both increased 
dramatically in the last three years or 
so. Many, if not all, courts of appeals 
place their opinions regularly on an 
electronic bulletin board or perhaps 
their website. An opinion can be 
accessed immediately. 

Most publishers are putting their 
book libraries on CD-ROM, and this 
offers another significant advantage. 
As many as eight users can be on the 
same page of a CD-ROM at the same 
time. Shared libraries are a conve- 
nient possibility, and we could 
perhaps save some money on book 
funds. The committee is going to be 
studying whether this is feasible 



m$! 






VaffiSK 



11 



The Third Brunch ■ February 1998 



Distance Learning 
Workshops Make Best Use 
ot Technology 

The Administrative Office is 
conducting a series of workshops 
on distance learning to familiarize 
employees with the new interactive 
video teletraining studio. The 
studio contains an Automated 
Instructor Presentation System 
(AIPS) for satellite broadcasts and 
videoconferencing capabilities. In 
the photo (right), a training class 
takes part in a videoconferencing 
demonstration. 

Interactive distance learning 
involves an instructor in one 
location teaching students in 
several different remote locations. 
Distance learning not only provides 
training to a wider Judiciary staff 
audience, but it also reduces travel 
time for students and the instruc- 
tor, consequently lowering the cost 
of training each student. 




Participants in the workshops 
are introduced to the training and 
communications opportunities 
opened up by the Judiciary's new 
teletraining studio with its satellite 
uplink and two-way video- 



conferencing capabilities. Partici- 
pants learn not only about the 
technology, but they also learn 
how best to apply the technology. 
Classes are kept deliberately small 
to increase hands-on training. ^^ 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

PAID 

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PERMIT NO. G-18 



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J 



THE 



THIRD 

";mANCH 



"ED 



APR 



judicial Conference Convenes Biannual Meeting 




mator Dale L. Bumpers (D-AR), Chief Judge Richard S. Arnold (8 th Cir.) and AO Director 
lonidas Ralph Mecham (photo left to right) at the Supreme Court dinner and reception 
moring Arnold for his years of service to the Judicial Conference. 



The Judicial Conference of the 
hited States received a report at its 
iannual meeting held this month on 
le crisis in courthouse construction 
tat is facing the federal Judiciary. 
ldge Norman Stahl (1st Cir.), chair 
f the Conference Committee on 



Security and Facilities, reported that 
for the second consecutive year it 
appears that there may be no funds 
available for federal courthouse 
construction. If this occurs, the costs 
of construction will increase, certain 

See Conference on page 2 



Congress Urged to Fund Courthouse Construction pg. 5 

Caseload Filings Reach Historic Highs pg. 6 

Appellate Commission Schedules Hearings pg. 12 



Newsletter 

of the 

Federal 

Courts 



Vol. 30 
Number 3 
March 1998 




Federal Judiciary 
Requests Smallest 
Budget Increase in 
20 years for FY 99 

For the third consecutive year 
the federal Judiciary has reduced 
its level of growth in both appro- 
priated funds and total obliga- 
tions and for fiscal year 1999 is 
asking for the smallest funding 
increase in 20 years, a representa- 
tive of the Judiciary told House 
and Senate budget subcommittees 
this month. 

The reduced level of request 
means "that our economy and ef- 
ficiency efforts allow us to pro- 
vide the level of service expected 
by the bench, the bar and the pub- 
lic, and ... by the Congress, but at 
a curtailed cost," said Judge John 
G. Heyburn II (W.D. Ky.), chair of 
the Judicial Conference Budget 
Committee. Heyburn testified be- 
fore the Senate Appropriations 
Subcommittee on Commerce, Jus- 
tice, State and the Judiciary and the 
House Appropriations Subcommit- 
tee on Commerce, Justice, State, the 
Judiciary, and Related Agencies. 
Also testifying at the House hear- 
ing were Leonidas Ralph Mecham, 
Director of the Administrative Office, 
Chief Judge Robert C. Broomfield 

See Budget on page 4 



Conference continued from page 1 

sites may be lost, and costly rents 
for temporary space will have to be 
paid. 

Stahl had testified the previous 
week before the House Committee 
on Transportation and Infrastruc- 
ture, Subcommittee on Public 
Buildings and Economic Develop- 
ment (See story on page 5). At the 
hearing he said, "In view of the 





Chief Judge Juan R. Torruella (V Cir.) and Chief Judge Norma H. Johnson (D. D.C) were 
among the Judicial Conference members attending the Supreme Court reception and dinner. 



Chief Judges Ralph K. Winter Jr. (2nd Cir.) 
and Henry A. Politz (5"' Cir.) attended the 
reception and dinner held at the Supreme 
Court honoring Chief Judge Richard S. 
Arnold (8 th Cir.). 



current impasse on courthouse 
construction funding, the costs of 
courthouses will needlessly increase 
unless steps are taken to ensure a 
viable future construction program." 

Many court facilities were built 
more than 50 years ago and have 
become unsafe and overcrowded. 
However, the Judiciary has little 
recourse since its role in the plan- 
ning and construction of court- 
houses is limited because it does not 
have independent authority to lease, 
construct, plan, or design space. 



Committee to Study Propriety 



May a judge presiding over a trial participate directly in 
settlement discussions with the parties? Does it make a 
difference if the trial is before a jury rather than the judge? 
And do local rules permitting the practice, have any 
bearing on the propriety of the judge's action? These and 
other similar questions will be studied by the Judicial 
Conference Committee on Codes of Conduct, whose duty 
it is to provide advice on the application of the Code of 
Conduct forjudges and other judicial branch employees. 
The Department of Justice, Civil Division, recently raised 
the issue with the Judicial Conference Executive Committee. 



In recent years the Judiciary has 
conducted a continuous review of 
design standards to identify less 
costly methods of meeting func- 
tional requirements; convened 
jointly with GSA a private sector 
panel of architects, engineers, and 
construction industry professionals 
to suggest ways of reducing con- 
struction costs; and addressed the 
impact of reducing the ratio of 
courtrooms to judges and the 
potential for closure of 
underutilized facilities. 

In other action the Conference: 

■ Agreed to support legislation 
that would reduce from 30 to 
five the number of days of 
attendance required by jurors to 
hear one case in order to be 
eligible for additional fees. The 
juror attendance fee, which is set 
by statute, was increased from 
$30 to $40 a day in 1990. While 
the fee has never been intended 
to support or replace salaries, it 
is intended to provide a minimal 
level of compensation for jurors' 
time and effort fulfilling their 
civic responsibilities. Neverthe- 
less, for some individuals and in 
particular those who serve on 



The Third Branch m Munh 1998 



lengthy trials, jury service is a 
real financial hardship. As a 
result, the Conference is endors- 
ing legislation that would 
provide that after a juror has 
served five days, the judge may 
authorize an additional $10 a 
day fee. Out of 8,427 completed 
jury trials in FY 96, 1,908 lasted 
for five days or more while only 
50 lasted longer than 30 days. 

Resolved to seek vigorously a 
cost-of-living adjustment for 
federal judges, members of 
Congress, and top officials in 
the executive branch for 1999. 
The Conference also agreed to 
continue to seek the repeal of 
Section 140 of P. L. 97-92, which 
requires special congressional 
action for judicial salaries to 
increase. Further, the Confer- 
ence announced its support for 
the revitalization of a federal 
salary-fixing entity similar to 
the former Commission on 
Executive, Legislative, and 
Judicial Salaries (known as the 
Quadrennial Commission). 

During the two decades 
leading up to the Ethics Reform 
Act of 1989, the Quadrennial 
Commission played a signifi- 
cant role in easing some of the 
problems caused by salary 
compression. With the Ethics 
Reform Act, Congress effec- 
tively scrapped the commission 
and substituted a Citizens' 
Commission consisting of six 
appointees of the three 
branches of government and 
five randomly selected citizens. 
Since the creation of the new 
commission, no money has 
been appropriated for it, and 
Congress and the President 
have never appointed their 
members. The leaders of all 
three branches of government 
received a 2.3 percent COLA in 
1998, the first such adjustment 
since January 1993. 



The following is the text of the Judicial Conference resolution 
honoring Chief Judge Richard S.Arnold 



The Judicial Conference of 
the United States notes with 
deep regret the departure from 
its ranks of our esteemed 
friend and colleague the 
Honorable Richard S. Arnold, 
Chief Judge of the U.S. Court 
of Appeals for the 8th Circuit 
and a member of this body 
since 1992. 

Recognized throughout the 
Judiciary for his gifted intel- 
lect, integrity, and statesman- 
like demeanor, Judge Arnold 
has contributed selflessly and 
immeasurably to the adminis- 
tration of the federal court 
system. From his leadership of 
the Conference's Budget 
Committee to his dedicated 
service on the Executive Commit- 
tee, he has demonstrated unwa- 
vering good judgment and has 
earned our utmost respect and 
gratitude. 

Judge Arnold is a gracious and 
warmhearted individual who does 
not hesitate to exercise his keen, 
dry wit in a manner that is always 
uplifting and constructive. He is 
an invaluable asset to the Judiciary 




and a valued friend. We will 
sorely miss him at Conference 
sessions, but look forward to his 
significant future contributions to 
the Judiciary. 

It is our pleasure to pay tribute 
to Judge Richard Arnold and to 
express our sincere appreciation 
for his friendship and for his 
countless accomplishments in the 
administration of justice. #^ 



Approved a process to be 
included in the biennial judge- 
ship surveys for determining 
when to recommend that a court 
of appeals vacancy not be filled 
or the position be eliminated. 
Given the unique nature of the 
caseloads of the U.S. Court of 
Appeals for the D.C. Circuit and 
U.S. Court of Appeals for the 
Federal Circuit, they are not part 
of the newly approved process. 
Last year the Conference 
adopted a similar approach 
regarding district court vacancies. 



Adopted a policy stating that if 
a federal judge uses a state 
facility to conduct a federal 
proceeding, the judge remains 
bound by Judicial Conference 
policies, including the policy on 
cameras in the courtroom. In 
addition, the Conference agreed 
that when a state court is using a 
federal court facility for a state 
court proceeding, Judicial 
Conference policy regarding 
cameras in court shall govern. ^ 



The Third Branch 



March 1998 



Budget continued from page I 
(D. Ariz.), a member of the Budget 
Committee, and Federal Judicial Cen- 
ter Director Judge Rya W. Zobel. 

Senate Subcommittee Chairman 
Judd Gregg (R-NH) sought 
Heyburn's views on how to hold 
down defense costs in capital cases. 

In the House hearing, Subcommit- 
tee Chairman Harold Rogers (R-KY) 
questioned the number of court secu- 
rity officers requested by the Judi- 
ciary for FY 99 and the apparent dis- 
proportionate expenditure of de- 
fender services monies by California 
district courts for habeas corpus rep- 
resentations. 

For FY 99, the Judiciary is request- 
ing $4.1 billion in obligational author- 
ity, which is 6.7 percent more than 
provided for FY 98. Of the requested 
6.7 percent increase, 5 percent is to 
fund current services and 1 .7 percent 
is to cope with the anticipated in- 
crease in workload, which is out of 
the Judiciary's hands. 

"This restrained request comes in 
spite of a growing workload being 
placed on the courts," Heyburn said. 
"With the exception of civil filings, 
which are projected to decline 
slightly, the workload estimates used 
to develop the fiscal year 1999 budget 
continue to grow." 

Heyburn described the steps the 
Judiciary is taking to achieve savings 
in staffing, defender costs, and space 
and facilities. 

Staffing: The Judiciary has imple- 
mented cost-conscious policies to ad- 
dress the need to establish or elimi- 
nate Article III, bankruptcy, and mag- 
istrate judgeships, and to appoint or 
transfer judges in those positions. To 
hold down the number of court per- 
sonnel needed, a multi-year effort is 
underway to identify business prac- 
tices that have the potential to result 
in more efficient operations. 

Space and Facilities: The Judiciary 
continues to pursue the sharing of 
courtrooms by senior judges, revi- 
sions to the U.S. Courts Design Guide 




(left to right) FjC Director Judge Rya W. Zobel, Chief judge Robert C. Broomfield <D. 
Ariz.), Judge John G. Heyburn II (W.D. Ky.), and AO Director Leonidas Ralph Mecham 
testified at the House hearing on the Judiciary's fiscal year 1999 budget. 



to reduce construction costs, the pos- 
sible closing of additional facilities 
that do not have a resident judge, and 
the implementation of a space reduc- 
tion incentive program. 

Defender Services: Last month the Ju- 
diciary transmitted to Congress a 
comprehensive analysis of the De- 
fender Services program by indepen- 
dent consultant Coopers & Lybrand, 



L.L.P. The report found that the over- 
all costs of the program have been 
skewed by a relatively new phenom- 
enon in the federal system — death 
penalty prosecutions and, in particu- 
lar, a few very expensive cases. If 
these cases are excluded, the report 
found that the average cost of the re- 
maining cases grows by a rate 
roughly equivalent to inflation. £^ 



The Fiscal Year 1999 Request 

The Judiciary's FY 99 request of $4.1 billion includes $3.2 billion in appropriated 
funds and $300 million in other funding sources such as fee collections to supple- 
ment its appropriation. 

The bulk of the Judiciary's budget request is for salaries and expenses. A total of 
$3.2 billion is requested for this activity in FY 99. Over 70 percent of the requested 
increase is needed to fund uncontrollable adjustments such as inflation and rent 
increases. The remainder is primarily to fund new magistrate judge positions and 
court support personnel to handle increases in workload. 

A total of $392 million is requested in FY 99 for the Defender Services program 
to provide representation to indigent defendants eligible under the Criminal Justice 
Act. The request includes a $5 per hour rate adjustment for private panel attorneys in 
those districts that do not receive the $75 per hour compensation rate. In many 
cases, the rates currently paid panel attorneys are an impediment to the attraction of 
qualified attorneys. 

For court security, the FY 99 request is $179 million. In addition to inflation, the 
requested increase would fund 168 additional court security officers to provide basic 
security in existing, new, and renovated facilities and would provide for cyclical 
replacement of weapons and explosives screening systems and equipment. 

For the fees of jurors, the FY 99 request is $70 million. The requested increase 
would fund inflationary adjustments and an increase in jury days. 



////■ I Inrrf Brant li 



March 1998 






Judiciary Urges Congress to Fund Courthouse Construction 



Aging and obsolete court facili- 
ies, inadequate space, and yet an- 
►ther fiscal year with no funding to 
ontinue the courthouse construc- 
ion program are creating an intoler- 
ible situation for the federal courts, 
i representative of the Judicial Con- 
erence told a House subcommittee 
his month. Judge Norman H. Stahl 
1st Cir.) appeared before the House 
Committee on Transportation and 
nfrastructure, Subcommittee on 
'ublic Buildings and Economic De- 
elopment, to express Conference 
oncerns and urge Congress to 
eprioritize the President's FY 99 
iudget submission to free funding 
or courthouse construction. Stahl is 
he chair of the Conference Commit- 
ee on Security and Facilities 

"Most existing court facilities 
vere built over 50 years ago and are 
iow seriously obsolete," Stahl testi- 
ied. "It is usually impossible to 
nodify these facilities to provide the 
dditional space needed for the in- 
reasing numbers of judges and 
taff. Moreover, many of these anti- 
[uated buildings pose serious secu- 
ity risks for jurors, witnesses, court 
mployees, and judges. . . Finally, 
nany of these old buildings cannot 
e equipped with the technology 
iow necessary for the functioning of 
he modern-day federal court." Stahl 
lso pointed to the enormous in- 
rease in the workload of the federal 
ourts in recent years, and the need 
Dr additional judgeships to handle 
he work, which in turn has in- 
reased the need for more space. 

Any expectation by the Judiciary, 
lowever, that the General Services 
administration would be able to 
upply the space has been disap- 
pointed, he told the subcommittee, 
y the sudden policy reversal of the 
'resident's Office of Management 
nd Budget (OMB). "We now find 
urselves in the intolerable situation 
f a projected second year with no 
unding for courthouse construction." 




Judge Norman H. Stahl (V Cir.) appealed to Congress for courthouse construction funding. 



Stahl outlined to the committee 
the steps the Judiciary has taken to 
reduce overall cost and increase the 
efficiency of new courthouses. The 
new U.S. Courts Design Guide, the 
result of a comprehensive review, is 
expected to reduce building con- 
struction costs by about 5 percent 
($2 million) for an average-size 
project. The Conference also has 
adopted a policy requiring a court- 
room for each active district judge, 
ensuring that cases going to trial are 
disposed of expeditiously. The 
Conference has encouraged every 
judicial council to develop a policy 
on courtroom sharing by senior and 
visiting judges. Meanwhile, the 
Judiciary continues to review and 
update project priorities. 

Stahl told the subcommittee that 
the Judiciary welcomes the opportu- 
nity to work with Congress. Said 
Stahl, "In view of the current 
impasse on courthouse construction 
funding, the costs of courthouses 
will needlessly increase unless steps 
are taken to ensure a viable future 
construction program." £^ 



Fiscal Year 1999 Proposed Projects 

The courthouse projects in the 
following cities would have been 
included in the President's FY 99 
budget submission. 

Construction: 

Brooklyn, NY 
Denver, CO 
Laredo, TX 
Jacksonville, FL 
Wheeling, WV 
Greeneville, TN 
Savannah, GA 

Design 

Biloxi-Gulfport, MS 
Eugene, OR 
Springfield, MA 
Little Rock, AR 
Cape Girardeau, MO 
Orlando, FL 

Site 

San Diego, CA 
San Jose, CA 



The Third Branch 



March 1998 



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10 



Thousands 



Bankruptcy Filings 



Mill 

I i i i I 

1993 1994 1995 1996 1997 

Year Ended September 30 

■ Drugs Immigration "Other 



;s grew 5 percent to 50,363. Filings 
r authorized judgeship therefore 
reased from 74 to 78 cases. Defen- 
nt filings climbed to 70,201, a higher 
mber than the total criminal cases 
■d because many cases include 
iltiple defendants. The criminal 
ngs increased in 1997 because of 
;her totals for drug and immigra- 
n cases, the results of initiatives by 
! Department of Justice along the 
lthwest border districts. Most of 
:se cases were disposed of in dis- 
:t courts by guilty pleas, so the 
ge increase in filings did not trans- 
2 to an increase in criminal appeals. 
Drug, fraud, and immigration fil- 
;s accounted for 57 percent of all 
minal cases and for 63 percent of 
criminal defendants, a 2 percent- 
? point increase in both categories 
?r 1996. Filings of drug cases 
nbed 13 percent to 13,656, while 
ngs of drug defendants rose 8 per- 
it to 25,885 — record high levels for 
s offense. Immigration case filings 
e 21 percent to 6,677, while the 
mber of defendants in immigra- 
te cases grew 20 percent to 7,328. 
lud case filings increased for the 
rd consecutive year, with a 3 per- 
it growth in 1977 consisting pri- 
rily of fraud filings associated 
:h false claims and statements, 
ne of these cases were related to 
migration prosecutions and health 
e fraud. 

Weapons and firearms filings re- 
ined at 1996 levels, after declining 
percent in 1996. 



1,600 

1.400 

1,200 

1,000 

800 

600 

400 

200 





Thousands 



I 



III 



1993 1994 1995 1996 
Year Ended September 30 
■ Chapter 7 All Other 



1997 



Bankruptcy filings in fiscal year 
1997 again hit an all-time high for any 
12-month period in the Judiciary's his- 
tory. Bankruptcy filings totaled 
1,367,364, a 23 percent increase over 
fiscal year 1996. The surge in bank- 
ruptcy filings most likely was linked 
to the rise in consumer debt as a 
percentage of personal income. Fil- 
ings rose in 93 of the 94 districts, 
with 82 courts experiencing growth 
greater than 15 percent. The Central 
District of California remained the 
district reporting the largest number 
of filings in the country with 
115,686, an increase of 19 percent. Of 
the total number of bankruptcy fil- 
ings for the 12-month period ending 
September 30, 1997, there were 
958,045 Chapter 7 filings, an increase 
of 26 percent over the 761,652 filings 
in the same period in 1996. The next 
largest group of filings were Chap- 
ter 13 filings at 397,097, an 18 per- 
cent increase over the 336,615 filings 
in the same period in 1996. Chapter 
11 filings dropped to 11,221 in the 
12-month period ended September 
30, 1997, down from 12,554 in the 
same period in 1996. Chapter 12 fil- 
ings also fell slightly, going from 
1,096 in 1996 to 966 in 1997. 

Business filings totaled 54,252, up 
1 percent from the September 30, 
1996, total of 53,520. Non-business 
filings totaled 1,313,112, up 24 per- 
cent. Non-business filings have con- 
stituted an increasingly larger per- 
centage of overall bankruptcy filings 



for more than a decade, climbing 
from 82 percent in 1984 to 96 percent 
in 1997. 

Probation and Pretrial Services 

On September 30, 1997, a total of 
91,434 persons were under the 
supervision of the U.S. probation 
system, a 3 percent increase over the 
number reported for 1996. The 
growth was the result of an 11 
percent jump in the number of 
persons serving terms of supervised 
release following their release from 
prison. In comparison, the federal 
prison population totals over 
116,000. 

Persons serving terms of super- 
vised release totaled 51,036, up from 
45,911 on September 30, 1996. 
Probation officers prepared 172,806 
investigative reports in 1997. 

In 1997, the number of defendants 
in the pretrial services system 
increased 9 percent, to 69,283. This 
growth was consistent with the rise 
in criminal defendant filings in the 
district courts. Pretrial services 
officers interviewed 7 percent more 
defendants (up 3,553) and prepared 
9 percent more bail reports (up 
5,620) than in 1996. Prebail reports 
constituted 92 percent of the bail 
reports prepared. The courts re- 
leased 30,757 defendants into the 
custody of pretrial services officers 
and 27,785 of these defendants also 
received restrictive conditions. The 
most frequently ordered restrictive 
conditions were substance abuse 
testing and treatment. House arrest 
and electronic monitoring were 
other restrictive conditions. #«v^ 



The Third Branch ■ March 1998 



JUDICIAL MILESTONES 



Appointed: Barry G. Silverman, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Ninth Circuit, 
February 6. 

Appointed: Charles R. Breyer, as U.S. 
District Judge, U.S. District Court for 
the Northern District of California, 
January 1. 

Appointed: Bruce W. Kauffman, as 

U.S. District Judge, U.S. District Court 
for the Eastern District of Pennsylvania, 
January 20. 

Appointed: Carlos R. Moreno, as U.S. 
District Judge, U.S. District Court for 
the Central District of California, 
February 6. 

Appointed: Rodney W. Sippel, as U.S. 
District Judge, U.S. District Court for 
the Eastern District of Missouri, 
January 27. 

Appointed: Whitney Rimel, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Eastern District of 
California, February 4. 

Appointed: James K. Bredar, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of Maryland, January 26. 

Appointed: Richard F. Cebull, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of Montana, February 1 . 

Appointed: Donald P. Dietrich, as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of Georgia, 
February 1. 

Appointed: Claire V. Eagan, as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of Oklahoma, 
January 27. 

Appointed: Paul Game, Jr., as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of Georgia, 
February 1. 

Appointed: Craig M. Kellison, as U.S. 
Magistrate Judge, U.S. District Court 
for the Eastern District of California, 
February 3. 

Appointed: Stephen E. Miller, as U.S. 
Magistrate Judge, U.S. District Court 
for the Central District of California, 
January 12. 

Appointed: John H. Smith, as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of Georgia, 
February 1. 



Appointed: Catherine A. Walter, as 

U.S. Magistrate Judge, U.S. District 
Court for the District of Kansas, 
December 8. 

Elevated: Judge Edward R. Becker, to 

Chief Judge, U.S. Court of Appeals for 
the Third Circuit, succeeding Delores K. 
Sloviter, January 31. 

Elevated: Judge Marilyn L. Huff, to 

Chief Judge, U.S. District Court for the 
Southern District of California, succeed- 
ing Judith N. Keep, January 24. 

Elevated: Judge Graham Calder 
Mullen, to Chief Judge, U.S. District 
Court for the Western District of North 
Carolina, succeeding Richard L. 
Voorhees, January 28. 

Senior Status: Judge James H. Alesia, 

U. S. District Court for the Northern 
District of Illinois, February 1. 

Senior Status: Judge Peter C. Dorsey, 

U.S. District Court for the District of 
Connecticut, January 2. 

Retired: Senior Judge John A. 

Mackenzie, U.S. District Court for the 
Eastern District of Virginia, January 30. 

Retired: Senior Judge Stanley J. 
Roszkowski, U.S. District Court for the 
Northern District of Illinois, January 31. 

Retired: Bankruptcy Judge Richard T. 
Ford, U.S. Bankruptcy Court for the 
Eastern District of California, February 3. 

Retired: Bankruptcy Judge Helen S. 
Balick, U.S. Bankruptcy Court for the 
District of Delaware, January 31 . 

Retired: Magistrate Judge Robert M. 
Holter, U.S. District Court for the 
District of Montana, January 31. 

Resigned: Magistrate Judge James 
Dennis Hubel, U.S. District Court for 
the District of Oregon, December 31. 

Resigned: Magistrate Judge Barry 
Silverman, U.S. District Court for the 
District of Arizona, February 5. 

Resigned: Magistrate Judge Paul M. 
Rosenberg, U.S. District Court for the 
District of Maryland, January 25. 

Deceased: Senior Judge Frank G. 
Theis, U.S. District Court for the 
District of Kansas, January 17. 

Deceased: Bankruptcy Judge Sidney 
Mathew Weaver, U.S. District Court 
for the Southern District of Florida, 
January 23. £v^ 



THIRD 

BRANCI I 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(302) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Linda L. Stanton 



Please direct all inquiries and address 
changes to The Third Branch at the above 
address or to redmond@teo.uscourts.gov. 



JUDICIAL BOXSCORE 

As of March 1,1998 



Courts of Appeals 




Vacancies 


24 


Nominees 


16 


District Courts 




Vacancies 


58 


Nominees 


29 



Court of International Trade 
Vacancies 3 

Nominees 2 



Courts with 

"Judicial Emergencies" 



31 



The Third Bmnch m Mnnh I'i'is 



For Judiciary, Pace of 
Congress' Second 
Session is Brisk 



With the working days numbered 
(\ the second session of the 105 th Con- 
fess, the concern has been that Con- 
fess would not accomplish all that 
leeds to be done before its projected 
)ctober adjournment. However, as 
ar as federal courts are concerned, 
lie legislative pace has been brisk. 

In late February, the House 
•assed H.R. 1544, the Federal 
agency Compliance Act, and re- 
ared the bill to the Senate. The bill 
enerally would prohibit federal 
gencies from pursuing policies of 
on-acquiescence in, and relitigation 
f, precedents established in the fed- 
ral circuits. In early March, the 
louse passed H.R. 424, legislation 
nat would make it easier to apply 
landatory minimum sentences to 
ersons convicted of violent or drug- 
elated federal crimes in which they 
ossess a gun. 

H.R. 992, the Tucker Act Shuffle 
lelief Act of 1997, passed the House 
n March 12. The bill would grant 
ie district courts and the Court of 
ederal Claims concurrent jurisdic- 
on over claims arising out of 
gency action alleged to constitute a 
iking in violation of the Fifth 
intendment. The plaintiff would 
lect which court shall hear and de- 
?rmine those claims. The Court of 
ederal Claims would be given the 
ower to grant equitable and de- 
laratory remedies in such cases 
■men appropriate. All appeals, 
whether from the district courts or 
•om the Court of Federal Claims, 
rould be before the U.S. Court of 
appeals for the Federal Circuit. 

The House Judiciary Committee 
Iso marked up two bills affecting 
xieral courts: H.R. 2294, the Federal 
burts Improvement Act of 1998, 
nd H.R. 1252, the Judicial Reform 



Act of 1997. The Judiciary supports 
H.R. 2294, but opposes seven provi- 
sions in H.R. 1252. 

H.R. 2294, The Federal Courts 
Improvement Act oil 998 

H.R. 2294, the Federal Courts Im- 
provement Act of 1998, moved rap- 
idly through the subcommittee and 
full Judiciary committee, thanks to 
the chairman of the House Judiciary 
Subcommittee on Courts and Intellec- 
tual Property, Howard Coble (R-NC), 
who assumed a leadership role in 
bringing the bill through with biparti- 
san support from ranking minority 
member Barney Frank (D-MA). Judi- 
ciary Committee chair Henry J. Hyde 
(R-IL) and ranking minority member 
John Conyers Jr. (D-MI) were instru- 
mental in helping to move the bill 
through the full committee. 

Under Title II of the Federal Courts 
Improvement Bill, provisions have 
been included that would clarify 
regulatory authority pertaining to the 
Judiciary Information Technology 
Fund and allow reimbursement of the 
Judiciary for civil and criminal forfei- 
ture expenses from the Department of 
Justice. 

Under Title III of the bill, contempt 
authority would be extended to mag- 
istrate judges, and magistrate judge 
positions could be established in the 
district courts of Guam and the 
Northern Mariana Islands. Provisions 
also would establish a place of hold- 
ing court in the Eastern District of 
Texas and reauthorize appropriations 
for the federal substance abuse treat- 
ment program. 

Title IV would address judicial 
personnel administration, benefits 
and protections. One provision 
would amend the Rule of 80, 28 
U.S.C. § 371, to allow, with certain ex- 
ceptions, Article III judges who have 
reached the age of 60 with 20 years of 
service to take senior status. Other 
provisions would establish firearms 
training programs for judges who 
choose to carry firearms and extend 
judicial authority to carry firearms in 



nine additional states; allow payment 
of property damage, theft, and loss 
claims of jurors; and give the Judi- 
ciary authority to prescribe reason- 
able fees for use of information tech- 
nology resources provided by the Ju- 
diciary for remote access to the court- 
house by litigants and the public. 
Title IV contains a provision allowing 
the Director of the Administrative Of- 
fice to designate judicial branch offic- 
ers to certify payment for goods and 
services. As amended in committee, 
Title IV also contains provisions that 
would authorize three additional per- 
manent district judgeships and one 
temporary judgeship in the Middle 
District of Florida, and two tempo- 
rary judgeships in the Southern Dis- 
trict of Horida. 

Under Title V, the Criminal Justice 
Act Amendments, the maximum 
amounts of compensation for attor- 
neys, and for services other than 
counsel, would be increased. 

H.R. 1252, Judicial Reform Act of 1997 

Generally, the Judiciary is con- 
cerned with the "reforms" H.R. 1252, 
the so-called "Judicial Activisim" bill, 
proposes to make. The Judicial Con- 
ference opposes the enactment of sec- 
tions 2, 3, 4, 5, 6, 7, and 8 of the bill. 
However, the Conference favors sec- 
tions 9 and 10. Following a markup 
on March 10, a second markup was 
scheduled for late March. 

D Section 2 provides that a three- 
judge court must hear an applica- 
tion for an injunction restraining, 
on the ground of unconstitution- 
ality, the enforcement, execution, 
or operation of a state law 
adopted by referendum. 

D Section 3 would authorize a court 
of appeals to permit, at its discre- 
tion, an appeal by either party 
from a district court's class action 
certification decision. This amend- 
ment of 28 U.S.C. §1 292(b) cir- 
cumvents action, consistent with 
the rule-making process estab- 
lished by Congress, by the Con- 
See Session on page 11 



833 



The Third Branch 



March 1998 



INTERVIEW 



Coble Takes On Task of Overseeing Coorts 



Representative Hoxvard Coble (R-NC) is 
chair of the House judiciary Subcommittee 
on Courts and Intellectual Property. He has 
served as a member of the House since 1985. 

Q, In the last few years, your 
• role on the Subcommittee on 
Courts and Intellectual Property has 
evolved from junior committee 
member to chairman. How has your 
perspective changed on issues 
affecting the federal courts now that 
your role has changed? 

A. I don't think that my per- 
• spective on various courts- 
related issues has changed, insofar 
as the subcommittee is considering 
issues that were reviewed in the 
past and have been resurrected 
again during my first term as 
chairman. At the same time, I do feel 
a greater responsibility as chairman 
to expedite movement of that 
legislation that I believe is important 
and beneficial to the operations of 
the federal Judiciary. Being chair- 
man means you have to be more 
process- and results-oriented than 
when you are a junior member in a 
minority party. 



A # It's not a perfect bill by any 
• means, but H.R. 1252 is a 
good bill that addresses a limited 
number of judicial problems in a 
restrained manner. Former Repre- 
sentative Sonny Bono's contribution 
to the bill, the requirement that a 
three-judge panel consider chal- 
lenges to state laws enacted pursu- 
ant to referendum, is a case in point. 
California citizens were, in my 
opinion, justifiably upset with the 
decisions to overturn Propositions 
187 and 209; in each case, a single 
judge rendered the opinion. Having 
three judges review these challenges 
is more equitable to voters in that 
conferring this power on a single 
man or woman sends an undemo- 
cratic message: your vote and those 
of millions of other citizens don't 
count; you can be trumped by one 
person with life tenure. 

Another example is Representa- 
tive William D. Delahunt's (D-MA) 
contribution to the bill. We had a 
witness at our hearing who lives in 
the geographic confines of the Sixth 
Circuit, a mother whose young 
daughter was brutally raped and 
murdered by a man who later 



"The Constitution gives Congress the right to oversee 
Article III courts, and I think I would be acting irresponsibly 
if I shirked this task because it sometimes invites controversy. 



Q # The Judicial Reform Act, 
• H.R. 1252, was introduced 
last session and was the focus of 
much debate. Republican leaders 
support the legislation while the 
Judicial Conference has opposed 
several provisions. How do you 
view the bill? 



benefited from counsel and due 
process protections — to which he 
was entitled — but who was lawfully 
convicted of murder. Tennessee 
permits capital punishment in these 
cases, but the man has sat on death 
row for years. The same judge who 
handled the man's appeal appropri- 




Representative Howard Coble (R-NC) 



ates all habeas cases in that circuit. 
No one is executed on his watch. Is 
that fair to the citizens of Tennessee 
or to that little girl's mother? So 
Representative Delahunt came up 
with the idea at the hearing that we 
should deny the chief judge of every 
circuit the ability to reserve habeas 
cases for a single judge. 

The bottom line is that I firmly 
believe the great majority of federal 
judges are serious men and women 
who perform a valuable public 
service. But sometimes there is 
abuse in the courtroom or in the 
chambers, and the Judiciary has not 
always rushed to correct its mis- 
takes or counsel its brethren. The 
Constitution gives Congress the 
right to oversee Article III courts, 
and I think I would be acting 
irresponsibly if I shirked this task 
because it sometimes invites contro- 
versy. 



Q # Your subcommittee consid- 
• ered the Federal Courts 
Improvement Act, H.R. 2294, last 
session. Will the legislation move in 
this session? 



10 



////• I hiril lirimi h 



March 1998 



A . 1 introduced H.R. 2294, the 
rV • Federal Courts Improve- 
lent Act of 1997, at the request of 
le Administrative Office of the U.S. 
ourts. The Subcommittee on 
ourts and Intellectual Property 
eld a legislative hearing on the bill 
n October 9, 1997. The ranking 
lember, Barney Frank (D-MA), and 
offered an en bloc amendment to 
le bill, which was adopted, at the 
abcommittee markup held on 
ebruary 26, 1998. The en bloc 
nendment removed some sections 
id added some additional propos- 
s from the Administrative Office 
"id other members. H.R. 2294 was 
•ported favorably to the full 
)mmittee. Representative Frank 
id I offered an en bloc amendment 
: the full committee markup on 
larch 3, 1998. The amendment 
rmoved two bankruptcy sections, 
hich will best be handled in 
lother venue, and it clarified to 



what extent the Judiciary may 
collect fees for the use of electronic 
technology resources. It is antici- 
pated that H.R. 2294 will be consid- 
ered on the floor sometime in March. 



Q # Your committee has held 
• hearings on H.R. 2603, the 
Alternative Dispute Resolution and 
Settlement Encouragement Act. As 
you know, the Conference supports 
ADR, with districts free to employ 
the type of ADR program that is 
most effective. What is your view of 
ADR? 

A. I am a big supporter of ADR 
• programs. Congress should 
support programs that help to 
lessen the federal caseload. The 
subcommittee plans to consider the 
bill on March 18, at which time I 
hope to offer some bipartisan 
changes to the ADR program by 



expanding it beyond just arbitration 
to include such devices as early 
referral and mediation. 



Q # During the first session of 
• the 105th Congress your 
subcommittee heard testimony 
regarding the Judiciary's resource 
needs. What are the prospects for 
the Judicial Conference's judgeship 
request in this session of Congress. 

A. H.R. 2294, as amended at 
• the Subcommittee markup, 
included a provision, proposed by 
Representative Charles Canady (R- 
FL), which would add three district 
judges to the Middle District of 
Florida, two district judges to the 
Southern District of Florida, and one 
temporary district judge for the 
Middle District of Florida. JL 



W8&. 



tssion continued from page 9 

ference Advisory Committee on 
Civil Rules on a similar provision 
amending Rule 23 of the Federal 
Rules of Civil Procedure. 

Section 4 would amend the Judi- 
cial Conduct and Disability Act 
of 1980 to require that all com- 
plaints of judicial misconduct 
that are not dismissed as frivo- 
lous, relating to the merits of a 
decision or procedural ruling, or 
not in conformity with the stat- 
ute, be referred to another circuit 
for complaint proceedings. 

Section 5 would limit a federal 
court's ability to enter any order 
or approve any settlement that 
requires any state, or political 
subdivision of a state, to impose, 
increase, levy, or assess any tax 
for the purpose of remedying the 



deprivation of a right under the 
Constitution. 

d Section 6 would allow a party to 
a civil case in a district court to 
bring a motion to reassign, with- 
out cause as a matter of right, the 
case to another appropriate judi- 
cial officer. 

O Section 7 would require random 
assignment of all habeas corpus 
cases in a given judicial district. 

□ Section 8 would authorize the 
presiding judge or justice of an 
appellate court or the Supreme 
Court, to allow cameras in the 
court during court proceedings. 
In the first of two scheduled 
markups of H.R. 1252, amend- 
ments were offered to section 8 
that, during a three-year pilot 
program, would give any pre- 
siding district court judge the 
discretion to permit the photo- 



graphing, electronic recording, 
broadcasting, or televising to the 
public of court proceedings, if 
neither party objected. 

O Section 9 provides for delinkage 
of judges' salaries from those of 
members of Congress, and re- 
peals Section 140 of P.L. 97-92, 
which provides that judges re- 
ceive salary increases only as the 
result of specific legislative action 
by Congress. 

O Section 10 would create special 
federal jurisdiction for litigation 
arising out of a single accident re- 
sulting in the injury or death of at 
least 25 persons alleging damages 
over $50,000 each. The parties 
would have to meet the require- 
ment of minimal diversity, and 
all of the actions arising from a 
single accident would be consoli- 
dated in a single federal court. £^ 



11 






The Third Branch 



March 1998 



Appellate Commission Schedules Public Hearings 



The Commission on Structural 
Alternatives for the Federal Courts 
of Appeals has scheduled six public 
hearings to allow interested persons 
to comment on the commission's 
work. The hearings will be in the 
following cities: 

Atlanta, March 23; Dallas, March 
25; Chicago, April 3; New York, 
April 24; Seattle, May 27; and San 
Francisco, May 29. 

All hearings are currently sched- 
uled to begin at 9:00 and conclude 
by 4:30. Contact the commission for 
the exact hearing locations. 

Congress created the commission 
late last year and charged it with 
studying the structure and align- 
ment of the federal appellate system, 
with particular reference to the 
Ninth Circuit. To assist its work, the 
commission is interested in obtain- 
ing views on whether each federal 
appellate court renders decisions 
that are reasonably timely, are 
consistent among the litigants 
appearing before it, are nationally 
uniform in their interpretations of 
federal law, and are reached 



through processes that afford 
appeals adequate, deliberative 
attention of judges. 

At the public hearings, the 
commission specifically requests 
that witnesses address the following: 

1. What problems or difficulties do 
you perceive in the federal 
appellate system's structure, 
organization, alignment, pro- 
cesses, and personnel that may 
interfere with its ability to 
render decisions that meet the 
above objectives? What criteria 
or standards can be used to 
answer this question? 

2. What measures should be 
adopted by Congress or the 
courts to ameliorate or over- 
come perceived problems in the 
federal appellate system or any 
of its circuits? What are the 
advantages or disadvantages of 
any proposed measures? 

3. What is working well in the 
federal appellate courts? 

Persons may request to 
testify at any single hearing by 
mailing or faxing a one-page 



letter to the commission stating 
their interest in the quest 
identified above, the hearing at 
which they desire to appear, 
and if applicable, the name of 
the organization on whose 
behalf they will be appearing. 
The letter must be received by 
the commission at least 21 days 
before the hearing date. Persons 
who are invited by the commis- 
sion to testify will be expected 
to submit a written statement of 
not more than 2,500 words at 
least five days before the 
hearing. 
Instead of testifying at a hearing, 
interested persons may submit a 
statement in writing to the commis- 
sion anytime before June 1, 1998. 
Statements should be submitted in 
hard copy, typed, double-spaced, 
and also on a computer diskette in a 
format readable by a standard word 
processing program. 

Letters and statements should be 
sent to: Commission on Structural 
Alternatives for the Federal Courts 
of Appeals, Washington, D.C. 20544 

Phone: 202/208-5055. Fax: 202- 
208-5102 ^ 






THE THIRD BRANCH 

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^ANCH 



Newsletter 

of the 

Federal 

Courts 



Vol. 30 
Number 4 
April 1998 




Chief Justice Appeals to Congress 
lor Courthouse Construction Projects 



Chief Justice William H. Rehnquist 
las written to House and Senate 
eadership seeking their assistance in 
(btaining $500 million the General 
•ervices Administration says is 
lecessary to move forward on 14 
ourthouse construction projects. 
These projects," wrote Rehnquist, 
are critically needed if the federal 
ourts are to adequately and safely 
any out the responsibilities placed 
ipon them by the Constitution and 
tarute." Subsequently, the Senate 



recommended in its budget resolu- 
tion that the Appropriations Commit- 
tee fully fund the courthouse 
construction program in fiscal year 
1999. 

The Judicial Conference originally 
endorsed the need for 14 courthouse 
projects in FY 98, then did so again 
for FY 99 in its latest five-year plan of 
courthouse construction priorities. 
Although GSA recommended to the 
Office of Management and Budget 

See Delays on page 2 



See 

Story on 

Page 5 



JUdWy federal ■ |% 

Introduces J ^^}**fT!ft 

New 
Website 



k What's New 

fc Frequently Asked Questions 

k For Public 

► Links 

► Search 

► Employment Opportunities 



the U.S. Courts 



Publications 
and Directories 



News and Information 




Federal Judiciary Channel 



Judge Keith Receives Devitt Award pg. 3 

GAO Releases Report on Judges' Travel pg. 6 

Judge Randolph Discusses Codes of Conduct pg. 10 



Judiciary Bills 
See House Action 
Before Spring Recess 

The House faced the prospect of 
going out for spring recess in April 
with a flurry of activity in March 
on Judiciary-related bills. On 
March 18, the House passed H.R. 
2294, the Federal Courts Improve- 
ment Act of 1998, but not without 
some changes to the version 
approved by the Judiciary Com- 
mittee. On March 24, the House 
Judiciary Committee approved 
H.R. 1252, the Judicial Reform Act 
of 1997 — sometimes referred to as 
the "Judicial Activism" bill — on a 
party line vote and ordered the bill 
reported to the full House. The 
committee also approved on a 
voice vote H.R. 3528, the Alterna- 
tive Dispute Resolution Act of 
1998. 

Change to Rule ot 80 Dropped in House 

A voice vote in the House 
passed H.R. 2294, the Federal 
Courts Improvement Act, but the 
version that went to the floor was 
different from what came out of 
the House Judiciary Committee. 
Just before the House vote, an 
amendment to the "Rule of 80" 
was dropped due to cost consider- 
ations. The amendment to 28 U.S. 

See Action on page 3 



Delays continued from page I 

(OMB) that funding be included for 
the projects in the President's FY 99 
budget request, the OMB eliminated 
the request — even though OMB had 
previously approved site and /or 
design money for nine of the 14 
projects. This was the second year in 
a row that the executive branch 
failed to request from Congress 
funds required by GSA to design 
and construct new and expanded 
facilities for the federal Judiciary. 

Judge Norman H. Stahl, chair of 
the Conference Committee on 
Security and Facilities, and Adminis- 
trative Office Director Leonidas 
Ralph Mecham repeatedly contacted 
congressional leaders, including 
appropriations and authorizing 
committee members, to seek funding 
for the courthouse projects. The 
Chief Justice's letter was the latest 
salvo in the effort to win inclusion of 
the 14 projects in the budget and 
authorization of funds. 

"The General Services Adminis- 
tration, which is responsible for the 
design, construction and operation 
of federal courthouses," Rehnquist 
wrote, "agrees with the Judiciary 
that these projects are fully justified 
and that the projects as proposed are 
the most economical way to provide 
the secure and functional space 
needed to carry out the Judiciary's 
responsibilities." 

The construction projects will 
replace or augment court facilities, 
many over 50 years old, that cannot 
be modified to provide additional 
courtrooms, chambers and office 
space required to meet the tremen- 
dous growth in workload that has 
occurred in the Judiciary. 

C\ The bankruptcy court in Brook- 
lyn, New York, is housed above a 
drugstore in leased space that rou- 
tinely leaks, toilets flood and the 
heating and air conditioning systems 
fail. Meanwhile, delays in renovating 
the Post Office building that would 
house the court have caused decay 



and deterioration, increasing the ( ost 
of eventual restoration. 

"I The lease in the Biloxi, Missis- 
sippi, court facility terminates in 
2003. GSA does not have existing 
space available to meet the needs of 
the court and there are serious space, 
health, and safety problems in the 
current space. 

The district courthouse in Den- 
ver, Colorado, may have to house 
judges, staff, and jury assembly func- 
tions in separate facilities. Juror 
pools already are meeting in court- 
rooms. Delay in funding construc- 
tion may affect purchase of the 
planned site. 

O The district court in Eugene, 
Oregon, has been forced to move all 
the law clerks, the district court 
clerk's office, the bankruptcy court, 
and the probation office out of the 
courthouse. Security problems pose 
what the U.S. Marshals Service calls 
a "life threatening" situation. 

O The security problems in the 
district courthouse in Laredo, Texas, 
are described by the U.S. Marshals 
Service headquarters as among the 
worst in the nation. In addition, the 
court, built in 1906, lacks room for a 
new judge, or facilities to handle a 
skyrocketing caseload. 

O The current multi-tenant fed- 
eral facility in Springfield, Massa- 
chusetts, has significant security 
problems. It lacks secure and sepa- 
rate prisoner corridors, courtroom 
holding cells, and prisoner elevators, 
with the result that dangerous pris- 
oners move through public corridors 
with members of the public, wit- 
nesses and federal workers. 

O Any delays in building on the 
selected site in Jacksonville, Florida, 
will require an increase in the project 
budget. The city already has commit- 
ted to moving City Hall to an adja- 
cent site as part of a revitalization of 
the downtown area. 

D The court in Wheeling, West 
Virginia, is out of space for addi- 



tional judges, the* lerk'sand proba- 
tion offices,attorney-(lient<fjfifr-r 
ence areas, witness rooms, and alter- 
native dispute resolution suites. 
Security also is a serious problem. 

n The Little Rock, Arkansas, 
court will add several judges over 
the next 10 years, and there is no 
space for expansion in the existing 
building. 

D Currently there are only two 
courtrooms in the Cape Girardeau, 
Missouri, courthouse to accommo- 
date six judges and a bankruptcy 
judge. An additional renovated 
courtroom is too small for criminal 
trials. 

D Only one courtroom in the 
Greeneville, Tennessee, courthouse 
has a jury room or facilities for the 
jury. There are no witness rooms, 
attorney conference rooms, or any 
spaces available for trial partici- 
pants. The recently acquired annex 
for one judge can only be used for 
civil trials and has no security. 

C3 There is no room for expansion 
or growth of any court or court- 
related agency in Savannah, 
Georgia's current district court- 
house, where caseload is expected 
to swell and additional judges are 
expected to be added. Prisoners 
are routinely taken through public 
corridors. 

D In the area's booming real 
estate market, the purchase of the 
proposed site of a new district court- 
house annex in San Diego, Califor- 
nia, could be jeopardized by delay. 
Without the annex, staff and court 
agencies will be forced to function 
in separate areas throughout San 
Diego county. 

O Building sites in suitable areas 
of San Jose, California, are disap- 
pearing fast, and delay will limit 
the ability to acquire a site in close 
proximity to the existing facility 
and the utilization of existing 
courtrooms. &^ 



Third Branch m April 1998 



Action continued from [ngel 

C. § 371 would have allowed, with 
certain exceptions, Article III judges 
who have reached the age of 60 with 
20 years of service to take senior 
status. 

Previously, the Subcommittee on 
Courts and Intellectual Property had 
dropped several provisions from the 
oill as introduced, including sections 
that would have created a Judicial 
Conference Foundation, amended 
the Employee Retirement Income 
Security Act, repealed in-state 
plaintiff diversity jurisdiction, and 
:ransferred responsibility to the 
Department of Justice for a wiretap 
report currently prepared by the 
Administrative Office. 

The Clinton Administration 
kveighed-in on the morning of the 
House floor vote with opposition 
:o provisions to transfer of funds 
: rom the Justice and Treasury 
Asset Forfeiture Funds to the Judi- 
riary to cover certain costs; to 
:ransfer employer contributions 
Tom the Civil Service Retirement 
md Disability Fund to a judicial 
branch courts operation fund when 
udges elect to switch to the judicial 
officers' retirement system; to vest 
magistrate judges with criminal 
:ontempt authority in certain 
nstances; and to extend to jurors 
:overage under the Federal Employ- 
ees Compensation Act while going to 
md from jury duty. Despite White 
Touse opposition, these provisions 
■emained in the House-passed 
version of H.R. 2294. The bill now 
*oes to the Senate for consideration 
3y Senator Charles E. Grassley's (R- 
A) Judiciary Subcommittee on 
Administrative Oversight and the 
lourts. 

lameras in Courts Provision Passes 
with Bipartisan Support 

The House Judiciary Committee 
rompleted its mark-up of H.R. 1252, 
he Judicial Reform Act of 1997, and 



ordered the bill reported to the full 
House. A floor vote may occur when 
Congress returns from its spring 
recess at the end of the month. The 
Judicial Conference, which plans to 
review the entire bill, already is 
opposed to sections 2, 3, 4, 5, 6, 7 and 
8 of the bill. Those sections were 
examined in the March issue of The 
Third Branch. 



Several of the bill's sections were 
amended in the full committee. 

Section 8, the provision giving the 
presiding judge of an appellate court 
the discretion to allow cameras in 
the court during civil and criminal 
court proceedings, was amended in 
the full committee to include district 

See Action on page 4 



Devitt Award Honors Judge Damon J. Keith 

Judge Damon J. Keith (6 th Cir.) is the recipient of the 16 th Annual Edward 
J. Devitt Distinguished Service to Justice Award. The award is given annually 
in recognition of an Article III judge who has achieved an exemplary career 
and has made significant contributions to the administration of justice, the 

advancement of the rule of law, 
and the improvement of society 
as a whole. 

Keith has served on the 
federal bench for 31 years. 
Among his landmark decisions, 
he is most cited for the 1972 
decision, U.S. v. Sinclair, com- 
monly referred to as The Keith 
Decision. In that decision he 
found that President Richard 
Nixon and Attorney General 
John Mitchell could not engage 
in warrantless wiretap surveil- 
lance of three individuals 
suspected of conspiring to 
destroy government property 
because the surveillance was in 
violation of the Fourth Amend- 
ment. The decision was affirmed 
by the Sixth Circuit and unani- 
mously upheld by the U.S. 
Supreme Court. 

Keith was appointed in 1976 
to the U.S. District Court for the Eastern District of Michigan, where he served 
as chief judge from 1975-1977. He was appointed to the U.S. Court of Appeals 
for the Sixth Circuit in 1977, and took senior status in 1995. He also has served 
on numerous Judicial Conference committees, and chaired the Judicial Confer- 
ence Committee on the Bicentennial of the Constitution. 

The Devitt Award is named for the late Edward J. Devitt (D. Minn.). This 
year's award selection committee consisted of Justice Clarence Thomas (S.C.), 
Judge Phyllis A. Kravitch (11 th Cir.), and Judge Ralph G. Thompson (W. D. 
Okla.). 




Judge Damon J. Keith (6th Cir.) 



The Third Branch m April 1998 



Action continued from page3 

courts. This amendment, with 
respect to district courts, sunsets 
three years after the date of the 
enactment of the bill. 

Section 6 was amended in sub- 
committee and in full committee. 
The provision originally said any 
party to a civil case in any district 
court could bring a motion to 
reassign the case to another appro- 
priate judicial officer, and that each 
party would be entitled to one 
reassignment without cause as a 
matter of right. As amended in 
subcommittee, the practice would 
only be required in the 21 district 
courts with the largest number of 
authorized district court judgeships, 
would sunset five years from the 
date of enactment, and would 
require the Federal Judicial Center to 
monitor the use of the right to bring 
a motion to reassign and to report 
annually to Congress on its findings. 
In the full committee, an additional 
amendment was adopted that 
excludes from this section civil 
actions heard by district courts of 
three judges. 

Section 5 underwent a change of 
language in full committee. This 
provision originally said that no 
district court may enter any order or 
approve any settlement that requires 



any state or political subdivision of a 
state to impose, levy, or assess any 
tax, unless the court makes certain 
findings. At subcommittee, the 
word "requires" was changed to 
"expressly directs," but in full 
committee the language was 
changed back to "requires." 

Section 4, a provision that would 
transfer all complaints of judicial 
misconduct to another judicial 
circuit, was amended in subcommit- 
tee to allow the chief judge to 
dismiss complaints as frivolous, as 
relating to the merits of the case or 
ruling, or as not being in conformity 
with the statutory requirements. As 
passed by the committee, only 
where a special committee is formed 
to investigate the complaint would 
the case be transferred to another 
circuit. 

Sections 9 and 10 are supported 
by the Judicial Conference. Section 
9, which provides for delinkage 
of judges' salaries from those 
of members of Congress, and 
repeals Section 140 of P.L. 97-92, 
was amended to include admin- 
istrative law judges. Section 10 
creates special federal jurisdiction 
for litigation arising out of a single 
accident resulting in the injury 
or death of at least 25 persons 
alleging damages over $50,000 
each. 



ADR Legislation Requires Choices 

A number of bills on alternative 
dispute resolution (ADR) have 
circulated in the 105"' Congress. 
First, there was H.R. 903, the 
Alternative Dispute Resolution 
and Settlement Encouragement 
Act introduced by Representative 
Howard Coble (R-NC) nearly a year 
ago. By October 1997, the bill was 
replaced by H.R. 2603. Judge D. 
Brock Hornby, chair of the Judicial 
Conference Committee on Court 
Administration and Case Manage- 
ment, testified at hearings on H.R. 
2603 before the House Judiciary 
Subcommittee on Courts and 
Intellectual Property. 

The legislation was replaced, in 
turn, by H.R. 3528, the Alternative 
Dispute Resolution Act of 1998, 
which was marked up by the House 
Judiciary Committee on March 24. 

Under H.R. 3528, district courts 
would be required under certain 
circumstances to provide litigants in 
all civil cases with a choice of 
alternative dispute resolution 
processes. The Judicial Conference 
Committee on Court Administration 
and Court Management is reviewing 
H.R. 3528 and will make recommen- 
dations to the Judicial Conference or 
the executive committee, as appro- 
priate. £»^ 



National Database Developed on Treatment Programs 



Every day across the country, 
federal probation and pretrial 
services officers make recommenda- 
tions to federal judges on the 
appropriate pretrial or post-convic- 
tion treatment for defendants. This 
results in over $46 million being 
spent annually on treatment 
through the Substance Abuse 
Treatment Program, the Mental 
Health Treatment Program, and the 
Alternatives to Detention Fund. But 
until now, there was no way to 



know which treatments were most 
successful, or even to fully deter- 
mine how many clients were receiv- 
ing which type of treatment. The 
National Treatment Database was 
developed to fill that need. 

The National Treatment Database 
(NTD) was developed by the Ad- 
ministrative Office's Federal Correc- 
tions and Supervision Division 
(FCSD) to track national substance 
abuse and mental health expendi- 
tures, while it tracks the impact of 



treatment on defendants /offenders 
while on community supervision. 
It also allows for the develop- 
ment of performance measures 
in the areas of substance abuse 
treatment, mental health treat- 
ment or supervision contract 
expenditures. Following testing 
for six months in six probation 
and pretrial services offices, as 
of May the NTD was ready for use 
in all district courts. 






See NTD on Page 



4 



The Third Branch m April 1998 



THE 


articles from monthly 


The Federal Judiciary Channel 




newsletters, and pro- 


uses "push technology" to further 


FFnFDA 


posed changes to the 


improve access to information. 


r LULrvM 


L Mm* Federa I Rules of Pract ice 


Visitors to the channel, once they 


w ^^^ ^^ »^-m ^- flW ^ Procedure posted for 

JUDICIARY p ubiic review 


have registered free of charge, 
can receive current news at their 




Maintained by the 


desktops. 


HOMEPAGE Administrative Office, 


The push software installed 




the website breaks 


by the user performs a periodic 




down into sections on 


check, retrieves the updated infor- 




what's new, news and information, 


mation requested by the user, and 


evamped Internet Site Eases 


publications and directories, materi- 


automatically notifies and sends 


ccess to Judiciary Information 


als for public review, employment, 


the new information to the user. 




links to court homepages, and the 


News releases, updated judicial 


Ever wonder how federal judges 


Federal Judiciary Channel. Questions 


vacancy listings, employment 


■e appointed, or how to file a civil 


about the federal Judiciary or the 


opportunities, and other information 


ise? Want to know the latest 


web site can be forwarded to the web 


about the federal Judiciary are 


inkruptcy statistics or about job 


master via e-mail directly from the 


now available on the Federal 


importunities in the federal Judi- 


homepage. And if you can't find 


Judiciary Channel. &^ 


ary? It's all on the new Internet 


what you're looking for, a search 




eb site unveiled this month by the 


engine will provide results. 





idiciary. 

The site, located at 
ww.uscourts.gov, offers general 
formation on the structure of the 
deral Judiciary; statistics on 
dicial vacancies, bankruptcies, 
\d civil and criminal caseloads; 
iswers to frequently asked ques- 
Dns; and much more. 
"Our new web site represents a 
■eat stride in the federal Judiciary's 
•ntinuing effort to enhance and 
:pand our communications," said 
?onidas Ralph Mecham, Director 
the Administrative Office. 
Vhether a lawyer, student, or 
terested member of the public, I 
?lieve users will find our web site 
be informative and useful. The 
deral Judiciary is committed to 
lilding on available Internet 
chnology to stay in touch with 
?ople around the country and 
ound the world." 
Visitors to the site can access the 
[rectory of Electronic Public 
:cess Services, a discussion paper 
t electronic case filing in the 
deral courts, a report on stan- 
ird electronic citations, or the 
<ng Range Plan for the Federal 
mrts. 

There is information on how the 
diciary utilizes its resources. 



THE 

Federal 



Judiciary 1 ^f5a 



HOMEPAGE 



■ What's New 

Frequently Asked Questions 

For Public Review 

Links ^ 
it Search 

Employment Opportunities 




Publications 
and Directories 




News and Information 



Federal Judiciary Channel 



A Quick Tour 

of the 

Judiciary 

Homepage 



□ What's New: Check here for all the lastest 
information, news releases, and updates. 

d Frequently Asked Questions: Get answers 

to the most asked questions. 
d For Public Review: Review proposed 

changes to the Federal Rules of Practice and Procedure. 
D Links: Find out which courts nationwide have home pages 

and visit them. 

□ Search: Find topics of interest to you in a hurry. 

D Employment Opportunities: Where are the jobs in the 

federal Judiciary? Click here to find out. 
O About the U.S. Courts: Everything you've ever wanted to 

know about the federal Judiciary. 
d Publications and Directories: Find Judiciary publications 

here. 

□ News and Information: View more information, including 
news releases and the monthly judicial vacancy list. 

O Federal Judiciary Channel: Push technology brings Judi- 
ciary news right to your desktop. 



The Third Branch m April 1998 



GAO Releases Report 
on Noncase Related 
Travel by Judges 

The General Accounting Office 
(GAO) released a report in early 
March on non case-related travel of 
Article III judges. Subsequently, 
Senator Charles Grassley (RTA) 
released a statement faulting judges 
for their travel, saying "many of the 
trips were to exotic locations and for 
purposes which appear far removed 
from judicial work." 

The GAO received data on the 
travel of 64 court of appeals judges in 
six circuits and 254 district court 
judges in 34 districts from January 1, 
1995, to September 30, 1997. These 
circuits and districts had either 
requested additional judgeships or 
had experienced judgeship vacancies 
of 18 months or more. The report was 
requested by Grassley as chairman of 
the Senate Judiciary Subcommittee 
on Administrative Oversight and the 
Courts. 

The report does not reach any 
conclusions nor does it make any 
recommendations. It shows that the 
64 court of appeals judges in the 
study took a total of 1,463 non case- 
related trips, encompassing 3,220 
workdays during the period January 
1, 1995, through September 30, 1997. 
The 254 district court judges re- 
sponding in the study took a total of 
3,741 non case-related trips encom- 
passing 9,832 workdays during the 
study period. 

The GAO reported the majority of 
trips, while defined by GAO as non- 
case-related, were for judicial busi- 
ness. The report says that together, 
circuit meetings and activities; 
workshops sponsored by the Admin- 
istrative Office or Federal Judicial 
Center; seminars and other activities; 
trips associated with courthouse 
construction and renovation; and 



Judicial Conference meetings and 
activities accounted for about 68 
percent of all trips and about 73 
percent of all travel workdays 
reported for circuit judges, and 86 
percent of all trips and about 87 
percent of all travel workdays 
reported for district court judges 
during the study period. Nearly 98 
percent of appellate judge travel and 
99 percent of district judge travel 
were to destinations within the 
U.S. In addition, almost all of the 
relatively few trips outside the U.S. 
were made at the request of the 
executive branch. 

Grassley's statement in response 



to the report said, "It is unacceptable 
for district and circuit courts u, 
engage in this much non case-related 
travel while at the same time arguing 
they need more judges because they 
can't get their work done in a timely 
fashion. Some argue that cases have 
been delayed solely because of 
vacancies. This argument doesn't 
hold water when thousands of 
workdays are being spent on travel 
to resort locations around the 
world." 

Grassley gave, as an example, 
travel by a district judge to Australia 
to attend a conference sponsored by 
the Australian Swim Coaches 



The 


Austral 


flSW^HH 






' 


-r 





Australian Olympic athlete John G. Davies swims the breaststroke during a national 
championship in 1951. 



The GAO report, and the press 
release issued by Senator Charles E. 
Grassley took particular note that a 
judge from the Central District of 
California traveled to Australia at 
the invitation of the Australian 
Swim Coaches Association. While 
the report and press statement 
called this a conference, it was 
actually a reunion planned by the 
association of the considerable 
number of Olympic swimmers 
trained by Forbes Carlile, a noted 
Australian coach. 

The judge who attended was 
Judge John G. Davies (CD. Calif.), 
a native of Australia. Davies, along 
with other Australian Olympic 



swimmers, participated in a tribute 
to Carlile. Although airfare was 
paid by the association, Davies paid 
his own expenses for the five-day 
trip. Davies also took this opportu- 
nity to visit his mother, who still 
lived in Australia and who was 
terminally ill. Excluding the Austra- 
lia trip, his noncase-related business 
travel averaged only two and a half 
days per annum during the 33 
months covered by the GAO study. 

Davies won an Olympic Gold 
Medal for Australia in the 1952 
Summer Olympics in Helsinki, 
swimming in the 200 meter breast- 
stroke. He also competed in the 
1948 Olympics in London. Jk^ 



The Third Branch m April1998 



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Association. (See sidebar.) He also 
pointed out judges from the Central 
District of Illinois who made trips to 
Russia in 1995, and judicial meetings 
by other judges in Israel, Great 
Britain, Poland, and Panama. 

On behalf of federal judges, the 
Administrative Office responded to 
Grassley's statement, saying "It 
would neither be fair nor prudent to 
suggest that no United States judge 
should use his or her unique exper- 
tise to provide assistance to foreign 
governments, lecture to lawyers and 
law students, attend judicial educa- 
tion programs, or assist in the 
administration of the federal courts. 
Doctors, members of Congress, and 



most other professionals travel as 
part of their jobs. Their profession 
and those they serve benefit from 
this." 

The Code of Conduct for United 
States fudges acknowledges that 
judges are "specially learned in the 
law. . . [and] in an unique position to 
contribute to the improvement of the 
law, the legal system, and the 
administration of judges." The code 
states that to the extent their time 
permits, judges are encouraged to 
speak to bar associations and other 
groups dedicated to the improve- 
ment of the law. 

In addition, Congress mandates 
certain meetings, including circuit 



judicial councils, the Federal Judicial 
Center Board, and the Judicial 
Conference. In other instances, 
executive branch agencies, such as 
the Agency for International Devel- 
opment, invite and pay for judges to 
travel as official representatives of 
the U.S. government to train judges 
in emerging democracies. The United 
States has an interest in the establish- 
ment of independent, fair, and stable 
justice systems throughout the 
world. 

Finally, like other professionals, 
judges attend continuing education 
and training programs to develop 
and maintain their proficiency and 
expertise. 



NTD continued from page 4 

The impetus for the NTD came in 
1992, with a FCSD review of the 
Substance Abuse Treatment Pro- 
gram. The recommendations that 
came out of that review included the 
implementation of a management 
information system, which was 
subsequently 

endorsed by ^^mh^h^mmmm 

the Judicial 
Conference 
Criminal Law 
Committee. 

In stage 

one of a two- hmimh^^^m 

stage pro- 
gram, court officers use the Proba- 
tion and Pretrial Services Automated 
Case Tracking System (PACTS) that 
is already in place in each district, 
and the Substance Abuse Treatment 
Module to enter data on every 
defendant in their program. In- 
cluded in this data are the treatment 
plan, the associated costs, the client's 
demographic profile, and the 
outcome of the case, i.e., how the 
defendant responded to the assigned 
treatment. "At this stage," says 
Timothy Cadigan, Automation 
Branch chief at the Administrative 



Office, who helped to develop NTD, 
"the module helps a probation chief 
track the success of a specific treat- 
ment plan or contract in their district, 
and make decisions on funding. For 
example, group counseling is 
cheaper, but is it more effective? A 
report generated from the Substance 
Abuse Treatment Module data 



"The NTD can be used to compare the effectiveness 
of programs in major cities or to create cost /benefit 
reports on different treatment possibilities. . ." 



could provide direction on that 
question." 

On the administrative side, the 
module checks for errors in data 
entry, and, because it is linked to the 
conditions set by the judge in each 
case, it also verifies bills for services. 

The second stage is initiated when 
the data from the 150 individual 
pretrial services and probation 
offices is electronically transmitted 
each quarter, via PACTS, to the 
Administrative Office, where it is 
compiled in the NTD. The data will 
be used to produce reports on the 



effectiveness of substance abuse, 
mental health, and alternatives to 
detention programs; develop perfor- 
mance measures for these programs; 
and provide cost/benefit analyses at 
the national level. "Right now, we 
have insufficient data on the meth- 
odologies being used across the 
country, "said Cadigan. "But the 

NTD can be used 
■hmh^ to compare the 
effectiveness of 
programs in 
major cities or to 
create cost/ 
' • benefit reports on 

^m^m^^^h^ different treat- 
ment possibilities, 
for example in-patient versus out- 
patient treatment, or counseling by a 
psychologist versus peer counsel- 
ing." 

The result may be the ability to 
provide improved pretrial release 
and sentencing recommendations for 
judicial officers, better allocation of 
resources to successful programs, 
and documentation that additional 
funding will be put to the best 
possible use. Said Cadigan, "I think 
it will change how the whole pro- 
gram is managed." &^ 



The Third Branch m April 1998 



JUDICIAL MILESTONES 


Appointed: Margaret M. Morrow, 


Western District of Michigan, 


as U.S. District Judge for the 


succeeding Laurence E. Howard, 


Central District of California, 


March 4. 


March 9. 


Senior Status: Judge Kenneth 


Appointed: Richard W. Story, as 


K. Hall, U.S. Court of Appeals 


U.S. District Judge, U.S. District 


for the Fourth Circuit, 


Court for the Northern District of 


February 24. 


Georgia, February 10 


Senior Status: Judge Joseph M. 


Appointed: Manuel Barbosa, 


McLaughlin, U.S. Court of Ap- 


as U.S. Bankruptcy Judge, 


peals for the Second Circuit, 


U.S. Bankruptcy Court for the 


March 20. 


Northern District of Illinois, 
March 23. 


Senior Status: Judge Wm. Mat- 
thew Byrne, Jr., U.S. District 


Appointed: Ellen A. Carroll, 


Court for the Central District of 


as U.S. Bankruptcy Judge, 


California, February 28. 


U.S. Bankruptcy Court for the 
Central District of California, 
February 17 


Senior Status: Judge James C. 
Cacheris, U.S. District Court for 


the Eastern District of Virginia, 


Appointed: Dennis Hubel, as 


March 30. 


U.S. Magistrate Judge, U.S. District 
Court for the District of Oregon, 
January 1. 


Senior Status: Judge William J. 
Rea, U.S. District Court for the 


Central District of California, 


Appointed: Glenda E. Edmonds, 


March 31. 


as U.S. Magistrate Judge, U.S. 
District Court for the District of 


Senior Status: Judge Miriam 


Arizona, February 19. 


Goldman Cedarbaum, U.S. 
District Court for the Southern 


Appointed: Paul D. Stickney, as 


District of New York, 


U.S. Magistrate Judge, U.S. District 


March 31. 


Court for the Northern District of 




Texas, March 2. 


Senior Status: Senior Judge John 




Garrett Penn, U.S. District Court 


Elevated: Judge William H. 


for the District of Columbia, 


Albritton, III, to Chief Judge, 


March 31. 


U.S. District Court for the 




Middle District of Alabama, 


Retired: Magistrate Judge Joan S. 


succeeding Myron H. Thompson, 
February 8. 


Brennan, U.S. District Court for 
the Northern District of Califor- 


Elevated: Judge Terry J. Hatter, 


nia, February 28. 


Jr., to Chief Judge, U.S. District 


Deceased: Circuit Judge Donald 


Court for the Central District 


Stuart Russell, U.S. Court of 


of California, succeeding Wil- 


Appeals for the Fourth Circuit, 


liam Matthew Byrne, Jr., 


February 22. 


March 1. 


Deceased: Magistrate Judge 


Elevated: Bankruptcy Judge 


William M. Dale, Jr., U.S. District 


James D. Gregg, to Chief Judge 


Court for the District of Oregon, 


U.S. Bankruptcy Court for the 


March 9. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202)273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Photograph on page 12 by Franz Jantzen 
Collection of the Supreme Court of the 
United States. 

Please direct all inquiries and address 
changes to The Third Branch at the above 
address or to redmond@teo.uscourts.gov 



JUDICIAL BOXSCORE 

As of April 1,1998 

Courts of Appeals 
Vacancies 
Nominees 

District Courts 
Vacancies 
Nominees 

Court of International Trade 
Vacancies 
Nominees 

Courts with 
"Judicial Emergencies" 



The Third Branch m April 1998 



mssm^m 



ludicial Fellows Named 
dp 1998-99 Term 



The Judicial Fellows for the 1998-99 term have been 
lected. They are Nancy G. Miller, who will serve at the 
.iministrative Office; Mary L. Clark, who will serve as a 
How at the Federal Judicial Center; Christie S. Warren, 
ho will serve at the Supreme Court; and Paul E. Fiorelli, 
ho will serve at the U.S. Sentencing Commission. 
The Judicial Fellows Program begins each year in late 
igust or early September. Patterned after the White 
ause and Congressional Fellowships, it provides fellows 
ith an opportunity to study first-hand the administra- 
te machinery of the federal Judiciary. Typically, Judicial 
llows are outstanding individuals from diverse profes- 
ins with proven records of accomplishment. 
Nancy G. Miller is senior counsel in the Office of 
ilicv Development at the Department of Justice. After 

graduating with highest 
honors from the Univer- 
sity of California at San 
Diego, Miller earned a 
law degree at the Univer- 
sity of California's Boalt 
Hall School of Law, 
where she was managing 
editor of the Ecology Law 
Quarterly. Following law 
school, Miller was an 
associate with firms in 
New York and Washing- 
ton, D.C., a trial attorney 
for the U.S. Department 
Health and Human Services, and a senior attorney at 
i Administrative Conference of the United States. 
Mary L. Clark is a teaching fellow and supervising 
orney in the Appellate 
igation Program, 
"orgetown University 
w Center. A magna 
m laude graduate of 
yn Mawr College, 
ark received her law 
gree from Harvard 
w School, where she 
is executive editor of 
irvard Civil Rights — 
ml Liberties Law Review. 
ter graduation, Clark 
is a law clerk for Judge 






John C. Godbold (11 th Cir.), then joined the Equal Employ- 
ment Opportunity Commission as an appellate attorney. 
Her publications include "Legal Education and Coeduca- 
tion: A Historical Vantage," and "The Founding of the 
Washington College of Law: The First Law School 
Established by Women for Women." 

Christie S. Warren is the international project 
coordinator for the Judicial Mentor Program in Haiti. 

She is responsible for 
writing curricula and 
training materials for 
international judges and 
judicial educators 
acting as mentors, and 
she served as a liaison 
with partners in the 
U.S. and Haiti. She has 
worked extensively 
with the Cambodian 
Court Training Project 
and has served as a 
consultant for programs 
in Guatemala, Vietnam 
and Rwanda. Warren 
graduated with distinction from the University of 
California, Berkeley and earned a law degree at the 
University of California, Davis, where she was an extern 
for the Intergovernmental Maritime Consultative 
Organization. 

Paul E. Fiorelli is a professor of legal studies at 
Xavier University in Cincinnati, Ohio. After receiving 
a B.A. in economics from St. Lawrence University, 
Fiorelli earned both a 
law degree and an 
M.B.A. from the Univer- 
sity of Dayton. After two 
years of private practice, 
Fiorelli joined the Xavier 
faculty as an assistant 
professor of accounting 
and law, then served as 
the Arthur Anderson 
Business Ethics Coordi- 
nator and the Business 
Law Coordinator. He 
has completed extensive 
research on sentencing 
guidelines and ethics, 
and he is co-author of 

The Federal Sentencing Guidelines: Guidelines for Internal 
Auditors. $-^ 




The Third Branch m April 1998 



INTERVIEW 



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>o&BQ 



10 



Ethics Advice Is This Committee's Work 



Judge A. Raymond Randolph (D.C. Cir.) 
chairs the Judicial Conference Committee 
on Codes of Conduct. He was appointed to 
the U.S. Court of Appeals for the District 
of Columbia in 1990. 

Q. The Committee on Codes of 
• Conduct has a wide range of 
responsibilities. In your view, what 
are the most valuable services the 
committee provides? 

A. The committee provides 
• advice in writing or some- 
times by telephone to judges and 
judicial employees who are covered 
by the Codes of Conduct and the 
Ethics Reform Act. We do not adjudi- 
cate or investigate. We rely on the 
judge or the employee for information 
about the particular problem facing 
them, and then we try to provide 
some guidance about what the Code 
of Conduct or the Ethics Reform Act 
says with respect to the problem. We 
do not respond to inquiries from third 
parties. 

Through training programs and 
through articles in various publica- 
tions, we try to alert judges and 
judicial employees to applicable 
ethical standards. After six years on 
this committee, my impression is that, 
by and large, judges and judicial 
employees are very conscientious 
about trying to follow the standards 
that are set forth in the code and in 
the Ethics Reform Act. If a problem 
crops up, it is more often than not 
simply due to lack of knowledge 
about what is demanded or expected 
of the judge or the employee. The 
committee believes very strongly that 
the more information that is available, 
the fewer mistakes that will be 
made. 



Q 



. How do judges first learn 
• about the Codes of Conduct? 



A. It's part of the training 
• program for new judges. 
There are various videotapes that 
have been made over the years, 
including an excellent one by Walter 
Stapleton, a former chairman of the 
committee in the late 1980s and early 
1990s. 

Q. Where did the Code of 
• Conduct for United States 
Judges originate? 

A. The impetus for the code 
• dates back to 1969 when 
Judge Clement Haynsworth was 
nominated for the Supreme Court. 
The Senate nomination hearings 
revealed that Judge Haynsworth held 
stock in some of the parties in cases 
on which he sat. It is not entirely 
clear whether that was a violation 
of any rule or statute. At the time 
we had no formal code of conduct 
and the standard for recusal was 
very loose. It basically said that if 
the case would substantially affect 
a particular financial interest of the 
judge then the judge would have to 
step down. It was not clear in Judge 
Haynsworth's situation whether any 
of the cases he handled rose to that 
level. Because of the controversy, a 
committee of the American Bar 
Association set out to draft a new 
code for the Judiciary. Three years 
later, in 1972, the ABA adopted a 
model code for judges. A year later 
the Judicial Conference revised that 
code and adopted it for the federal 
Judiciary. Congress enacted one part 
of the code (Canon 3C) into law; this 
section deals with recusal responsi- 
bilities. 

Q. There are codes of conduct 
• for judicial employees. Can 
you tell us about them? 




Judge A. Raymond Randolph (D.C. Cir.) 



A. Several codes of conduct 
• emerged after the Judicial 
Conference's adoption of the code i 
judges. One was for circuit execurh 
and another was for clerks of court, 
and so on. They were modeled afte 
the code for judges, but there were 
some inconsistencies in them, and 
interpretations were difficult becau 
of the various nuances of language 
Beginning in about 1993, this comn 
tee started looking to see whether v 
could consolidate all these codes in 
one for all judicial employees, exch 
ing federal public defender staff. W 
adopted this consolidated code twc 
years ago. 

The language and the organizati 
of the code for judicial employees 
follows fairly closely the code for 
judges. It is not nearly as strict in 
terms of political participation, for 
example, or outside activities, whei 
judges are held to a much different 
standard. 

Q. What kinds of ethical advi 
• can judges obtain from the 
committee, and how do they obtain 



A 



. We have a representative 
• from each circuit on the 



committee, plus one bankruptcy juc 
and one magistrate judge. The easie 
way for a judge to get quick inform; 
tion is to call either the circuit repre- 
sentative or me. To obtain an advise 



The Third Branch m April 1998 




pinion, the judge should send me a 
tter asking for advice. We receive 
nywhere from 70 to 90 of these 
Kitten requests every year, some 
;rv detailed. When we get a written 
quest for advice we respond in 
riting and try our best to do so 
jickly. Any response goes out over 
€ chairman's signature and repre- 
nts the views of the entire commit- 
e 



2 



Is this procedure available to 
judicial employees also? 



A . Yes. As a matter of our 
~\« operating procedure we don't 
ve advice by telephone if the 
lestion being asked isn't fairly well 
ttled in prior committee advice, or 
advisory opinions, or in the regula- 
rs. If it is a new matter we haven't 
oken on before, then we ask the 
dividual to send a letter so that all 
members of the committee can 
rticipate in the advice that we give. 
It is also important to know that the 
de of conduct itself is framed in 
■ms of what judges and employees 
ght to do, not what they must do. 
that respect, it's truly an ethical 
de, and it is very precious and very 
•e. We ought to do everything to 
eserve it. We have set very high 
mdards and judges, and employees 
nscientiously try to adhere to them. 
Ken our committee gives advice 
;'re not binding anybody. A judge 
iree to disagree with our interpreta- 
n of the code of conduct. What we 
to do is simply guide the judge or 
? employee and give them our best 
Igment. 



Q # What guidance can you offer 
• to judges about how best to 
avoid ethical pitfalls? 

A # The first thing a new judge 
• can do is attend one of the 
training programs or get the video- 
tape of the code of conduct program. 
He or she ought to have some passing 
acquaintance with the code. Then a 
brand new judge ought to be very 
careful about setting up a comprehen- 
sive recusal list, whether it is adminis- 
tered by the judge directly or by the 
clerk's office. You can't have an 
appreciation of what should go on 
that list unless you know what the 
requirements are with respect to prior 
affiliations or financial interests, and 
matters of that sort. And then a judge 
has to update his or her recusal list 
periodically. 

Q # Your committee issues 
• advisory opinions. Can you 
describe some of the recent opinions? 

A # In addition to giving private 
• advice by letter on a confiden- 
tial basis, we periodically publish 
advisory opinions. These are com- 
piled in the "Red Book," which is 
Volume II of the Guide to Judiciary 
Policies and Procedures. There are more 
than 90 of those opinions. We publish 
when we detect a significant problem 
or a question that is being asked over 
and over again. For example Advi- 
sory Opinion No. 64 deals with when 
judges can hire as law clerks the 
children of other judges. We also have 
an advisory opinion (No. 93) dealing 
with political activities, giving guide- 



lines for judicial employees about what 
they should and shouldn't do. 

Q. What subjects are on the 
• agenda for the committee in 
the next few years? 

A. The advisory opinions I just 
• mentioned date back more 
than 25 years. After reviewing them 
several years ago, the committee 
believed some of them could be 
misleading because they discuss 
matters that are now governed 
specifically by the Code of Conduct, 
or by the Ethics Reform Act. We've 
undertaken a project to update, revise, 
or sometimes delete the 90-some 
advisory opinions. We're right at the 
end of that project now. 

One of the recurring questions we 
receive is about judges' participation 
in seminars run by various organiza- 
tions within the executive branch. The 
question is under what circumstances 
can a judge speak, teach or participate 
when the only people invited are 
members of the executive branch? We 
are putting together an advisory 
opinion on that recurring topic now. 
We're also looking at the ban on 
honoraria, which was struck down in 
part by the Supreme Court — and then 
declared completely unenforceable by 
the Attorney General. That obviously 
has implications for the members of 
the Judiciary. Also, we're undertak- 
ing increased training initiatives for 
judges, and to some extent for law 
clerks. It's important for judges to 
make certain their new law clerks are 
attuned to the ethical standards that 
apply to them. £^ 



In addition to Judge Randolph, questions within the following 
circuits may be referred to the listed committee members: 



1st Cir. 
2nd Cir. 
3rd Cir. 
4th Cir. 
5th Cir. 
6th Cir. 
7th Cir. 
8th Cir. 



Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 



Joseph A. DiClerico, Jr. (D. N.H.) 
Carol Bagley Amon (E.D. N.Y) 
Thomas N. O'Neill, Jr. (E. D. Pa.) 
William L. Osteen (M.D. N.C.) 
Jerry L. Buchmeyer (N.D. Tex.) 
James H. Jarvis (E.D. Tenn.) 
Daniel A. Manion (7 th Cir.) 
Stephen N. Limbaugh (E.D. Mo.) 



9th Cir. - Judge Mary M. Schroeder (9 th Cir.) 
9th Cir. - Judge Spencer M. Williams (N.D. Calif.) 
10th Cir. - Judge David M. Ebel (10 th Cir.) 
11th Cir. -Judge J. L. Edmondson (11 th Cir.) 
Fed. Cir. - Judge Daniel M. Friedman (Fed. Cir.) 
Bankruptcy Judge Peter W. Bowie (S. D. Calif.) 
Magistrate Judge Gerald B. Cohn (S. D. 111.) 
Marilyn J. Holmes (Counsel to the Committee) 



11 



The Third Branch u April 1998 



Judicial Conference of the United States, March 10, 1998 




Seated: (L-R) Chief Judge Juan R. Torruella (V dr.), Chief Judge Ralph K. Winter, Jr. (2 mi dr.), Chief Judge Edward R. Becker (3'" dr.), 

Chief Judge J. Harvie Wilkinson III (4 lh dr.), Chief Justice William H. Rehnquist, Chief Judge Henry A. Politz (5 th dr.), Chief Judge Boyce F. 

Martin, Jr. (6"' dr.), Chief Judge Richard S. Arnold (8"' dr.), Chief Judge Stephanie K. Seymour (10"' dr.). 

Standing, Second Row: Judge Joseph A. DiClerico, Jr. (D. NH), Chief Judge Charles H. Haden II (S.D. W.Va.), Judge Lloyd D. George (D. 

Nev.), Chief Judge H. Robert Mayer (Fed. dr.), Chief Judge Procter Hug, Jr. (9"' dr.), Chief Judge Joseph W. Hatchett (lV h dr.), Chief Judgt 

Harry T. Edwards (D.C. dr.), Judge James M. Rosenbaum (D. Minn.), Judge Ralph G. Thompson (W. D. Okla.), Leonidas Ralph Mecham, 

Director, AO. 

Standing, Third Row: Judge William H. Barbour, Jr. (S.D. Miss.), Judge Peter C. Dorsey (D. Conn.), Judge Julia Gibbons (W.D. Tenn.), 

Chief Judge Donald E. Ziegler (W.D. Pa.), Judge Robert L. Miller, Jr. (N.D. Ind.), Judge Wm. Terrell Hodges (M.D. Fla.), Chief Judge Norma 

H. Johnson (D. D.C), Chief Judge Gregory W. Carman (Int'l Trade). 



THE THIRD BRANCH 

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' ' l J" 



THE 



THIRD 



BRANCH 



C/0Ay^4L^/ 



Newsletter 
of the 

Federal 
Courts 



Vol. 30 
Number 5 
May 1998 




R 



*3SS 



m 



ouse Passes "Judicial Activism" Billet ° 9 

Democrats questioned the motives °*TQ 



INTERVIEW 



Late last month, the House consid- 
ed the Judicial Reform Act of 1998, 
.R. 1252, ending nearly seven hours 

often rancorous debate with a voice 
>te to pass the bill. 

When introduced last year, H.R. 
!52 became known as the "judicial 
•tivism" bill. House Republicans 
afted the bill in response to what 
ey called "activist" judges, who 
;erstepped their judicial bounds, 
uring the House floor debate, 
jpresentative Tom Delay (R-TX), an 
dent supporter of the bill and an 
itspoken critic of "judicial activism," 
id, "The system of checks and 
dances so carefully crafted by our 
mnding Fathers is in serious disre- 
ur and has been for years. This bill 
kes a very necessary step to bring 
e courts back into constitutional 
der." 

Representative Howard Coble 
>-NC) called the bill a "restrained 
it purposeful effort to combat 
•ecific areas of abuse that exist 
ithin the federal judiciary." House 
diciary Committee Chairman 
enry J. Hyde (R-IL) told the House 
? did not think there was anything in 
e bill "that is hostile at all to the 
)tion of the Third Branch of govern- 
ent and its very important role in 
e functioning of our democracy." 



of the supporters of the bill. "We have 
the right wing not liking the fact that 
the court sometimes enforces constitu- 
tional rights. . . So they come forward 
with a bill which is mostly a nuisance 
and interference and a derogation 
from the efficiency of our court sys- 
tem," argued Representative Barney 
Frank (D-M A) . Representative Maxine 
Waters (D-CA) called H.R. 1252 an 
"odious bill," and Representative 
Howard L. Berman (D-CA) argued 
that, "It is simply wrong to manipulate 
court jurisdiction and procedure as 
this bill would do, to try to make it 
more or less likely that the federal 
courts will reach particular results." 
Even before the bill made it to the 
House floor, the only provision 
enjoying strong Judiciary support was 
stricken. The provision would have 
repealed section 140 of P.L. 97-92 and 
delinked judges' pay from that of 
members of Congress. But because the 
provision would have allowed an 
automatic cost-of-living adjustment 
for federal judges, it was viewed by 
the House Rules Committee as 
providing an "entitlement" and, as 
such, was ruled out of order. The 
action, however, provoked an emo- 
tional discussion of judges' pay. 

See Bill on page 2 



Hyde Leads Debate on Judicial Pay 

Immigration Cases Soar 

Director's Awards Honor Seven 



Pg-2 

Pg-5 

Pg-6 



Meeting the Needs 

Representative Rogers Talks 
About the Judiciary, the Budget, 
and the Challenging Times to 
Come 




. i 



Representative Harold Rogers 
(R-KY) chairs the House Appropria- 
tions Subcommittee on Commerce, 
Justice, State, the Judiciary and 
Related Agencies. A House member 
since 1981, he has been a member of 
the subcommittee for 15 years. 

See Page 10, for his views on what 
the immediate future holds for the 
Judiciary. 



Bill continued from page 1 

(See the accompanying story on 
support for judges' pay.) 

Two sections were dropped during 
floor debate. H.R. 1252 no longer 
contains a provision that would limit 
a federal court's ability to enter any 
order or approve any settlement that 
requires any state, or political subdi- 
vision of a state, to impose, increase, 
levy, or assess any tax for the purpose 
of remedying the deprivation of a 
right under the Constitution. Also 
dropped from the bill was a provision 
strongly opposed by the Judicial 
Conference that would have allowed 
a party to a district civil case to bring 
a motion to reassign the case to 
another judicial officer. 

The Conference also opposes 
several provisions retained in the 
House-passed bill. These provisions 
would: 

O Refer complaints of judicial 
misconduct not dismissed as 
frivolous, relating to the merits of a 
decision, or not in conformity with 
the statute, to another circuit for 
complaint proceedings; 

□ Authorize the presiding judge of 
an appellate or district court to 
permit photographing, electronic 
recording, broadcasting, or 
televising to the public of court 
proceedings. This provision was 
amended by Representatives 
Jerrold Nadler (D-NY) and Steve 
Chabot (R-OH) to allow the court, 
upon request of any witness in a 
trial proceeding other than a party, 
to obscure the face and voice of the 
witness so that it is unrecognizable 
to the broadcast audience; 

3 Require a three-judge court to hear 
an application for an injunction 
restraining, on the grounds of 
unconstitutionality, the enforce- 
ment, execution, or operation of a 
state law adopted by referendum; 

□ Authorize a court of appeals to 
permit an appeal by either party 
from a district court's class action 



certification decision. (This 
provision circumvents procedures 
established by the Rules Enabling 
Act.); and 

□ Randomly assign habeas corpus 
cases in a given judicial district. 

The Conference supports a provi- 
sion in H.R. 1252 that would create 
special federal jurisdiction for 
litigation arising out of a single 
accident resulting in the injury or 
death of at least 25 persons alleging 
damages over $50,000 each. The 
Conference takes no position on a 
provision in the bill that would 
extend the time limit to file appeals 
of decisions by the Merit Systems 
Protection Board from 30 to 60 
days. 

The final provision of the House- 
passed H.R. 1252 was added by 
Representative Tom Delay (R-TX) on 
a "law and order" vote of 367-52. The 
amendment, which would place 
limitations on prisoner 
release orders, says ". . . in 
a civil action with respect 
to prison conditions, no 
court of the United 
States . . . shall have 
jurisdiction to enter or 
carry out any prisoner 
release order that would 
result in the release 
from or non-admission 
to a prison, on the basis 
of prison conditions, of 
any person subject to 
incarceration, detention or 
admission to a facility. . ." 
The provision also would 
terminate any existing 
consent decrees entered into before 
the enactment of the Prison Litigation 
Reform Act of 1995, that provide for 
remedies relating to prison condi- 
tions. In his arguments for the amend- 
ment, Delay criticized judges who, he 
said, have taken control of their 
states' prison systems. Said Delay, 
"There is an activist judge behind 
each of most of the perverse failures of 
today's justice system." ^^ 



Friends of Judiciary 
Support Judges' Pay 
on House Floor < 

In the day-long consideration of 
H.R. 1252, the judicial Reform Act of 
1998, the tone of House debate 
changed dramatically when the topic 
was cost-of-living allowances for 
federal judges. Representative Henr) 
J. Hyde (R-IL), chair of the House 
Judiciary Committee, rose with an 
amendment to reinstate a provision 
previously ruled out of order by the 
House Rules Committee. The provi- 
sion would have repealed section 14( 
of P.L. 97-92 and delinked judges' 
pay from that of Members of Con- 
gress. However, in the face of what 
Hyde termed "serious resistance" 
that threatened to kill the entire bill, 
he did not offer the amendment. 
Instead he addressed the House, 
saying, "Mr. 
Chairman, then 
are not many of 
us, a narrow 
band of Mem- 
bers, but there 
are some on 
both sides of the 
aisle who feel 
that we mistreat 
in terms of cost- 
of-living allow- 
ances our 
Federal judi- 
ciary. Now that 
is a poisonous 
subject in some 
quarters, 
because judge 
bashing is a universal sport. But it is a 
fact, of all the government employees 
in the galaxy, the only group that 
does not get an automatic cost-of- 
living increase is the Federal judi- 
ciary The only way they can get a 

cost-of-living allowance is by us 
voting them one. I think isolating 
Federal judges from all of the other 
employees in the Federal Government 




House Judiciary Committee Chairman 
Henry J. Hyde (R-IL) 



The Third Branch 



May I 







; wrong, it is 
lean-spirited, it is 

nfair. And I do 
elieve the quality 

t justice . . . 
epends on the 
aliber of the 
eople administer- 

ig that justice; 

nd that is the 

ldges, male and 

jmale, throughout 

aeland. We 

enalizethem 

ecause they are 

ederal judges and 

re are mad at this 

idge or that judge 

>r a dumb decision and, so, we are 

oing to have the whole system 

gged so they are different from 

verybody else. I think that is unfair." 

RepresentativeJohnConyersJr. 
>MI), ranking minority member on 
le House Judiciary Committee, 
>ined Chairman Hyde in this 
?mments on delinkage of judges' 
ay from those of members of 
ongress. "Very frankly, my friends, 
us has to do with whether or not the 
ongress of the United States has 
ither the courage or the judgment 
) stand and do what I think the 
verwhelrning majority voted to do 
ack in 1989, and that is take a 
Dst-of-living adjustment, not a pay 
»ise, but a cost-of-living adjustment 

) keep pay even Now, if we 

link we ought not to do that for 
urselves, what the Chairman is 
lying, we ought not to tie in others 
) that same position, which in my 
pinion relates not to the equity of 

ay but relates all to politics But I 

link it is wrong that we continue to 
eep the judiciary tied to the political 
agaries of what this body is willing 
) do for itself." 

Representative Sheila Jackson-Lee 
>TX) also defended the cost-of- 
ving adjustment. "I would like to 
dd my concern and willingness to 
o the extra mile on what I think is 
n important and crucial issue: Are 



Representative John Conyers Jr. (D-Ml) 



we going to have 
the best judicial 
branch this Nation 
can afford? And I, too, 
supported the effort of 
the Chairman to reflect 
on our appreciation 
and respect for the 
judiciary and the 
difficulty of their job 
and position and, 
likewise, as a newer 
Member, think that we 
can defend COLAs no 
matter who it happens 
to be for, unfortunately, 
politics do get in the 
way." 



Finally, Representative Barney 
Frank (D-MA) rose to offer his sup- 
port. "I want to express my admira- 
tion to the gentleman from Illinois. 



Taking the position he is taking so 
vigorously is not an easy one around 
here. But I hope Members will listen 
to what he said, separate out views 
that Members may have on particular 
judges and particular decisions from 
the more important question. 

"We all agree that there is going to 
be Federal law. We agree that there 
is going to be Federal criminal law 
and Federal civil law. We certainly 
all agree, I hope, that we want our 
constituents well served by thought- 
ful, intelligent people. 

"We want people who are at the 
top of the profession in tempera- 
ment, and intelligence, and ability. 
Paying them as little as we do is a 
mistake. We are not going to get 
justice on the cheap that way, and 
we do not serve well this cause of 
justice for our constituents." &^ 



Judges, Director Prep 
Courthouse Funding 1 


are tc 

Vitus 


i Discuss 
Speaker 


4» 




■ 


(Photo left to right) Administrative Office Director Leonidas 
Ralph Mecham; Judge B. Avant Edenfield (S.D. Ga.); Judge 
Malcolm Marsh (D. Ore.), who was representing the Judicial 
Conference Committee on Security and Facilities; and Bankruptcy 
Judge Lamar W. Davis, Jr. (S.D. Ga.) recently met with Speaker 
of the House Newt Gingrich (R-GA) to relay their concerns 
regarding the funding of the federal courthouse construction 
program. 



[I 



I' I 
I 



The Third Branch m May 1998 



House Approves Alterootive Dispote Resolotioo Bill 



4 



Last month, the House passed, by 
a vote of 405-2, the Alternative 
Dispute Resolution Act of 1998, H.R. 
3528. At the request of the Judicial 
Conference, the bill was amended to 
include several provisions intended 
to maximize a court's flexibility in 
developing its ADR program. 

Late last year, Chief Judge D. Brock 
Hornby (D. Me.), chair of the Judicial 
Conference Committee on Court 
Administration and Case Manage- 
ment, presented the Conference's 
position on ADR at hearings before 
the House Judiciary Subcommittee 
on Courts and Intellectual Property. 
The Conference supports the use of 
ADR by district courts, and The Long 
Range Plan for the Federal Courts 
encourages district courts to make 
available a variety of alternative 
dispute resolution techniques, 
procedures, and resources. The 
Conference does not support the 
expansion of mandatory court- 
annexed arbitration programs. 

Under H.R. 3528, district courts 
must require litigants in all civil 
cases to consider the use of an 
alternative dispute resolution process 
at an appropriate stage in the litiga- 
tion. Each district court shall provide 
litigants in civil cases with at least 
one alternative dispute resolution 
process, including, but not limited 
to, mediation, early neutral evalua- 
tion, mini-trial, and arbitration. 
Any district court that elects to 
require the use of ADR in certain 
cases may do so only with respect 
to mediation, early neutral evaluation, 
and, if the parties consent, arbi- 
tration. 

Representative Howard Coble 
(R-NC), chair of the House Judiciary 
Subcommittee on Courts and Intel- 
lectual Property, told the House 
prior to a vote on the bill, that "In 
sum, this is a good bill . . . that will 
offer our citizens a reasonable and 
cost-ef f ecti ve a 1 terna ti ve to expensive 
federal litigation while still guaran- 

The ThirdBranch ■ Mm/ 1998 



teeing their right to have their day in 
court." 

H.R. 3528 allows courts to exempt 
specific cases or categories of 
cases in which ADR would not be 
appropriate. It also provides for the 
confidentiality of ADR processes, 
prohibiting disclosure of confi- 



dential dispute resolution communi- 
cations. 

The Judicial Conference opposed 
an earlier version of this bill that 
would have required courts to 
establish arbitration programs, and 
H.R. 3528 does not make that re- 
quirement. The Conference also has 
opposed requiring all litigants to go 
through the extra step of ADR, whicl 
could add cost and delay. H^ 



New Members of Executive Committee Named 




Chief Judge Ralph K. Winter (2 nd Cir.) 

Chief Justice William H. Rehnquist 
has appointed Chief Judge Ralph K. 
Winter (2 nd Cir.) and Chief Judge 
Boyce F. Martin Jr. (6 th Cir.) to the 
Judicial Conference Executive 
Committee. The addition of Winter 
and Martin brings the Executive 
Committee to full strength with 
eight members. Judge Wm. Terrell 
Hodges (M.D. Fla.) chairs the 
committee and Administrative Office 
Director Leonidas Ralph Mecham is 
an ex-officio member. The Chief 
Justice makes all appointments of 
Conference committee chairs and 
members. 

The Executive Committee is 



Chief Judge Boyce F. Martin Jr. (& h Cir.) 

the Conference's senior executive 
arm, acting on behalf of the Confer 
ence between regular sessions on 
any matter requiring emergency 
action, in addition to other 
duties. Among its responsibilities, 
the Committee reviews the jurisdic 
tion of Conference committees, 
reviews and approves the Judi- 
ciary's annual financial plans, 
prepares proposed discussion and 
consent calendars for the meetings 
of the Conference, and establishes 
and publishes procedures for 
assembling agendas and schedules 
of events in preparation for Confer- 
ence sessions. 




mmigration-Related Cases Soar Over 5-Year Period 



1,000- 
900- 



In the five-year 
eriod ending December 
W7 , criminal filings of 
nmigration-related 
ffenses in district 
mrts grew 197 percent, 
xording to statistics 
>mpiled by the Admin- 
trative Office. This 
as an increase of 4,754 
[ings of such offenses 
l reentry after deporta- 
Dn, documentation 
aud, and immigrant 
nuggling. 

As a consequence, the 
tntribution of immigra- 
>n filings to overall 
iminal filings rose from 5 percent to 
: percent between 1993 and 1997— 
ore than doubling nationally. 
Of the nationwide increase 
filings, 84 percent occurred in 
ne districts in the Southwest and 
lighboring regions: the District 
Arizona, the Central, Eastern, 
orthern and Southern Districts 
California, the District of New 
exico, the District of Oregon, and 
e Southern ^^^^^^^^^^^ 
id Western 
stricts of 
;xas. These 
stricts 
llectively 
counted for 
percent of ^■"■^^™^^^«™ 
e national immigration filings, up 
>m the 57 percent they accounted 
r in 1993. The Southern District of 
ilifornia alone had more than one 
larter of all immigration cases, and 
total filings each year were more 
an twice as high as those of the 
estern District of Texas and the 
uthern District of Texas, the courts 
th the second and third highest 
imber of immigration filings, 
jpectively. 

Between 1993 and 1997, the 
ntribution of immigration filings to 




CA-S TX-S ' TX-W 



CA-E ' AZ 

DISTRICTS — 



CAC ' CA-N ' NM ' OR 



The graph shows the rise in immigration case filings between calendar years 1993 and 
1997 in nine federal court districts. In 1997, these districts collectively accounted for 75 
percent of the national immigration filings, up from the 57 percent they accounted for 
in 1993. 



The Department of Justice's 
aggressive immigration policies 
account for the large increase 
in filings. 



overall criminal filings more than 
doubled nationally, going from 5 
percent to 14 percent. This contribu- 
tion also doubled in seven of the nine 
districts reviewed and almost 
doubled in the Western District of 
Texas and the Central District of 
^ M California. In 

the Southern 
District of 
California, 
this contri- 
bution rose 
from 23 

^^^^^■■^^^^■■■^ percent in 
1993 to 55 percent in 1997. 

During the five-year period, in 
six of these nine districts, the growth 
of immigration filings far exceeded 
the 197 percent national increase. 
As the accompanying chart shows, 
the largest percentage increase in 
filings was in the Northern District 
of California, where immigration 
cases rose from 12 filings in 1993 
to 217 in 1997, a 1,708 percent 
increase. 

The large increase in immigra- 
tion filings were the result of 



aggressive immigration policies 
pursued by the U.S. Department of 
Justice (DOJ) for the prosecution of 
repeat border crossers and crimi- 
nals trying to enter the U.S. through 
this region. 

Three DOJ programs — Operations 
Hold the Line in Texas, Gatekeeper 
in California, and Safeguard in 
Arizona — put resources in the form 
of enforcement personnel, equipment, 
and new technology into this 
effort. Immigration offenses remain 
high on the list of national priorities, 
and the DOJ has requested additional 
border patrol positions in future 
budgets, so immigration filings are 
expected to continue to increase. 

However, this analysis of im- 
migration cases gives only a partial 
picture of the increases that occurred 
in the Southwestern districts as a 
result of DOJ's initiatives. It does 
not include an analysis of drug- 
related case filings or of filings of 
false claims and statements of fraud, 
both of which rose in many of these 
districts because of the availability 
of additional resources. ^«^ 



5 



The Third Branch u May 1998 



Seven Federal Judiciary Employees Honored With 
1998 Director's Awards fnr Dutstanding Leadership 



Seven 1998 Director's Awards for 
Outstanding Leadership were 
recently awarded to federal court 
employees who have made long- 
term contributions to the increased 
effectiveness of the federal Judiciary. 
The awards are given annually by 
Leonidas Ralph Mecham, director of 
the Administrative Office (AO), 
based on evaluations of nominations 
by two federal judges and an assistant 
director of the AO. This year, Judge 
Patricia Wald (D.C. Cir.), Judge 
Royce Lamberth (D. D.C), and Myra 
Howze Shiplett, assistant director 
of the AO's Office of Human 
Resources and Statistics reviewed 
the nominations. 

The recipients of the 1998 
Director's Awards are James D. Baer, 
substance abuse coordinator for the 
U.S. Probation Office, U.S. District 
Court for the Central District of 
California; Lloyd C. Ray Jr., clerk of 
court for the U.S. Bankruptcy Court 
for the Middle District of Tennessee; 
Kenneth Russo, data network 
administrator for 
the U.S. Court of 
Appeals for the 
Fifth Circuit; Mary 
Schwappach, project 
manager for the 
U.S. District Court 
for the District of 
Minnesota; Jack 
Wagner, clerk of 
court for the U.S. 
District Court for the 
Eastern District of 
California; and 

Bruce Rif kin, clerk of court for the 
U.S. District Court for the Western 
District of Washington. A special 
Director's Award for Outstanding 
Leadership was given to James 
Manspeaker, clerk of court for the 
U.S. District Court for the District of 
Colorado, in recognition of his 



James D. Baer 




Lloyd C. Ray Jr. 



leadership and professionalism 
during two recent high-profile trials 
James D. Baer, substance abuse 
coordinator for the U.S. 
Probation Office, U.S. 
District Court for the 
Central District of 
California, was honored 
as a leader in facilitat- 
ing the development 
and improvement of 
drug detection tech- 
niques, which can 
provide more accurate 
information about the 
nature and intensity of 
substance abuse. He 
was the primary person 
to introduce to the criminal justice 
system three of the most significant 
developments in substance abuse 
monitoring in the last 20 years: hair 
analysis, sweat analysis, and non- 
instrumented on-site testing. Writing 
in support of Baer's nomination, 
Robert Latta, chief probation officer, 
U.S. District Court for the Central 

District of California, noted, 
"Baer's contributions to 
improving the way sub- 
stance abuse treatment is 
provided have enabled 
officers to more effectively 
ascertain if an offender is 
abstaining from or using 
prohibited substances. 
Officers are able to more 
quickly initiate intervention 
strategies and thereby 
decrease relapse and recidi- 

vism." 

Lloyd C. Ray Jr. , clerk of court for 
the U.S. Bankruptcy Court for the 
Middle District of Tennessee, was 
honored for his efforts to improve 
efficiency and technological profi- 
ciency in the U.S. Bankruptcy Court 
for the Middle District of Tennessee. 
Ray established a highly successful 




computer information system, 
proficient case management proce- 
dures, and staff training practi* 
His design skills enabled the court to 
operate one of the first Chapter 1 3 
trustee computers in a courtroom, 
resolving hundreds of consumer 
cases on a single docket. By creating a 
computer program that 
added an 1 1 digit zip 
code, Ray was able to 
negotiate a reduced 
postage rate that saved 
the district approxi- 
mately $40,000 annually. 
He was on the forefront 
of designing and imple- 
menting a public access 
system with the local bar 
association to allow 
attorneys direct computer 

access to the court's data 

in real time. 
According to Bankruptcy Judge 
George C. Paine, II (M.D. Term.), "The 
bottom line is that under Mr. Ray's 
leadership and direction, this court 
has maintained its pace with the 
rapidly changing technology as one 
of the most innovative, cutting edge 
systems in the Judiciary today." 
Kenneth Russo, data network 
administrator for the U.S. Court of 
Appeals for the Fifth Circuit, was 
honored for his commitment to 
improving the technological re- 
sources of the courts. 

Chief Judge Henry A. Politz (5 th 
Cir.) said, "Over the past eight years, 
Mr. Russo has produced consistently 
innovative 
computer 
software and 
connectivity 
programs for 
the court 
family, both 
locally and 
nationally. . . 
Mr. Russo's 
ideas, con- 
cepts, and 

successes with state-of-the-art 
computer architecture have courts 




Kenneth Russo 



The Third Branch 



Mini 1998 



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iroughout the Judiciary seeking his 
distance and expertise on a daily 
isis." Russo was instrumental in 
ioneering the effort to obtain a 
omain for the Judiciary on the 
iternet, which eliminated the need 
> subscribe to costly internet service 
roviders and resulted in substantial 
ivings. He also took the lead in 
eating a web site with a news 
Tver and the installation of a 
itional cc:Mail to Internet e-mail 
^tem; as well as in designing 
fective computer security for the 
fth Circuit. 

Mary Schwappach, project 
anager for the U.S. District Court for 
e District of Minnesota, was 
jnored for her efforts in coordinat- 
g the move of the federal courts' 
visional offices in Minneapolis, 
innesota, to a new U.S. courthouse, 
le move entailed relocating approxi- 
ately 250 judges and court staff, 
id more than 4,000 pieces of new, 
»ed and refurbished furniture and 
[uipment over a period of six weeks. 
ie move was accomplished without 
terruption of services to the public 
id without compromising the 
•urt's security. Both Chief Judge 
Paul A. 
Magnuson 
(D.Minn.) 
and Clerk 
of Court 
Francis E. 
Dosal 
praised the 
move as 
"virtually 
problem- 
free." In 
addition, 
Schwappach's 
an for furniture acquisition saved 
e court approximately $40,000. The 
an, which has since been adopted 
a model by the Administrative 
ffice for other courts, facilitates the 
uitable distribution of court funds 
r furniture purchases associated 
ith new courthouse construction 
ojects. 




lary Schwappach 



Jack Wagner, clerk 
of court for the Dis- 
trict Court for the 
Eastern District of 
California, and Bruce 
Rif kin, clerk of court for 
the District Court for 
the Western District of 
Washington, are 
co- recipients of a 1998 
Director's Award for 
Outstanding Leader- 
ship. Wagner and Rifkin 
were honored for their partnership 
in creating a national training 
program that shows courts how to 

be more 




jack Wagnei 



J ^^^ 


effective 


A ^ 


partners in 


m ■ 


construc- 


^JTJF* 


tion 




projects 


■ 


while 


|L 


reducing 


^m ^ 


cost 


lu» 


overruns 


ml Mil M 


through a 


W mm 1 


better 


^■i'Wl/l 


under- 


Bruce Rifkin 


standing of 




their roles 



and responsibilities. Judge Robert E. 
Coyle (E.D. Calif.) noted the advance- 
ments that Wagner's and Rifkin's 
program inspired. He wrote, "The 
end result will be better projects, 
preservation of the presence of the 
court and its architecture in the 
communities we serve, and a better 
presentation to the courts, at the 
early stages, of methods of savings 
and unique ideas that 
might otherwise be 
lost." 

James R. Manspeaker, 
clerk of court for the U.S. 
District Court for the 
District of Colorado, won a 
special 1998 Director's 
Award for Outstanding 
Leadership for his guid- 
ance and professionalism 
during the Oklahoma City bombing 
case trials, U.S. v. Timothy James 




James R. Manspeaker 



McVeigh and Terry Lynn 
Nichols, both held in 
Denver. Manspeaker is 
recognized for his efforts 
in addressing the special 
needs of these two trials. 
He assumed responsibil- 
ity for all coordination 
among federal, state, 
and local entities, 
counsel and the media. 
He also coordinated 
staffing, records manage- 
ment, and trial logistics, while 
spearheading the reconfiguration of 
the trial courtroom and the auxiliary 
courtroom, and the electronic trans- 
mission of the trials to Oklahoma 
City. 

Chief Judge Richard P. Matsch 
(D. Colo.) commended Manspeaker 
for his entire court career, but specifi- 
cally his role in the McVeigh and 
Nichols trials. Matsch wrote, "At the 
outset, he recognized the special 
needs of these cases and developed 
effective plans for all of the phases. . . 
Moreover, he personally managed all 
of these functions each and every 
day. His good judgment, calm 
manner and quick thinking resolved 
many crises which could have 
disrupted and possibly destroyed 
these trials. These efforts were 
above and beyond what is required 
of him in his position as clerk of this 
court. They reflect a commitment to 
this country's system of justice that 
is best described as noble and a 
performance that is nothing less than 
heroic." 

Nominees for the 
Outstanding Leadership 
Award are judged on 
the basis of their out- 
standing sustained 
contributions to increase 
program effectiveness 
and/or reduce costs in 
administration. All 
current and former 
employees except judges 
of the federal courts are eligible for 
the award. &^ 



The Third Branch m May 1998 



JUDICIAL MILESTONES 



Appointed: Susan P. Graber, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Ninth 
Circuit, April 1. 

Appointed: Jeremy D. Fogel, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
California, March 31. 

Appointed: Ivan L. R. Lemelle, as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
Louisiana, April 13. 

Appointed: Hilda G. Tagle, as 

U.S. District Judge, U.S. District 
Court for the Southern District of 
Texas, March 27. 

Appointed: Richard L. Young, as 

U.S. District Judge, U.S. District 
Court for the Southern District of 
Indiana, March 25. 

Appointed: Harwell G. Davis, III, 

as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of Alabama, March 19. 

Appointed: Gary R. Jones, as U.S. 
Magistrate Judge, U.S. District 
Court for the Northern District of 
Florida, April 2. 

Appointed: Elizabeth D. Laporte, 

as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of California, April 4. 

Appointed: John E. Ott, as U.S. 
Magistrate Judge, U.S. District 
Court for the Northern District of 
Alabama, April 6. 

Elevated: Judge Pasco M. Bow- 
man, II, to Chief Judge, U.S. Court 
of Appeals for the Eighth Circuit, 
succeeding Judge Richard S. 
Arnold, April 18. 

Elevated: Chief Bankruptcy Judge 
Richard L. Speer, U.S. Bankruptcy 
Court for the Northern District of 
Ohio, succeeding Judge James H. 
Williams, July 1, 1997. 

Senior Status: Judge James M. 
Ideman, U.S. District Court for the 
Central District of California, April 2. 



Senior Status: Judge Malcolm 
Marsh, U.S. District Court for 
the District of Oregon, 
April 16. 

Senior Status: Judge Zita L. 
Weinshienk, U.S. District Court 
for the District Court of Colo- 
rado, April 3. 

Retired: Magistrate Judge John 
B. Tolle, U.S. District Court for 
the Northern District of Texas, 
March 1. 

Retired: Magistrate Judge John 
M. Dixon, Jr., U.S. District Court 
for the Western District of 
Kentucky, March 31. 

Deceased: Judge L. Clure 
Morton, U.S. District Court for 
the Middle District of Tennessee, 
April 11. 

Deceased: Judge Irving Hill, 

U.S. District Court for the 
Central District of California, 
March 18. 

Deceased: Court of Appeals 
Judge Shiro Kashiwa, U.S. Court 
of Appeals for the Federal 
Circuit, March 13. 

Deceased: Senior Judge Robert 
A. Grant, U.S. District Court for 
the Northern District of Indiana, 

March 2. 

Deceased: Senior Judge Ben 
Krentzman, U.S. District Court 
for the Middle District of 
Florida, March 29. 

Deceased: Bankruptcy Judge C. 
Houston Abel, U.S. Bankruptcy 
Court for the Eastern District of 
Texas, March 2. 

Deceased: Bankruptcy Judge 
Frederick A. Johnson, U.S. 
Bankruptcy Court for the District 
of Maine, April 4. 

Deceased: Bankruptcy Judge 
Richard W. Vandivier, U.S. 
Bankruptcy Court for the 
Southern District of Indiana, 
March 4. 



THJ 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Contributing to this issue: 
Pragati Patrick, AO 

Please direct all inquiries and address 
changes to The Third Branch at the above 
address or to redmond@teo.uscourts.gov. 



JUDICIAL BOXSCORE 



As of May 1,1998 




Courts of Appeals 




Vacancies 


22 


Nominees 


13 


District Courts 




Vacancies 


55 


Nominees 


23 



Court of International Trade 
Vacancies 1 

Nominees 1 



Courts with 
"Judicial Emergencies" 



31 



For more information on vacan- 
cies in the Federal Judiciary visit 
our website at www.uscourts.gov. 



The Hunt Branch m May l<m 



mission on Structural Alternatives Holds Public Hearings 



The Commission on Structural 
lternatives for the Federal Courts 
f Appeals has completed four of its 
x scheduled public hearings, 
ommission members heard testi- 
lony at hearings on March 23 in 
tlanta, on March 25 in Dallas, on 
pril 3 in Chicago, and in New York 
n April 24. The last two public 
?arings will be held in Seattle on 
[ay 27 and in San Francisco on 
[ay 29. 

To date nearly two dozen wit- 
?sses have appeared before 
ie Commission and these state- 
lents are available on the 
>mmission's web site at 
jp.comm. uscourts.gov. 

Federal judges from the Second, 
"lird, Fifth, Seventh, Ninth, and 
eventh Circuits have testified 
?fore the Commission. Their 
stimony generally highlighted 
•actices in their circuits that have 
orked well to handle an ever- 
creasing workload. In addition, 
veral judges in the Fifth and 
eventh Circuits, who experienced 
e split of the old Fifth Circuit, 
ere able to add a unique perspec- 
/e on appellate structure. 

The federal judges testifying were 
dge Patrick Higginbotham (5 th 
j.); Judge Carolyn King (5 th Cir.); 
rmer Chief Judge Robert Parker 

* Cir.); Chief Judge Joseph 
atchett (11 th Cir.); Judge Gerald B. 
oflat (11 th Cir.); former Chief Judge 
the 5th & 11th Circuits, Judge 

hn C. Godbold (11 th Cir.); former 
lief Judge J. Clifford Wallace (9 th 
r.); Judge Harlington Wood, Jr. 

* Cir.); former Chief Judge Jon 
ewman (2 nd Cir.); former chair of 

e Federal Courts Study committee 
dge Joseph Weis (3 rd Cir.); Judge 
armuid O'Scannlain (9 th Cir.); 
rmer director of the Federal 
dicial Center, Judge William W 
hwarzer (N.D. Calif.); and Chief 
dge Edward Becker (3 rd Cir.). 



Collins Fitzpa trick, circuit executive 
of the Seventh Judicial Circuit also 
testified. 

Several attorneys and specialists 
on appellate issues testified before the 
Commission including: Thomas 
R. Meites, on behalf of the Chicago 
Council of Lawyers; Peter Jon 
Simpson, on behalf of Christian Legal 
Education Association & Research; 
Professor William Richman of the 
University of Toledo; Edwin G. 
Schallert, on behalf of the Association 
of the Bar of the City of New York; 
Professor Judith Resnik of the Yale 
Law School; Elena Ruth Sassower, on 



behalf of the Center for Judicial 
Accountability; Sharon Freytag of 
Dallas, Texas; Emmet J. Bondurant, 
Deborah Barrow and Laurie Webb 
Daniel of Atlanta, Georgia; and 
Charles E. Carpenter, Jr. of Columbia, 
South Carolina. 

Following the last of the hearings 
in May and the conclusion of its 
own research, the Commission 
plans to formulate its recommenda- 
tions and prepare a draft for review 
and comment. Congress has set 
a December 1998 deadline to 
receive the Commission's final 
report. £n^ 



r 



Law School tor Journalists Held in Boston 



1 




Approximately 50 journalists 
recently participated in a three- 
hour Law School for Journalists 
co-sponsored by the District 
Court for the District of Massa- 
chusetts and the Flaschner 
Judicial Institute. Participating 
were Judges Sandra L. Lynch 
(1 st Cir.), Nancy Gertner (D. 
Mass.) and William G. Young 
(D. Mass.), and Magistrate Judge 
Zachary R. Karol (D. Mass.), 
who spoke on topics designed 



to give journalists a better 
understanding of court 
processes and procedure, and 
of the issues that arise as they 
cover America's justice system. 

Topics included the appel- 
late courts, trial structure and 
evidence presentation in 
the district courts, the role 
of the jury, sentencing under 
the U.S. Sentencing Guide- 
lines, and state-federal juris- 
diction. *v«- 



The Third Branch 



May 1998 



INTERVIEW 



An Interview 

With Representative Harold Rogers 



Q # Could you comment on the 
• legislative pace of this 
session of the 105 th Congress, and the 
chances of all the appropriations bills 
passing before Congress adjourns in 
October? Is another government 
shutdown possible? 

A # It' s going to be really 
• tough to do, not only because 
of the short number of days, the 
controversies that we normally face, 
and the narrow margins in the 
House, but because our goal is to 
complete all the bills by October 1 st . 
But we can't start yet because we 
don't have a budget resolution. I just 
talked with Chairman Livingston 
about that very subject, and we hope 
to begin marking up the appropria- 
tions bills in committee in middle to 
late May. We hope to begin to deliver 
the bills to the House floor beginning 
in June, and then over the summer 
and into September we'll be focused 
on passing them and getting them 
down to the White House. I think 
that we have to look at the realistic 
possibility that we may have a 
continuing resolution for a short 
period at some point this fall while 
Congress wraps things up. I don't 
think there will be a government 
shutdown. 



Q # Generally, what do you 
• look for in a submitted 
appropriations request? What factors 
influence the determination of the 
final appropriation? 

A. We first evaluate the 
• request to see if there are 
any extraordinary agency needs. In 



other words, is the justification for the 
request vital or mandatory. How is 
inflation affecting that agency? What 
our subcommittee has to spend by 
way of our budget allocation from the 
full Appropriations Committee 
obviously impacts heavily. Are there 
things that the agency is doing that 
are no longer needed? Do they have a 
carry-over balance of funds from the 
previous year? Are we under a 
spending cap, which we are now? 
These are the kinds of things that 
have to be taken into account. 



Q # As chair of the House 
• Appropriations Subcommit- 
tee on Commerce, Justice, State, the 
Judiciary and Related Agencies, 
you've held hearings on the 
Judiciary's appropriation. What does 
your subcommittee look at when it 
comes time to focus on the budget for 
the judicial branch? 

A # We take the same general 
• approach as with other 
departments, but the courts, and 
particularly the Supreme Court, 
obviously stand in a very unique 
position as the Third Branch of our 
government. Since I've been on the 
subcommittee, 15 years now, we 
seem to almost always give the 
Supreme Court exactly what they 
request. We question them about it, 
but it's such a unique relationship 
that the Supreme Court has with 
Congress. Given the Constitutional 
separation of powers, we bend over 
backwards to be sure we don't appear 
to be attempting to influence the court 
on any subjects it may rule on. While 
we expect the court to live under the 




same rules every other agency does as 
far as spending policies, we don't 
grill them as rigorously as we may 
others. 

Are there courts below the Su- 
preme Court we feel a little bit more 
free to examine and inspect and 
suggest and question? Probably so. 
I've made it a point to try to nudge the 
courts to modernize, to use the 
equipment that's available in the 
information age, teleconferencing, 
computerization, and that type of 
thing in order to save expenses on 
travel. The number of new judges that 
have been appointed, and the expan- 
sion of the jurisdiction that we have 
given the courts by the federalization 
of a lot of previously local or state 
crimes, for example, are relevant 
issues. However, the number of 
authorized judges is not as important 
as the number of judges who get 
confirmed. The expenditures associ- 
ated with a judge confirmed in June 
will not be as great as one appointed 
in January. Also, changes that are 
necessary because of security threats 
to courthouses, judges, and personnel 
pose some questions unique to the 
courts. 



Q # What are the prospects for 
• the Judiciary' s budget in 
fiscal year 1999? 

A # Well obviously it's early in 
• the process, so I really can't 
give you much of an idea about how 
it will line up. I don't yet have a 
complete picture of the needs of all 
the agencies we have to fund under 
our bill. My guess is that for the 



10 



I In' I lurd Hram h 



Miiy 1998 



: ^m>-- 




mrts FY 99 will be average, subject 
the allocation provided to the 
ibcommittee. We're not going to 
lortchange the courts. 



"^. The Judicial Reform Bill, 
^J • H.R. 1252, was just passed by 
e House. What are your thoughts 
i the bill? 

\ . I supported it. I don't agree 
~\. • with the entire bill, but on the 
hole it's a good bill. 



"~\ # In the past you've expressed 
^J • concerns regarding the 
diciary's need to economize and 
iu requested the annual Optimal 
l ilization of Judicial Resources 
ports. Based on these reports, how 
the Judiciary responding to your 
ncerns? 

\ . The reports are very useful. 
x • It started as a one-time report 
ew years ago, and since that time 
? requested that it be done on an 
nual basis. Unlike most of the 
ecutive branch agencies for 
horn we appropriate, the Judiciary 
>es not have an Inspector General, 
ho helps dig out waste, fraud, 
d abuse. We look to the Judicial 
mference to do that, and to vigor- 
isly self-examine and to look for 
lys to improve and save money 
iere they can. The more specific 
d measurable these savings are, the 
tter we're able to recycle monies, 
an other funding that otherwise 
ight not be possible, and convince 
ir colleagues of these needs. So the 
: orts of the Judicial Conference to 



help us save money are extremely 
valuable. 



Q. In the appropriations 
• hearings last year you 
expressed some alarm at rising costs 
for defender services. The Judiciary 
has since responded with a report 
describing why such costs were 
rising and the steps taken to hold 
these costs down. Did the report 
respond adequately to your 
concerns? 

A. We've received your report 
• and it does help us focus on a 
couple of areas and on the cost of 
high profile capital cases, and, in 
particular, in the 9 th Circuit. With 
respect to capital habeas corpus 
costs, three of the California districts 
are well above the national average. 
We'll continue to digest the report, 
and we hope to use that information 
to ensure that the funding is being 
put to the most productive use. 
The 9 th Circuit's cost is going to 
have to be addressed because it's 
intolerable. 



Q # Also in the appropriations 
• hearings this year you raised 
some questions regarding court 
security. What are the issues in this 
area? 



A 



# We're going to bend over 

• backwards to be sure that the 
Judiciary is as safe as we can make it. 
That's the keystone to the whole 
process. Security is absolutely critical 



and it will be properly funded. 
However, we do want to know where 
the money is going so that we can 
have some oversight. For the current 
fiscal year we gave a $40 million 
increase, which is 30 percent more 
than the previous year. It was justi- 
fied in part on the need to fund court 
security officer (CSO) positions that 
we thought were already funded 
through increases that had been 
provided in previous years. We 
wrestled with that last year. For FY 
99 the request includes a substantial 
number of positions for existing 
courts that we thought already have 
been brought up to standard. The 
end result of the scrutiny that the 
Judicial Conference and our subcom- 
mittee have exercised is that the 
program today is better managed by 
the U.S. Marshals. We're getting to a 
point where the Marshals' current 
CSO staffing for each court is ap- 
proaching the staffing standard for 
CSO positions. The next step will be 
to adopt a similar system for court 
security equipment, and hopefully 
we will achieve a court security 
management system in which we can 
have full confidence. 



Q # Although the issue of 
• courthouse construction 
funding will not come before your 
subcommittee, the full appropria- 
tions committee will consider such 
bills. As you have a unique perspec- 
tive on the Judiciary's increasing 
workload and its aging courthouses, 
how would you view proposed 
funding for courthouses. 

A. Of course our subcommit- 
• tee doesn't handle construc- 
tion, but being on this subcommittee 
gives me a little bit better view of what 
the needs are than somebody else. The 
courts need more space and better 
space, but the cost of ongoing projects 



See Interview on page 12 



11 



The Third Branch u May 1998 



Interview continued from page 11 

has resulted in a hold on new ones. 
We're still under the budget caps from 
last year, especially for new projects, 
and of course I have to defer to the 
authorizing committees, the Treasury, 
Postal Appropriations Subcommittee, 
to make those decisions. 



Q # You have encouraged the 
• Judiciary to pursue cost- 
savings, especially in the area of 
videoconferencing and teleconferenc- 
ing. What is your assessment of the 
progress made by the Judiciary in this 
area? 

A, I was very pleased to tape 
• the introduction for the 
inaugural broadcast of the Federal 
Judicial Center's Satellite Television 



Network. I think that the new technol- 
ogy age is especially exciting for the 
courts because of the geographic 
distances that the courts have to 
operate in, and the need for some sort 
of uniformity in the positions, secu- 
rity, and training. That's a unique 
attribute that teleconferencing offers 
the courts. It also can save travel 
costs. So I'm very excited about the 
teleconferencing center and the 
interlocking of a computer system 
nationwide. 



Q 



# Any final comments? 



A # The Judiciary in this country 
• is facing perhaps its most 
vigorous challenge. The modern age 
is demanding more and more of 
judges — and I don't mean intelligence 
and research — but in terms of time. I 



think we've just gotten started. While 
it's going to be an exciting time- for 
the world, it is really a demanding 
time for the court system to try and 
keep up with a world thafs changing 
underneath our feet, sometimes 
almost faster than the eye can se<- I'm 
a lawyer so I can say this: lawyers 
and courts are tradition-based, and 
their reliance on rules and the legal 
process and the status quo may keep 
them from moving into the modern 
age. The courts have to modernize, 
have to use modern procedures and 
adapt to the world's way of doing 
business, particularly in research. 
I think that the courts face their 
biggest challenge right now in 
just keeping up with modern tech- 
nology. You probably can say the 
same for business, Congress, or any 
other profession. The speed at 
which technology is changing is 
phenomenal. £^ 



> 



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THIRD 





Chief Justice Raises Concerns On Federalization 



Chief Justice William H. Rehnquist, 
n addressing the American Law 
nstitute's annual meeting last month, 
uestioned how much of the complex 
vstem of legal relationships in this 
ountry should be determined in 
Washington, and how much by state 
nd local governments. 

Rehnquist was referring to what he 
ailed the propensity of Congress and 
ie President "to enact more and 
lore legislation which brings more 
nd more cases into the federal court 
^stem" — a concern he voiced in his 
?97 annual report. He singled out 



two juvenile crime bills pending 
before the House and Senate as 
examples of legislation that would, if 
enacted, "be the latest in a series of 
laws passed by Congress that have 
expanded the jurisdiction of the 
federal courts." 

"These Senate and House bills 
raise the same concerns because they 
contain nearly identical provisions," 
said the Chief Justice. "First, both bills 
eliminate the traditional preference 
for state prosecutions of juvenile 
defendants, particularly if the juvenile 
is to be prosecuted as an adult. 




High-Profile 

Trials 
Showcase 
Technology 



Bankruptcy Reform Bill Would Add Judgeships pg. 2 

Videoconferencing Links Federal Courts and Public .... pg. 6 
Appellate Commission Wraps Up Hearings...... pg. 9 



Current law favors state prosecu- 
tion unless the government certi- 
fies to the district court that (1) the 
state cannot or will not take 
jurisdiction; (2) the state's juvenile 
programs are inadequate; or (3) the 
offense is a violent crime or a drug- 
trafficking offense and there is a 
substantial federal interest in- 
volved in the case," Rehnquist said. 
"Either of the juvenile crime bills 
presently before Congress would 
eviscerate this traditional deference 
to state prosecutions, thereby 
increasing substantially the poten- 
tial workload of the federal Judi- 
ciary." 

In 1997, the number of criminal 
cases reached 50,363, the highest 
level since 1933. Ending the 
preference for state prosecution 
and prosecuting juveniles as adults 
in federal courts, would, according 
to Rehnquist, "exacerbate the 
problem revealed by these num- 
bers because adult criminal pro- 
ceedings are far more time-con- 
suming than their juvenile counter- 
parts." Rehnquist also cited the 
more formalized structure of adult 
proceedings and the likelihood that 
adult convictions and death 
penalty cases may more likely be 
appealed, all of which adds to the 
federal caseload. 

Senate Judiciary Committee 
chair, Senator Orrin Hatch (R-UT), 
and Senator Jeff Sessions (R-AL), 
chair of the Youth Violence Sub- 
committee, responded to the Chief 
See ALI on page 2 



t, 



ALl continued from page 1 

Justice in a joint letter. Saying that 
the committee "does not intend 
or expect a substantial increase in 
the number of juvenile cases adjudi- 
cated or prosecuted in federal court," 
the senators wrote that no conduct 
that is not a federal crime now will 
be if this provision becomes law. 
"We are, of course, mindful of the 
concerns you have raised," the letter 
read. "We are particularly sensitive 
to the fact that, in recent years, 
Congress has made federal criminal 
offenses of conduct that, in the past 
have only been 
state crimes. As 
you have noted, 
this expansion of 
concurrent state 
and federal 
criminal jurisdic- 
tion has implica- 
tions for the 
duties and 
workload of the 
federal courts. 
Certainly, when 
there is concur- 
rent jurisdiction 
over an offense 
and an offender, 
principles of 

comity and the traditional primacy 
of states in criminal matters dictate 
that the presumption in both adult 
and juvenile cases should be in favor 
of state prosecution, absent an 
overriding federal interest in the 
case." They went on to assure the 
Chief Justice that this general policy 
would be followed in the revisions to 
the federal juvenile code. 

The Long Range Plan for the Federal 
Courts, adopted by the Judicial 
Conference in 1995, recommends 
that federal courts should only 
have criminal jurisdiction in five 
types of cases: offenses against the 
federal government or its inherent 
interests; criminal activity with 
substantial multistate or interna- 
tional aspects; criminal activity 
involving complex commercial 



ran 



mmnni 



:p ft II it ft 



. » 



Chief Justice William H. Rehnquist 



or institutional enterprises most 
effectively prosecuted using federal 
resources or expertise; serious 
high-level or widespread state or 
local government corruption; and 
criminal cases raising highly sensi- 
tive local issues. 

Referring to this recommendation, 
the Chief Justice said, "There is, I 
hasten to say, no reason why Con- 
gress should slavishly follow the 
recommendations of the Judicial 
Conference. But the Long Range Plan 
is based not simply on the prefer- 
ences of federal judges, but on the 
traditional principle of 
federalism that has 
guided this country 
throughout its existence. 
It is a principle enunci- 
ated by Abraham 
Lincoln in the nine- 
teenth century and 
Dwight Eisenhower in 
the twentieth century: 
matters that can be 
handled adequately by 
states should be left to 
them; matters that 
cannot be so handled 
should be undertaken 
by the federal govern- 
ment. Reasonable minds 
will differ on how this very general 
maxim applies in a particular case, 
but the question which it implies 
should at least be asked." 

The Chief Justice also cited the 
Anti-Car Theft Act of 1992, the 
Violence Against Women Act of 
1994, the Freedom of Access to Clinic 
Entrances Act of 1994, the Child 
Support Recovery Act of 1992, the 
Animal Enterprise Protection Act of 
1992, and the arson provisions 
added to Title 18 in 1993 as examples 
of legislation expanding the jurisdic- 
tion of the federal courts. "[Ojne 
senses from the context in which 
they were enacted that the question 
of whether the states were doing an 
adequate job in this particular area 
was never seriously asked," 
Rehnquist told ALI members. 4k^ 



Senate Bankruptc 
Bill Would Requiri 
Travel Reports 



S. 1301, the Consumer Bankruj 
Reform Act of 1998, a bill which 
substantially amends the bankruj 
statute, and also adds bankruptcy 
judgeships, was approved by the 
Senate Judiciary Committee just 
before Congress recessed for its 
Memorial Day district work peric 
Action on S. 1301 may occur in th 
Senate before the end of July, afte 
Congress returns from the Indepe 
dence Day Holiday period. The 
House Judiciary Committee ap- 
proved its version of the bankrup 
reform legislation, H.R. 3150, and 
full House passed the bill in the 
second week of June. This bill doe 
not contain bankruptcy judgeship 
The Judicial Conference has asl 
Congress to create seven permane 
bankruptcy judgeships and 11 
temporary bankruptcy judgeships 
convert two existing temporary 
bankruptcy judgeships to perman 
positions, and extend the terms of 
three other existing temporary 
judgeships. A House bill, H.R. 159 
(the Bankruptcy Judgeship Act of 
1997), which passed in the first 
session of the 105th Congress, 
would authorize seven new perm<' 
nent bankruptcy judgeships and 1 
temporary judgeships, and would 
extend a temporary judgeship in 
the District of Delaware for five 
years. S. 1301 creates 18 temporar) 
bankruptcy judgeships and extend 
the terms of five existing temporar 
bankruptcy judgeships. Upon Sen; 
passage of S. 1301, differences 
between the House and Senate bill 
would be resolved in conference. 
When the Judiciary Committee 
considered S. 1301, an amendment 



The Third Branch 



lune 1998 



rreating the new bankruptcy 
udgeships was offered by subcom- 
nittee chair Senator Charles E. 
jrassley (R-IA) that included a 
wovision on judges' travel, 
'reviously, Grassley had asked 
he General Accounting Office to 
tudy the basis upon which the 
Conference makes its requests for 
Article III judgeships and bank- 
uptcy judgeships. He also has 
uestioned the amount and type of 
•avel by judges. The Grassley 



In other legislative news: 

Oversight Hearing Scheduled 

The House Judiciary Subcommit- 
tee on the Courts and Intellectual 
Property held a judicial branch 
oversight hearing on June 11. Judi- 
cial Conference Executive Commit- 
tee Chair Judge Wm. Terrell 
Hodges (M.D. Fla.), Administrative 
Office Director Leonidas Ralph 
Mecham, and Federal Judicial Center 
Director Judge Rya Zobel discussed 
Judicial Conference activities, the 
operations of the Administrative 
Office, and the Federal Judicial 
Center. More information on the 
hearing will be in next month's issue 
of The Third Branch. The last judicial 
branch oversight hearing was in 
1993. 

• • • 

S. 1892, a bill that would keep a 
person closely related to an Article m 
udge from serving on the same 
:ourt, has been approved by the 
senate Judiciary Committee and is 
waiting floor action in the Senate, 
rhe bill was introduced in the Senate 
n the wake of the nomination of 
William A. Fletcher to the Ninth 
lircuit, where his mother, Judge 
Jetty Fletcher, currently sits. Judge 
Letcher has said she would take 
senior status should her son be 
:onfirmed to the Ninth Circuit. A 
udicial anti-nepotism bill, H.R. 3926, 



amendment to S. 1301, as adopted in 
committee markup, requires all 
bankruptcy judges to report all non- 
case related compensated travel, 
whether official or not, to the chief 
bankruptcy judge of the district. The 
reports would include the name of 
the judge, the cost, subject and 
purpose of the travel, and the 
number of days involved, and would 
be forwarded to the Administrative 
Office annually. The AO, in turn, 
would be required to compile a 



also has been introduced in the 
House. William Fletcher's nomina- 
tion has been reported out of the 
Judiciary Committee and is await- 
ing floor action. 

• • • 

S. J. Res. 44, proposes an 
amendment to the Constitution of 
the United States to protect the 
rights of crime victims. Introduced 
by Senator Jon Kyi (R-AZ), this 
joint resolution is the latest in a 
succession of bills and proposed 
constitutional amendments ad- 
dressing victims' rights. The 
Judicial Conference prefers a 
statutory approach to victims' 
rights over a constitutional amend- 
ment, but the momentum in Con- 
gress for a constitutional amend- 
ment continues to build. S. J. Res. 
44 currently has 40 co-sponsors, 
and Senate Majority Leader Trent 
Lott (R-MS) has indicated there 
may be floor time for the amend- 
ment if it is reported out of com- 
mittee before mid-year. 

• • • 

S. 2083, the Class Action Fair- 
ness Act of 1998, was introduced 
by Senators Grassley and Herb 
Kohl (D-WI) in mid-May. In the 
House, Representative Henry 
Hyde (R-IL) introduced H.R. 3789, 
the Class Action Jurisdiction Act of 
1998. The bills would expand 
federal jurisdiction over class 
action suits in two respects. 



national report to be sent to Con- 
gress. Members of Congress already 
prepare a similar report on their 
travel. 

Bankruptcy cases filed in the U.S. 
now number nearly 1.42 million 
annually. The number of bankruptcy 
cases has risen steadily over the last 
eight 12-month periods, and the 
increases underline the acute need 
for new bankruptcy judgeships. New 
bankruptcy judgeships were last 
created in 1992. 



First, the bills would amend 
section 1332 (diversity of citizen- 
ship) of Title 28, to provide original 
jurisdiction in the district courts 
by lowering the threshold for 
both the diversity of citizenship 
and the amount-in-controversy 
requirements. Second, the bills 
permit removal of multistate class 
actions to federal court. The bills 
also would 

□ Require that notice of proposed 
settlements (as well as all class 
notices) be in clear, easily under- 
stood language and include all 
material settlement terms, 
including the amount and source 
of attorney's fees. 

□ Require state attorneys general 
to be notified of any proposed 
class settlement that would affect 
the residents of their states. 
Notice also must be provided to 
the Department of Justice. 

n Provide that attorney's fees in all 
class actions must be a reason- 
able percentage of actual dam- 
ages and actual costs of comply- 
ing with the terms of the settle- 
ment. 

□ Require the imposition of sanc- 
tions for a violation of Rule 11 of 
the Federal Rules of Civil Proce- 
dure. The nature and extent of 
the sanctions would remain 
discretionary. 



. i 



. i 



The Third Branch m June 1998 



Courtroom Make-Over Shows Value oi Electronic Technology 



Built in the 1960s, the 
Denver courthouse was not 
equipped to handle two 
high-profile trials 

In anticipation of the special 
needs of two high-profile criminal 
trials, the Denver courtroom of 
Chief Judge Richard Matsch was 
brought into the electronic age with 
some of the best technology available 
to federal courts. The technology, 
which by all accounts helped the 
proceedings run smoothly, 
is being used increasingly in ^ m tm 
federal courts throughout 
the country to help bring 
economy and efficiency to 
the trial process. 

The Denver courthouse 
was built in the 1960s, well 
before video monitors, 
much less personal comput- 
ers, were considered 
necessary components of a 
trial. For example, to allow comput- 
ers in the courtroom, new conduit 
had to be laid in the concrete 
subflooring for data communication 
network connections. The heating 
and ventilation systems also were 
upgraded to ensure the comfort of 
participants and public during what 
promised to be lengthy procedures, 
and to accommodate a profusion of 
electronic equipment. 

Like these systems, much of the 
electronic technology added to the 
courtroom is unobtrusive. In fact, 
from a juror's perspective, the 
courtroom's make-over of the older 
traditional courtroom to the new 
electronic courtroom may seem less 
than dazzling. That was the intent. 

"The technology shouldn't run the 
courtroom," said clerk of court James 
Manspeaker, "it should meet the 
court's requirements and function 
for the duration of a trial without 
problems. In short, it should help us 



conduct the most efficient proceed- 
ing possible. I think that's what we 
accomplished in Judge Matsch's 
courtroom." 

More federal courts are making 
use of electronic technologies in 
courtroom situations and are adopt- 
ing those aspects — from prerecorded 
videotape of testimony or arguments 
to the computer imaging of exhib- 
its^ — that best answer their needs. 
Judge Edward W. Nottingham (D. 
Colo.), chair of the Judicial Confer- 
ence Committee on Automation and 



"The technology shouldn't 
run the courtroom... it 
should help us conduct the 
most efficient -proceeding 
possible. " 



Technology, has been a proponent of 
the electronic courtroom and has 
encouraged his committee to pursue 
the idea. "Electronic technology," 
said Nottingham, "assists the jury in 
a clearer understanding of the case; it 
helps the fact-finders; and, in the 
way it presents evidence, the tech- 
nology appears to increase efficiency 
so that trials may be conducted in 
less time." A study is underway in 
federal courts across the country to 
determine the feasibility of procuring 
and installing electronic technolo- 
gies. By January 1999, the committee 
expects to make recommendations 
on nationwide funding for electronic 
courtrooms. 

White Noise and Realtime 

The audio system in Matsch's 
courtroom was designed using the 
Guide Specification for Modification/ 
Installation of Audio Systems in U.S. 
Courthouses, prepared by Admini- 



A 



strative Office staff in cooperatior 
with Polysonics Corporation. 
Microphones with mute buttons 
were mounted on the bench, the 
two counsels' tables, and the 
clerk's desk. The judge's bench al< 
had a small omni-directional micr 
phone for recording bench confer- 
ences. Microphones were 
mounted on the witness 
stand and the attorneys' 
podium. 

Three zones of ceiling 
speakers controlled the 
volume of proceedings in 
different parts of the 
courtroom. For those times 
when counsel approached 
the bench and the judge 
wanted the conversation 
to be confidential, white noise cou 
be piped to the jury box effectivel) 
masking the conversation. 

An audio feed in the courtroom 
went to a nearby control room for 
external transmission and also to a 
two-channel infrared emitter in thi 
courtroom, one channel for wirele; 
headphones for listening assistanc 
and the second channel for simultc 
neous interpretation. With this 
system, an interpreter did not neec 
to be in the courtroom. During the 
trials, realtime transcription of the 
proceedings was available from th 
court reporter, who used an intern, 
courtroom network and made the 
transcript available twice a day. 

Visual Presentation 

An array of electronic monitors i 
the courtroom guaranteed a clear 
view of documents, evidence and 
videotapes. Two large 37" monitor; 
were provided for jurors and the 
gallery. Smaller monitors were at tl 
judge's bench, the witness stand, th 
podium, and sunk into each 
counsel's table. When videotapes, 
photographs, documents, physical 
evidence, or computer-generated 



hird !' ranch 



June 199H 




ges were 

Dduced in the trials, 
r could be viewed on all 
nonitors when placed on a 
al presenter next to the attor- 
i podium or when downloaded 
\ laptop computers. The 
enter was equipped with a 
>creen preview monitor and an 
)tation pen. A second annotation 
was located at the witness 
d. 

*ie particularly unique feature of 
ideo system — at least for a 
ral courtroom — was mandated 
le Antiterrorism and Effective 
h Penalty Act of 1996. That law 
ired trial courts to order closed 
it televising of proceedings to 
lit victims of crime to watch 
inal trial proceedings in cases 
•e the venue of the trial is 
ged out of the state in which the 



The floor plan shows placement of 
electronic technology within a representation 
of the Denver courtroom. 



case was initially 
brought and more than 
350 miles from the location 
in which those proceedings 
originally would have taken place. 

As a consequence, for the duration 
of the two trials in Denver, a single 
video camera with a fixed lens was 
mounted in a wall pocket behind 
optical glass above the public 
entrance door of the courtroom. The 
camera provided a wide view of only 
the witness stand, the judge's bench, 
the attorneys, and the defendant. A 
control room in the Denver court- 
house coordinated transmission of 
the video camera picture and accom- 
panying audio to an auditorium in 
Oklahoma City. 

The digital intercity transmission 
service, based on fiber optics and 



built specifically to accommodate the 
closed-circuit transmission, was 
available to the court as needed 
or within 15 minutes of the court's 
request. Encryption devices were 
included at both ends of the transmis- 
sion and were under the control of 
court-appointed personnel. Most 
important, over several months of 
hearings and trial proceedings, the 
transmission was secure, uninter- 
rupted and unintercepted. 

What, if anything, would 
Manspeaker do differently if he 
were starting over to construct an 
electronic courtroom? "Not a thing," 
Manspeaker said. "Everything we 
needed was in place. We asked for 
it, and the vendors and the Adminis- 
trative Office saw that it was 
installed." £w 



ii ] 

i: | 

ii ' 



The Third Branch m June 1998 



5 






Videoconferencing Links Federal Courts and Public 



A circuit judge in the Tenth 
Circuit is unable to travel, but can 
participate in appellate proceedings 
when videoconferencing links the 
court in Cheyenne, Wyoming, to the 
court in Denver, Colorado. In the 
Western District of Texas, the 
testimony of an emergency room 
physician in Del Rio is heard by the 
jury, defendant, and lawyers in a 
trial three hours away in San Anto- 
nio. 

From its beginning as a pilot 
program in a handful of federal 
appellate, district, and bankruptcy 
courts, videoconferencing has grown 
to link federal courts with remote 
locations, prisons, and far-flung 
divisional courts. The U.S. attorney's 
offices, the U.S. Marshals Service, 
and the Federal Bureau of Prisons 
also have videoconferencing pro- 
grams that are accessible to the 
courts or are conducted in coopera- 
tion with federal court programs. 
The videoconferencing experience, 
although not for all judges or counsel 
who may prefer face-to-face meet- 
ings or who may feel there is an 
unfair advantage to only one party 
being present in the courtroom, is 
gaining acceptance in federal courts 
across the country. 

Appeals Courts 

In appellate courts, video- 
conferencing lets attorneys, parties, 
and judges save the time they might 
expend travelling to attend oral 
arguments, rehearings en banc, 
settlement conferences and Appel- 
late Rule 34(f) decisions on the briefs. 
Appellate courts are an especially 
suitable venue for videoconferencing 
because, unlike trial courts, law, not 
evidence, is argued at this level. 
Witness testimony is not part of the 
appellate proceedings, documents do 
not need to be produced for viewing 
by a jury, and there are a smaller 
number of participants. 



Videoconferencing offers appellate 
panels increased scheduling flexibil- 
ity and time savings. In some circuits 
where motions proceedings are 
handled routinely by teleconferenc- 
ing, videoconferencing may be an 
improvement. 

Currently, the Second, Tenth and 
District of Columbia Circuits make 
use of videoconferencing. With 
support from the Administrative 
Office, the Tenth Circuit began using 
videoconferencing with oral argu- 
ments in criminal cases, then ex- 
panded to civil cases, and later 
accommodated judges in remote 
locations at Kansas City, Wichita and 
Cheyenne. The process has been 
accompanied by some technological 
tweaking, according to Judge John 
C. Porfilio (10 th Cir.). "We've gone to 
three video cameras for a larger 
image of the bench for the benefit of 
the lawyers, and we've increased the 
broadcasting power. We'd like to 
improve the delay time, too. It's 
disconcerting at first to see lips move 
and then hear the voice. However, 
I've found that the lawyers who 
participate in videoconferenced 
sessions, once they get over the 
initial impact of arguing in front of a 
camera, argue just as they would in a 
courtroom." And, Porfilio says, 
lawyers don't mind going to Okla- 
homa City from Tulsa, for example, 
if it saves them a day trip to Denver. 
In fact, last September the situation 
was reversed when the court sat in 
Oklahoma City and the proceedings 
were videoconferenced to lawyers in 
a Denver courtroom. 

District Courts 

Following a two-year pilot study 
conducted in four district courts, the 
Judicial Conference, in July 1996, 
authorized funding to district courts 
meeting certain caseload and other 
criteria for the use of videocon- 
ferencing in prisoner civil rights 



pretrial proi eedingi. Presently 34 
district courts have qualified for 
participation in the project, contin- 
gent on the satisfaction of all project 
criteria, including the requirement 
that program costs are shared with 
the participating state, local, or 
federal prison authorities. This 
Judicial Conference initiative antici- 
pated the 1996 Prison Litigation 
Reform Act, which included the 
requirement that federal courts "to 
the extent practicable," conduct 
prison condition pretrial proceeding 
"in which the prisoner's participa- 
tion is required or permitted" by 
telephone, videoconference, or othei 
telecommunications technology, 
without removing the petitioner 
from the prison facility. 

While the chief value of videocon 
ferencing prisoner proceedings lies 
in the travel time saved by judicial 
officers and improved scheduling, 
videoconferencing also eliminates 
security concerns involved in the 
transportation of prisoners. The 
technology is routinely used for 
pretrial hearings with inmates to 
screen civil rights complaints. 
However, courts also use video- 
conferencing for other matters when 
there are compelling geographic anc 
scheduling concerns. 

Judge Fred Biery (W. D. Tex.) 
remembers not so long ago when th< 
Del Rio courtroom in the Western 
District of Texas was regularly 
jammed with 50 to 60 defendants 
awaiting sentencing, while another 
50 people would be awaiting ar- 
raignment. 

"In the Western District of Texas,' 
said Biery, "we've seen the number 
of felony defendants go from 150 
to 800 in the last five years. Most 
of these are handled in the Del 
Rio divisional courthouse where 
there is no full-time judge." Accord- 
ing to Biery, defendants for the once 
a-month proceedings at the court 
were bused from all over the district 

"We could get through 50 to 60 
sentencings a day if we moved alon£ 



The Third Branch m June 1998 



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Operational 
Pending 



Idaho 

(DistricVB»nknjplcy) 

Boise 

Pocatello 

Coeur DAIene 



Mont. 

(District/Bankruptcy) 

• Butte 

Billings 

Helena 

Great Falls 

Missoula 



C.O.Cal. 

ftaHtnjxcy) 

| Los Angeles 

Santa Ana 

Riverside 

Santa Barbra 

»i Fernando Valley 




e map notes 

>se courts across the 

mtry currently using 

'ecKonferencing 

hnology. Courts whose programs are 

mding" have been either approved for 

'ding and are in the process of purchasing 

I installing equipment, or they are 

itingfor an agreement on shared expenses 

h a prison site or the U.S. Marshals 

vice. 



i didn't take lunch," said Biery. 
Iiese weren't complicated cases. 
t it was very impersonal." Several 
•nths ago, the district began video- 
iferencing sentencings from the 
1 Antonio court. "We try to do 
ween eight and 10 sentencings 
:ry Thursday morning from San 
tonio," said Biery. "We do them 
ividually and we give them the 
mtion I think they deserve. The 
jorify of the defendants don't 
ak English, so we use a translator, 
ink with the videconferencing 
defendant has a better perspec- 
I on what is happening. With the 
leras, it's like they are sitting six 
away. There is a one-on-one 
itionship that just wasn't possible 
3re." 

>ome courts have taken the 
ject a step further by using the 
inology to take witness testimony 
rials. Other courts plan to expand 
ther courtroom proceedings and 
;t are regularly using video- 



conferencing for administrative and 
training functions. However, in 
the federal courts, the legality of 
using videoconferencing to con- 
duct certain criminal proceedings is 
in question. The Ninth Circuit has 
held that videoconferencing of 
arraignments violates Rules 10 and 
43 of the Federal Rules of Criminal 
Procedure, which together require 
the presence of the defendant in 
open court. 

Concerns also have been raised 
about the use of videoconferencing 
for in-court proceedings involving 
defendants represented by attorneys 
appointed under the Criminal Justice 
Act. Some of these concerns may be 
allayed by the success of its use in a 
steadily increasing range of proceed- 
ings and its obvious advantages to 
parties under special circumstances. 
Duke Argetsinger of the AO's Court 
Administration Policy Staff, who has 
worked extensively on video- 
conferencing projects since the 



inception of its use in federal courts 
observed, "Videoconferencing 
cannot replace the physical presence 
of a judge. It is a tool to enhance and 
supplement the services that the 
court provides to the public. Under 
unique geographic and caseload 
circumstances, it enables the court to 
do its work better." 

Bankruptcy Courts 

Videoconferencing in the bank- 
ruptcy courts is used for a wide 
range of contested and non-contested 
matters. Bankruptcy courts can make 
good use of videoconferencing 
because of the numerous hearings 
that are required under federal 
bankruptcy law. The use of 
videoconferencing to replace travel 
by the judge, counsel, and parties 
can produce significant savings in 
travel time and costs. For example, 
under a pilot program conducted by 
the Judicial Conference, the U.S. 

See Video on page 12 



7 



The Third Branch m June 1998 



^JUDICIAL MILESTONES 



Appointed: Robert T. Dawson, as 

U.S. District Judge, U.S. District 
Court for the Western District of 
Arkansas, April 15. 

Appointed: Garr M. King, as U.S. 
District Judge, U.S. District Court 
for the District of Oregon, May 1. 

Appointed: Michael Patrick 
McCuskey, as U.S. District Judge, 
U.S. District Court for the Central 
District of Illinois, May 4. 

Appointed: G. Patrick Murphy, as 

U.S. District Judge, U.S. District 
Court for the Southern District of 
Illinois, May 4. 

Appointed: Johnnie B. Rawlinson, 

as U.S. District Judge, U.S. District 
Court for the District of Nevada, 

May 2. 

Appointed: E. Robert Goebel, as 

U.S. Magistrate Judge, U.S. District 
Court for the Western District of 
Kentucky, May 11. 

Appointed: John A. Houston, as 

U.S. Magistrate Judge, U.S. District 
Court for the Southern District of 
California, April 27. 

Appointed: E. Clayton Socfield, 
III., as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of Georgia, May 4. 

Appointed: Nancy A. Vecchiarelli, 

as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of Ohio, April 20. 

Elevated: Bankruptcy Judge James 
D. Gregg, to Chief Judge, U.S. 
Bankruptcy Court for the Wes- 
tern District of Michigan, succeed- 
ing Laurence E. Howard, Febru- 
ary 27. 



Senior Status: Judge William D. 
Browning, U.S. District Court for 
the District of Arizona, May 14. 

Senior Status: Judge Lenore C. 
Nesbitt, U.S. District Court for 
the Southern District of Florida, 
July 19. 

Senior Status: Judge Joseph H. 
Rodriguez, U.S. District Court for 
the District of New Jersey, May 22. 

Retired: Magistrate Judge 
Robert A. Del Campo, U.S. 
District Court for the Central 
District of California, May 11. 

Retired: Magistrate Judge 
Ronald A. Fonseca, U.S. District 
Court for the Eastern District of 
Louisiana, May 20. 

Retired: Magistrate Judge Robert 
B. O'Connor, U.S. District Court 
for the Western District of Texas, 
March 31. 

Resigned: Magistrate Judge 
Tracy L. Myers-Dumm, U.S. 
District Court for the District of 
Hawaii, May 16. 

Deceased: Judge Patrick E. Carr, 

U.S. District Court for the Eastern 
District of Louisiana, June 1, 
1998. 

Deceased: Judge David W. Dyer, 

Court of Appeals for the Eleventh 
Circuit, June 7, 1998. 

Deceased: Judge George F. 
Gunn, Jr., U.S. District Court for 
the Eastern District of Missouri, 
May 20, 1998. 

Deceased: Judge Daniel H. 
Huyett, III, U.S. District Court for 
the Eastern District of Pennsylva- 
nia, May 1. 



THIRD 

BRANCH 



Published monthJy by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the above 
address or to redmond(gteo.uscourts.gov. 



JUDICIAL BOXSCORE 



As of June 1, 1998 




Courts of Appeals 




Vacancies 


22 


Nominees 


13 


District Courts 




Vacancies 


53 


Nominees 


30 



Court of International Trade 
Vacancies 1 

Nominees 1 



Courts with 
"Judicial Emergencies" 



34 



For more information on vacan- 
cies in the Federal Judiciary visit 
our website at www.uscourts.gov. 



The 'I hmt Hranch m June 1998 



or Judges, a Recusal List Reminder 



Title 28 U.S.C. § 455 places on all 
dges the responsibility for avoiding 
nflicts of interest between their 
tancial interests and their assigned 
ses. It requires a judge not only to 
informed about his or her per- 
nal financial interests but also to 
ike a reasonable effort to be 
brmed about the personal finan- 
1 interests of his or her spouse and 
nor children. Recent media 
/erage of judges who have failed 
stay current should be fair warn- 
; of the importance of updating 
ancial interest lists. 
Section 455 is mirrored by 
non 3C(2) of the Code of Conduct 
United States Judges, which 
poses on judges a duty to keep 
armed so that they can recuse 
mselves from cases in which they 
re disqualifying financial hold- 
;s. In accordance with Canon 
;i)(c), judges are required to 
use themselves whenever they or 
ir spouses or minor children 
iding in the household have "a 
incial interest in the subject matter 
:ontroversy or in a party to the 
ceeding." 

Administrative Office Director 
>nidas Ralph Mecham wrote to 
ges in February emphasizing the 
>ortance of up-to-date financial 
>rmation 7 as did Judges A. 
rnond Randolph, chair of the 
iference Committee on Codes of 
iduct, and Frank Magill, chair of 
Conference Committee on 
ancial Disclosure, in a subsequent 
norandum to all judges. Mecham 
?d that it is important to ensure 
: appropriate screening media- 
ns are in place to prevent possible 
flicts from occurring. "Most 
rts already have such screening 
:edures in place in the clerk's 
:e, in chambers, or both," 
:ham said. "Nevertheless, it is 
ays prudent to ensure that the 
ncial information these proce- 



dures rely upon is complete and up- 
to-date." Randolph and Magill also 
urged that care should be taken to 
include all disqualifying financial 
interests — whether or not recorded 
on other reporting forms — when a 
recusal list is compiled. 

The most common form of 
disqualifying financial interest is the 
ownership or control of securities. 
However, a judge's need to recuse 
can be minimized, depending upon 
the type of investment. For example, 
mutual fund investments will 
usually eliminate the risk of conflicts 
of interest involving individual 
companies, and the number of stocks 
can be limited to an easily managed 
number. Turning over investments 
to a trust or money manager, how- 
ever, does not relieve a judge of his 



or her legal and ethical duties to 
remain informed about financial 
holdings. 

In some courts, clerks of court 
maintain the recusal lists. In others, 
judges or their secretaries keep 
track of disqualifying connections. 
Even if the court has automated 
the process, automatically notifying 
judges of conflicts, the system is 
only as good as the information 
entered. Judges should review and 
update lists on a regular basis. An 
investment list can be supplied to 
the court officials responsible for 
reviewing new case assignments so 
that cases are not assigned to judges 
who own stock in a party. The list 
also can be used in chambers for 
comparison with the current 
caseload to ensure that an inherit- 
ance, gift, or new purchase of stock 
does not involve any parties in 
pending cases. 



Appellate Commission Wraps Up Hearings 



The governor of Washington, a 
U.S. senator, a state attorney 
general, bar association presi- 
dents, law professors and numer- 
ous federal judges were among 
more than 70 witnesses who 
testified at public hearings held by 
the Commission on Structural 
Alternatives for the Federal Courts 
of Appeals in San Francisco and 
Seattle in May. The hearings were 
the last in a series of hearings held 
since March. 

The Commission also has 
conducted hearings in Atlanta, 
Dallas, Chicago, and New York. A 
total of 90 witnesses testified at 
these public hearings, and state- 
ments and comments were 
received from dozens more. 

The Commission will spend the 
next few months reviewing the 



submitted information, gathering 
additional data, analyzing the 
findings, and drafting an initial 
report for public comment. 

Congress created the Commis- 
sion late last year to study the 
structure and alignment of the 
federal appellate system, with 
particular reference to the Ninth 
Circuit. In December 1998, the 
Commission is to report to the 
President and Congress any 
recommendations for changes in 
circuit boundaries or structure, 
consistent with fairness and due 
process. Retired Supreme Court 
Justice Byron White is chairman of 
the Commission. 

More information about the 
Commission and testimony from 
all hearings can be found at http:// 
app.comm.uscourts.gov/. 



. i 



The Third Branch 



June 1998 



INTERVIEW 



Finding the Balance in Federal-State Jurisdiction : 

An Interview with Mge Stephen H. Andersen 



Judge Stephen H. Anderson was 
appointed to the U.S. Court of Appeals 
for the Tenth Circuit in 1985. A member 
of the Committee on Federal-State 
Jurisdiction since 1993, he steps down as 
chair of the committee in the fall after a 
three-year term. 



Q. What are the responsibilities 
• of the Committee on Fed- 
eral-State Jurisdiction? 

A. Broadly speaking, the 
• committee reviews congres- 
sional initiatives affecting the 
jurisdiction of the federal courts and 
the allocation of jurisdiction between 
the federal and state courts. Addi- 
tionally, the committee is charged by 
the Conference to serve as the liaison 
to the state courts. To enable us to 
perform this unique role effectively, 
the Chief Justice and the Judicial 
Conference authorized four state 
supreme court chief justices to serve 
among our 15 members. In addition, 
the committee works closely with the 
Conference of Chief Justices (CCJ), 
the policy-making body for the state 
courts, and the National Center for 
State Courts, its support organization. 

Q # You've chaired the commit- 
• tee since 1995. In that time, 
what have been some of the signifi- 
cant issues with which your commit- 
tee has dealt? 

A. It is impossible in this 
• interview to list all of the 
important issues that the Federal- 
State Jurisdiction Committee has 
addressed over the past few years. 
At any given time, we are following 
up to 20 bills, including both draft 



proposals and bills that have been 
introduced. 

Some of the more significant 
topics the committee has studied 
recently include property rights 
legislation, proposals to limit the 
remedial powers of the federal 
courts, prison litigation amendments, 
proposals to expand the jurisdiction 
of the Court of Federal Claims, mass 
tort litigation, and the constitutional 
structure of territorial courts. Also, 
many bills in Congress seek to alter 
the relationship between the states 
and the federal government. The 
committee studies such proposals to 
determine whether the unique roles 
of both court systems have been 
recognized. 

Q # How have federal-state 
• relations evolved during 
your tenure? 

A # The relations between the 
• federal and state judiciaries 
always have been good and have 
never been better. This positive 
relationship developed long before 
my tenure as chair, and I have 
sought to enhance this association. 
For example, I instituted for every 
committee meeting a Report from the 
State Courts, during which the senior 
chief justice member presents to the 
committee an overview of significant 
issues facing the state courts. Also, I 
have continued the valuable tradi- 
tion of attending the annual and 
mid-year meetings of the CCJ. I have 
been joined in representing the 
federal Judiciary by Judge Fred 
Motz, who was then a member of the 
committee, and also more recently 
by Chief Judge Henry Politz, who 
has been designated by the Executive 




Judge Stephen H. Anderson 



Committee as a liaison to the CCJ, as 
well as to our committee. I must add 
that our state-federal relationship is 
strong, in part, because of the 
harmonious relationship between 
staff of the National Center for State 
Courts and staff in the Office of 
Legislative Affairs of the Adminis- 
trative Office. 

I continue to believe that joint 
educational programs and seminars 
are excellent tools to improve the 
understanding of the inter-relation- 
ship of such courts. 



Q 



. How do the views of the 
• Conference of Chief Justices 



compare to those of the Judicial 
Conference? 

A # In recent years, the views 
• of the two policy-making 
bodies have been similar on numer- 
ous occasions, such as in the areas of 
property rights legislation, victims' 
rights, and health care legislation. 
But such consistency, when it occurs, 
is not entirely coincidental. Instead, I 
believe that it is one of the positive 
by-products of the strong relation- 
ship we are fostering between the 
state and federal judiciaries. We have 
listened to each other's viewpoints 
and thus have been able to develop 
more fully our recommendations to 
the Conference. When mutual 4 



The Third Hrum h 



]une 1998 




ncerns emerge, this commonality 
ihances congressional receptivity to 
e views of the Judicial Conference, 
rticularly when our view suggests 
at certain jurisdiction lies more 
propriately in the state courts. 

~*\ . How has the allocation of 

^ • jurisdiction between federal 
d state courts shifted? 

I . This allocation has been of 
A. • central concern to the com- 
ttee. During the past 10 years, 
ngress has sought frequently to 
ate federal court jurisdiction in 
as traditionally exercised prima- 
' by the state courts. This often 
urs with respect to specific crim- 
1 activity and has led to many 
>ates and state-federal conferences 
icerning federalization. But 
deralizing" a cause of action also 
be applied generally when Con- 
ss creates federal jurisdiction for 
litionally state court civil actions. 
Tie Federal-State Jurisdiction 
nmittee has studied numerous 
posals that would shift litigation 
n the state courts to the federal 
rts. A guiding principle for us has 
n the view of the Judicial Confer- 
? as stated in the Long Range Plan 
he Federal Courts. Congress 
uld be encouraged to conserve 
federal courts as a distinct 
cial forum of limited jurisdiction, 
ile certain criminal and civil 
3ns occasionally may justify 
insion of federal jurisdiction, 
i federalization efforts typically 
driven by political and popular 
sures that can be expected to 
inue. As a result, I think it will 
nportant for the Judiciary to 
inue to encourage Congress to 
ider the unique role intended by 
ronstitutional framers for the 
ral courts. 



| . As a representative of the 

• Judicial Conference, you've 
fied before congressional com- 



mittees a number of times on a 
variety of issues considered by your 
committee. Generally, how has 
Congress received the Conference 
views on legislation? 

A. Very favorably. Whether I 
• have testified in support or 
opposition to a bill, members of 
Congress have been receptive to the 
views of the Conference. A mutual 
respect exists between the legislative 
and judicial branches, and any 
opportunity to foster our communi- 
cation is appreciated on both sides. 

While letters often are sent to 
congressional leaders sharing our 
views of the Conference, testifying 
before Congress is an excellent 
opportunity to engage in a give-and- 
take on the potential implications of 
legislation for the federal courts. It 
reminds me, in a way, of oral argu- 
ments and the chance to explain with 
conviction the decisions of the 
Conference. Being subject to a five- 
minute time limit also is a humbling 
reminder of the restrictions we as 
judges place on lawyers appearing 
before us. 

Before we move on, I would like 
to take this chance to compliment the 
outstanding work of the staff of the 
AO's Office of Legislative Affairs, 
under the fine leadership of Mike 
Blommer, and in particular the staff 
of our committee, Karen Kremer and 
Mark W. BrasweU. Much of the 
informational sharing with Congress 
occurs at a staff level, and these 
efforts are ongoing and overwhelm- 
ing. The Judiciary should be aware 
of the valuable and effective behind- 
the-scenes work that is done by the 
Administrative Office staff, under 
the careful direction of Leonidas 
Ralph Mecham. 



Q. You also testified during the 
• last congressional session on 
H.R. 1544, the Federal Agency 
Compliance Act. The bill has Confer- 
ence support. Why? 



A. Simply stated, the Confer- 
• ence supports this bill 
because it brings respect to the rule 
of law. This support was announced 
officially in the Long Range Plan for 
the Federal Courts, when the Confer- 
ence approved a recommendation 
calling upon Congress to pass 
legislation that would generally 
prohibit agencies from adopting 
policies of non-acquiescence to 
controlling precedents of appellate 
courts. As an appellate judge, I have 
welcomed the opportunity to testify 
on the act and bring congressional 
attention to this issue. We were 
delighted that Representative George 
Gekas (R-PA) introduced this 
legislation and moved it successfully 
through the House of Representa- 
tives. Our committee staff now is 
providing assistance to the office of 
Senator Ben Nighthorse Campbell 
(R-CO), who has introduced a 
similar bill. 



Q. As an out-going chair, what 
• advice would you share with 
new committee chairs? 

A. Act cautiously. I cannot 
• think of any two words that 
could better describe what might 
serve as a dependable compass for 
others. So many issues come before 
the chair and the committee, many 
of which demand immediate atten- 
tion. It is often tempting, for ex- 
ample, to oppose immediately a 
bill or a provision that seems to be 
an attack on the Judiciary. Calm 
study, however, leads to a reasoned 
comment that will help the Confer- 
ence, and in turn Congress, to 
contemplate a bill's impact on the 
courts. As long as full debate is 
encouraged and seasoned advice is 
sought on an issue, I believe that 
committees can act with the degree 
of due process and careful delibera- 
tion that we have come to expect in 
our courtrooms. £^ 



11 



The Third Branch 



June 1998 



Video continued from page 7 

Bankruptcy Court for the Western 
District of Texas pioneered the use of 
videoconferencing to conduct 
hearings between divisional loca- 
tions 400 miles apart. The district 
now has expanded use of technology 
to four additional divisional loca- 
tions. Bankruptcy Appellate Panels, 
especially, find that videoconferen- 
cing eases scheduling, while reduc- 
ing travel time because panel judges 
are often separated by considerable 
distances within their circuits. 

In Iowa, federal courts are linked 
to the state's fiber optic network, 
which has one point of presence in 
each of the state's 99 counties. The 
network also can link to other sites 
throughout the country. An Iowa 
bankruptcy trustee recently used the 
network to link a meeting of credi- 



tors to a debtor in Vancouver, 
Canada. 

Bankruptcy Judge Lee Jackwig (S. 
D. Iowa) has used videoconferencing 
in bankruptcy hearings since 1996. 
To date, most hearings have been 
between Davenport and Des Moines, 
where Jackwig sits. "Instead of 
traveling six hours round trip to 
Davenport to handle routine matters 
every other month, I run down to the 
third floor in our courthouse and 
conduct the hearings. Now I'm 
'virtually' in Davenport every month 
and can be there with 10 minutes 
notice." At times Jackwig has had 
parties in up to five locations partici- 
pating in a videoconferenced hear- 
ing. "I try to maintain the traditional 
courtroom feel as much as possible," 
said Jackwig. "In the beginning, the 
camera is pulled back to show the 
bench, the door through which I'll 



enter, and the deputy standing to 
say 'All rise.' And everyone at the 
connecting site is expected to rise 
because they are part of the court- 
room." All parties at all locations are 
able to see each other without any 
delay in the picture or the sound 
because of the state's fiber optic 
network. 

Once the hearing begins, Jackwig 
likes to show a picture-within-a- 
picture on the video screen, of her 
sitting at the bench and the counsel 
table. Her own video screen shows 
the entire courtroom. "I feel I'm 
almost better able to assess the 
credibility of the witnesses on the 
videoconferencing screen," said 
Jackwig, "because in at least one of 
the trial courts, the judge has a 
partial view of the witness. When 
they're on the screen, I see them face 
to face." 



HE THIRD BRANCH 



Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

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U.S. Government Printing Office 1998-418-610-60015 







1 

v.1 



THE 



KRQ 



1^1 ^/iA/z-y 



BRANGi 




Newsletter 
of the 
Federal 
Courts 



Vol. 30 
Number 7 
July 1998 




itimony Shows Increasing Workload is Straining Judiciary's Resources 



use Holds Oversight 
iring on Judiciary 

n increasing workload is driving 
liciary-wide need for resources, 
ding adequate funding and 
ng, while prompting a call to 




Senate Circuit 




address the trend to federalize 
traditionally state crimes. 

"One of the greatest challenges 
confronting the federal Judiciary is to 
continue providing just and timely 
adjudication of a burgeoning federal 
docket/' Judge Wm. Terrell Hodges 
(M.D. Ha.) told the 
House Judiciary 
Subcommittee on 
Courts and Intellectual 
Property last month. 
The subcommittee, 
chaired by Representa- 
tive Howard Coble (R- 
NC), held the first 
oversight hearing on 
the Judiciary since 1993. 
Hodges, chair of the 
Judicial Conference 
Executive Committee, 
was accompanied by 
Aclministrative Office 
Director Leonidas 
Ralph Mecham and by 
Judge Rya Zobel, 
Director of the Federal 
Judicial Center. 

"The House Judi- 
ciary Committee is 
charged with the 
responsibility of 
oversight over the 
administration of the 



Judiciary's ^prnpriationstlills Move Forward 
"Reform" Bffl Introduced aii Seriate „......„.. .^k 

s Citizens Group Defends Judiciary _.. ._.„..* 



••-;--• pg-3 

• Pg- 6 

....... pg. 9 



Judiciary to ensure that it is 
utilizing its funds efficiently and 
effectively," Coble said. "Last 
November, Congress approved 
over $3.8 billion for the federal 
Judiciary for fiscal year 1998, 
which is an eleven percent increase 
over approved funding in fiscal 

year 1997 The subcommittee 

will focus on how this money is 
allocated to the different offices 
and programs within the Judiciary 
and whether or not it is being 
utilized efficiently and effectively." 
Coble said several areas of the 
budget would be discussed, 
including the rising costs of the 
Federal Defender Services pro- 
gram; courtroom use and court- 
room construction; the Judiciary's 
use of high-tech products and 
services and their impact on 
operating costs and efficiency in 
administering the judicial process; 
and concerns about judicial travel 
and judicial conflicts of interest. 

Hodges told the subcommittee 
that the workload of the Judiciary 
is continually expanding; he traced 
the expansion of federal caseloads 
to new legislation federalizing 
additional crimes, such as the 
pending juvenile justice bills. 
"Despite productivity gains by 
judges," said Hodges, "with no 
increases in Article III judgeships 
since 1990 or bankruptcy judge- 
See Oversight on page 2 



Oversight continued from page 1 

ships since 1992, compounded by a 
large number of unfilled judicial 
vacancies, many courts are simply 
congested with too much work and 
growing backlogs." 

The Judiciary needs adequate 
resources to meet the burgeoning 
workload. "[W]e are thankful that 
Congress has generally appro- 
priated a high percentage of the 
funds requested by the federal 
courts," said Hodges. "The 
Judiciary also needs sufficient 
funding to meet its court 
security, courthouse facility, 
and defender services needs." 
There has been no funding for 
the courthouse construction 
program for two years, which 
has worsened operational and 
security problems in aging and 
obsolete court facilities. Funds 
also are needed to increase the 
hourly rate for Criminal Justice 
Act panel attorneys, to attract 
attorneys with the skills and 
knowledge to provide adequate 
defense services. Most panel 
attorneys have received only a 
$5 increase over the past 12 
years. 

Hodges also addressed a 
needed 1999 pay adjustment 
for federal judges and members 
of Congress; the Judiciary's 
need to be reimbursed for its 
costs related to the Department 
of Justice's seizures and 
forfeitures of criminal assets; 
and the increasing tendency by 
members of Congress to amend 
the federal rules by statute, 
effectively bypassing the Rules 
Enabling Act. He also highlighted 
efforts the Judiciary has made to 
identify ways to streamline opera- 
tions, increase the use of technology, 
and ensure that resources are 
deployed appropriately and used 
efficiently. 

Coble asked what the Judiciary 
was doing to address concerns about 



judges who fail to recuse themselves 
from cases involving companies in 
which they own stock. Hodges 
assured the subcommittee that the 
Judiciary has taken steps to be 
certain judges are aware of their 
responsibilities, but that broad public 
disclosure of judges' financial 
records may raise security concerns 
for judges and their families. 



"Despite productivity gains by 
judges...compbunded by a large 
number of unfilled judicial vacancies, 



backlo 




Mecham, in his testimony before 
the subcommittee, focussed on the 
AO. Created by Congress in 1939, 
the AO supports over 30,000 Judi- 
ciary employees, including more 
than 2,000 Article III, bankruptcy, 
and magistrate judges, in over 800 
locations throughout the U.S. and its 
territories. 



"Our policy and support respc 
bilities touch on all aspects of jud 
operations," Mecham told the 
subcommittee. "I believe no othe 
federal agency has such far-read 
responsibilities as our own." He 
pointed to the major strides the / 
has made in the last five years, 
including the delegation of admi 
trative decision-making to the co 
the improvement of commu 
cations with the Data Comn 
cations Network, 
videoconferencing, intranet 
sites, and electronic public 
access to records; and the 
technological improvement 
systems and processes to ea 
the courts' workloads. The J 
is aggressively pursuing the 
of automated technology to 
reduce costs and improve 
productivity and business 
practices. 

"Despite the successes of 
recent years," Mecham cau- 
tioned, "there are several ar 
of concern: the need for add 
tional AO staff, whose num 
has grown at a considerabl) 
slower pace than has the Jui 
ciary overall; the lack of fur 
for courthouse construction 
the past two years; the erosi 
of judges' salaries; and the i 
for improvements in the err 
ployee benefits available to 
Judiciary employees." 

Mecham concluded his 
testimony by saying the AC 
continue to seek improvem 
and efficiencies in Judiciarj 
operations. "We have met t 
challenge in the past," said 
Mecham, "and will continu 
do so in the future to ensure eqi 
justice for all Americans." 

In her testimony before the 
subcommittee, Zobel highlighte> 
some of the areas in which the 
Federal Judicial Center has beer 
active, including satellite televis 
education through the newly 
launched Federal Judicial Telev 



Vic Third Branch 



July 1998 






From right: AO Director 

Leonidas Ralph Mecham; judge 

Wm. Terrell Hodges, chair of the 

Judicial Conference Executive 

Committee; and FJC Director 

Judge Rya VV. Zobel briefed 

^ouse subcommittee members on 

the state of the Judiciary at the 

oversight hearing last month. 



Network, in-court work- 
hops, on-line computer 
onferencing, and the 
'reduction of educational 
D-ROMS and videocas- 
ettes. In response to 
ubcommittee concerns 
bout judges attending 
rivate judicial education seminars 
xmsored by organizations with 
?ecihc policy goals, she reminded 
le subcommittee that "In all our 
dirial education — whether by 
■minars, by manuals and mono- 
■aphs, or through video broad- 
ists — we ensure that judges receive 
danced and practical explanations 
the governing law and its implica- 




tions, and of the economic and 
scientific factors that increasingly 
affect litigation." Zobel said that the 
FJC, within the limits of its resources, 
keeps judges up-to-date on changes 
in the law, as well as changes in 
appellate case law and developments 
in related fields. Approximately 
three-fourths of the FJC's resources 
are committed to education and 



udiciary's Appropriations Bills Move Forward 



Congress is picking up the pace in 
! race to have all the appropria- 
ns bills passed before the planned 
tober adjournment. In the week 
ore the July 4 th recess, the House 
i Senate moved the Judiciary's 
3ropriations bills several steps 
ther along in the process. So far, 
percentage growth in funding 
vided for the Judiciary in both the 
use and the Senate bills is higher 
n the other agencies, with only a 
j exceptions. 

["he House Appropriations Sub- 
■tmittee on Commerce, Justice, 
:e and the Judiciary completed 
rk-up of the Judiciary's fiscal year 
9 appropriations bill June 24. The 
iciary had requested an obliga- 
ial level of $4.10 billion for FY99. 
House Subcommittee, according 



to preliminary reports, recom- 
mended total obligation funding for 
the Judiciary of $4.01 billion. This is a 
6.8 percent increase over current 
estimated FY98 obligations. The full 
Appropriations Committee was 
expected to consider the bill in mid- 
July and make its report. 

In the Senate, the full Appropria- 
tions Committee marked up the 
Judiciary's 1999 appropriations bill, 
giving the Judiciary $3.93 billion in 
total obligations. This is a 4.4 percent 
increase over FY98 obligations. The 
Senate subcommittee had a smaller 
allocation of money to provide to its 
agencies than did the House, so it is 
not surprising that its mark for the 
Judiciary is less. The bill also pro- 
vides a cost-of-living adjustment for 
justices and judges in FY99. The 



training and the remainder to 
research and evaluation. Zobel 
welcomed suggestions from the 
subcommittee regarding FJC pro- 
grams and priorities and invited 
members and their staffs to attend 
FJC seminars and workshops, to 
view satellite broadcasts, and to 
use any of the FJC research 
products. &, 



Senate report language includes 
several directives regarding court- 
room technology, a study of court- 
room utilization, reporting quarterly 
on cost containment initiatives in 
defender services, and studying the 
costs and benefits of reviving post- 
conviction defender organizations at 
the state or federal level. The Judi- 
ciary is planning to try to clarify and 
modify some of this report language 
as the appropriations process 
continues. 

When Congress returns from its 
August recess, it will have two 
reasons to act quickly on the appro- 
priations bills. Not only will the new 
fiscal year start October 1, but the 
members will want to return to their 
districts or states to campaign for 
congressional elections. Hopefully, 
these pressures will help smooth the 
path to final passage of the 
Judiciary's appropriations bill. 



. I 



i i 



Vie Third Branch u July 199S 



Senate Circuit Hearing s 



Judgeships Examined in 6" 1 , 7 th and W Circuits 



The Sixth, Seventh, and Tenth 
Circuits' judgeship allocations came 
under congressional scrutiny last 
month. Members of the Senate 
Judiciary Subcommittee on Adminis- 
trative Oversight and the Courts 
heard from Chief Judges Stephanie 
K. Seymour (10 th Or.) and Richard 
A. Posner (7 th Cir.) on the judgeship 
allocations, caseload filings, and 
caseload management within their 
respective circuits. Chief Judge 
Boyce F. Martin Jr. (6 th Cir.) submit- 
ted a statement but was not able 
to attend a hearing. Senator Charles 
E. Grassley (R-IA), who chairs the 
subcommittee, has criticized the 
Judiciary's requests for more 
judgeships and its resource manage- 
ment. Last year, the subcommittee 
began hearings examining the 
judgeship allocations in all the 
circuits. Representatives from every 
circuit except for the Ninth Circuit 
have now testified before the sub- 
committee. 

lentil Circuit 

Seymour testified, "The U.S. 
Court of Appeals for the Tenth 
Circuit is pleased to report that it is 
able to keep its docket current 
because it has no vacant judgeships. 
Having our entire complement of 
judges for almost three years has 
enabled us to operate efficiently and 
expeditiously." 

Seymour acknowledged that the 
Tenth Circuit stands in a "somewhat 
unique position," since all of its 12 
authorized judgeships are filled and 
no additional ones are requested. 
The court's recent history, however, 
demonstrates the toll of vacancies. In 
1984, the court received two addi- 
tional judgeships, but because three 
judges took senior status, by 1987 
only seven of 10 judgeships were 
filled. The 1990 Omnibus Judgeship 



bill increased the court's authorized 
judgeships to 12, but the court did 
not reach full strength until 1995. 
"From 1987 until its last judgeship 
was filled in 1995," said Seymour, 
"the court was forced to rely heavily 
upon help from its senior judges, as 
well as from visiting judges. In 
addition, the court looked for 
creative ways of handling its 
caseload, including judicial screen- 
ing, mentoring of staff counsel work, 
and the implementation of a media- 
tion program." Judicial screening is a 
process by which judges of the court 
determine which cases may be 
decided without oral argument. 
When a case is at issue, it is submit- 
ted to a judge for screening. Each 
judge is a member of a screening 
panel of three judges and may retain 
a case to decide 
with the concur- 
rence of the remain- 
ing panel judges, or 
place the case on a 
conference calendar 
for submission on 
the briefs or for 
placement on an 
oral argument 
calendar. 

Also, as a part 
of the effort to 
reduce backlog and 
keep judgeship 
costs down, the 
court implemented 
a settlement 
program in 1991. 
"Our circuit 



mediation office provides mediatk 
services in civil appeals in which a 
parties are represented by counsel, 
explained Seymour. "Many of the* 
are substantial cases that, if not 
settled, would require oral argurru 
and full written decisions by the 
court. . . .The program provides an 
alternative to continued litigation 
and costs the parties significantly 
less than briefing and arguing an 
appeal." 

All of the Tenth Circuit's active 
and senior judges attend the circui 
week-long oral argument sessions, 
practice that Seymour believes con 
tributes to the court's collegiality. I 
addition, district court judges are 
invited to sit with the court during 
the oral argument terms. "This pra 
tice enables us to become acquaint* 
with the new judges and assists the 
in becoming familiar with our judg 
and practices," said Seymour. 

Four district courts within the 
Tenth Circuit have vacant judge- 



From right: Senator 

Oiarles E. Grassley 

(R-IA) greets Chief 

Judge Richard A. 

Posner (7 ,h Cir.) before 

the subcommittee 

hearing. 




4 



Tlw Tlurd Branch 



lulylWH 







lief Judge Stephanie K. Seymour (10 lh Cir.) 



ips. Each court is requesting that 
existing vacancy be filled. 

lentti Circuit 

The Seventh Circuit has 11 
igeships and no vacancies at this 
le. With the services of six senior 
iges, the number, according to 
sner, has been adequate to enable 
? court to handle its entire 
ieload. Posner, however, cau- 
ned members of the subcommit- 
, "[I]f the caseload surges, or if 
Iges die, retire, become inactive, 
rome disabled, etc., we may find it 
possible to do our work without 
ng visiting judges, expanding the 
egation of judicial functions to the 
ff, curtailing oral argument, 
)wing the backlog to grow, or 
ing other measures that might 
uce the quality of our work." 
Posner was congratulated on the 
nagement of the court by subcom- 
tee members and attributed the 
ciency of the circuit to various 
ovative practices. Of the 3,350 
es in the year ending September 
1997, "slightly more than half 
appear in one way or another 
ore being ready for submission to 



a panel of judges for decision on 
the merits," said Posner. "Some of 
the appeals are abandoned, some 
consolidated, some dismissed on 
motion, and some settled with 
(and sometimes without) the 
assistance of our two settlement 
officers." The court hears about 
two-thirds of the remaining cases 
because oral arguments are 
granted in virtually all cases in 
which both parties are repre- 
sented by counsel, unless the 
parties waive argument. Opinions 
are published in roughly half 
the cases decided on the merits. 
In 1988, the median time from 
oral argument to decision was 
4.4 months. The time now is 2.7 
months. The improvement in 
the speed with which the court 
_ decides cases has occurred in 
the last five years. 
Posner was asked by the 
subcommittee's ranking minority 
member, Richard J. Durbin (D-IL), 
why in the Chicago area only 30 to 
50 lawyers want to be considered 
for federal judgeships. The 
reasons, according to Posner, are 
that most lawyers would take a 
substantial cut in pay to become 
federal judges, that the nomina- 
tion process can be humiliating 
and time-consuming, and that 
some lawyers who handle pre- 
dominantly civil cases think 
judges handle mostly criminal 
cases. 



In the fiscal year ending September 
30, 1997, the circuit attempted to 
dispose of approximately 2,000 cases 
on the merits after hearing or 
submission by scheduling a total of 
48 hearing /submission panels, with 
each panel to be assigned 40 cases. 
"In order to staff the 48 hearing and 
submission panels," Martin stated, 
"we would need the equivalent of 18 
active judges sitting full time. 
Because we have only 15 active 
judges serving, the deficit has to be 
made up from the work performed 




Sixth Circuit 

The Sixth Circuit was autho- 
rized to have 16 active judgeships by 
the Judgeship Bill of 1990. "But 
today," Martin said in his statement 
to the subcommittee, "more than 
seven years since the passage of the 
most recent judgeship bill, we have 
never achieved that goal." The 
circuit's single vacancy has existed 
for more than three years, and, 
although a nominee for the vacancy 
is pending, no action has been taken 
by the Senate Judiciary Committee. 



Chief Judge Boyce F. Martin Jr. (6 ,h Cir.) 
submitted a statement to the subcommittee on the 
allocation of judgeships within his circuit, but 
was unable to attend a hearing. 



by our senior circuit judges, by 
assignment of visiting judges from 
other circuits, or the assignment of 
district judges from without our 
circuit to sit on the court of appeals." 
Even with the hard work of its active 
and senior judges, and despite a 
variety of practices designed to 
enhance the circuit's efficiency and 
improve the administration of 
justice, Martin said the court is 
falling behind. 



T7(f Tliird Branch 



July 1998 



Judicial Improvement Act ot 1998 Introduced in Senate 



Calling his bill "a long overdue 
effort to minimize the potential for 
judicial activism in the federal court 
system," Senator Orrin G. Hatch (R- 
UT) last month introduced S. 2163, 
the Judicial Improvement Act of 
1998, with co-sponsors Senators John 
Ashcroft (R-MO), Spencer Abraham 
(R-MI), Strom Thurmond (R-SC), Jeff 
Sessions (R-AL), and Jon Kyi (R-AZ). 

The bill includes many of the pro- 
visions contained in the House's re- 
cently passed Judicial Reform Act of 
1998, and some from H.R. 2294, the 
Federal Courts Improvement Act of 
1998. Like an early version of the 
House Judicial Reform Act, S. 2163 




Senator Orrin G. Hatch (R-UT) introduced 
tlie Judicial Improvement Act of 1998 last 
month. 



contains the repeal of Section 140 of 
P.L. 97-92, which currently requires 
specific congressional action for ju- 
dicial salaries to increase, unlike the 
automatic cost-of-living adjustments 
for Congress. The Senate bill now 
goes to the Judiciary Committee, 
which Hatch chairs, for consideration. 
According to Hatch, S. 2163 is not 
an assault on the federal Judiciary. 
"Judges, however, are simply not 
entitled to deviate from their roles as 
interpreters of the law to create new 



law from the bench," Hatch said. "If 
they believe otherwise, they are 
derelict in their duties and should 
resign to run for public office — at 
least then they would be accountable 
for their actions. It is time we pass 
legislation that precludes any federal 
judge from blurring the lines sepa- 
rating the legislative and judicial 
functions." 

Hatch said the bill "modestly 
proposes to respond to the problem 
of judicial activism" by, among other 
things 

□ Requiring a three-judge district 
court panel to hear appeals and 
grant interlocutory or permanent 
injunctions based on claims that a 
state law enacted by referendum 
or a federal law is unconstitu- 
tional. The Judicial Conference 
opposed a narrower provision in 
the House Judicial Reform Act 
that related only to state laws. 

G Requiring federal courts to peri- 
odically review existing consent 
decrees or civil actions in which 
prospective relief is issued (not 
just those involving prison litiga- 
tion). In addition, a provision 
could limit the use of special mas- 
ters and could broaden the 
Judiciary's responsibility for the 
payment of special masters in 
prison cases appointed prior to 
enactment of the Prison Litigation 
Reform Act of 1996. 

□ Depriving a federal court of the 
authority to order state or local 
governments to increase taxes as 
part of a judicial remedy. A re- 
lated provision, dropped from the 
House Judicial Reform Act, was 
opposed by the Judicial Confer- 
ence. 

G Preventing a federal court in the 
consideration of habeas corpus 
petitions from prohibiting state or 
local officials from reprosecuting a 



defendant — referring to a contr< 
versial decision in the Eastern C 
trict of Pennsylvania in which ti 
district judge ordered the peti- 
tioner released from state prisoi 
and prohibited reprosecution oi 
the grounds that the petitioner 
was actually innocent of the 
charge of murder and that the 
prosecution was infected with 
misbehavior. 

G Preventing a federal court from 
ordering the release of prisoner 
on grounds that their conditions 
of imprisonment violate their cc 
stitutional rights. This provision 
similar to an amendment added 
by Representative Tom DeLay (; 
TX) to the House Judicial Reforr 
Act. The Senate bill contains the 
same prohibition of prisoner re- 
lease orders, but unlike the Hou 
bill it does not terminate all exist 
ing consent decrees. 

S. 2163 also includes a provision 
that any Act of Congress shall be 
prospective in application only 
unless a provision included in the 
act expressly specifies otherwise. 
According to bill co-sponsor 
Thurmond, "This simple rule will 
eliminate a great deal of uncertaint 
As a result, it will reduce litigation 
costs and help our judicial system 
better focus to reserve its limited 
resources." The Judicial Conference 
previously has supported, in gener; 
similar legislation proposed by 
Thurmond. 

Another provision is intended to 
curb prisoners' frivolous and mali- 
cious motions by requiring the 
complainant prisoner to pay for the 
costs of filings. Yet another provisic 
limits collateral relief, saying no 
post-conviction remedy may chal- 
lenge the custody or sentence of a 
person on the ground that the 
custody or sentence is the result of; 
voluntary confession. 



Tin- Vnrd Branch m iuly 1998 



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ay Raise Future Uncertain as Clock licks on 105 th Congress 



decent House Action 
\4ay Jeopardize 
udges' COLA in 1999 

The Senate Appropriations 
ommittee recently took positive 
rtion on a 1999 cost-of-living 
ijustment (COLA) for 
stices and judges in the ^^ 

Dmmerce, Justice, State, and 
diciary appropriations bill, 
inator Judd Gregg (R-NH) 
eluded the necessary 
ction 140 of P.L. 92-97 
aiver language that permits 
i Employment Cost Index 
ijustment in 1999 in the bill 
proved by the Senate 
Jpropriations Committee, 
though Senator Robert Byrd (D- 
V), ranking minority member of 
! Appropriations Committee, 
jected to the COLA and cont- 
ented on the judges' retirement 
;tem, Gregg kept the promise he 
ide at the subcommittee hearing, 
egg also initiated the COLA last 
ir, and has been a champion for 
Judiciary on this issue. 



On the other hand, the House 
Appropriations Committee just took 
an action that seriously jeopardizes 
the outcome of a COLA for judges in 
1999. The Committee approved the 
House Treasury, Postal Service, and 
General Government bill, which 
includes language that would deny a 
COLA for judges, members of 



"It is the sense of the Judicial Conference 
tlwt the problem of fixing the compensation 
°f judges. Members of Congress, and high 
federal executives will continue to frustrate 
us until the Congress and the President 
agree to restructure the process for fixing 
the salaries of these officials. " 



Congress, and executive schedule 
officers. Chairman Jim Kolbe (R-AZ) 
and ranking minority member Steny 
Hoyer (D-MD) said that they person- 
ally supported a COLA, but election 
year pressures had caused the House 
leadership to conclude that it was 
not feasible. 

The House Commerce, Justice, 
State, the Judiciary, and Related 



Hot Project Makes Internet Comment on Rules Possible 



Members of the bench, bar, and 
ublic will soon have the option of 
ectronically submitting their 
)mments on proposed amend- 
lents to the federal rules and 
irms via the Internet. 

As part of a pilot project, the 
idicial Conference Committee on 
ales of Practice and Procedure 
inounced that the electronic 
Jtion of submitting comments via 
e Internet will become effective 
i or around August 1, 1998. 
ritten comments still will be 
cepted. All comments on civil 
les and evidence, whether 



electronic or written, must be 
submitted no later than February 1, 
1999. All comments on the bank- 
ruptcy rules, due to the volume of 
proposed rules, must be submitted 
no later than January 1, 1999. 

The text of the rule amendments 
will be available on the Judiciary's 
website at www.uscourts.gov. 
Information also will be available 
on the dates of public hearings and 
details of the submission of com- 
ments, including instructions on 
how to send comments electroni- 
cally on the proposed rule amend- 
ments. 



Agencies appropriations bill is silent 
on the COLA issue and the Senate 
Treasury, Postal Service bill is 
scheduled for mark-up in mid-July. 
If the Senate provision on the judges' 
COLA survives floor action, it will 
become a conference issue with the 
House. At both stages, the COLA is 
at great risk. 

mm The Administrative Office is 
continuing its strong support of 
the issue on the hill. Last month, 
Administrative Office Director 
Leonidas Ralph Mecham wrote 
to members of Congress saying, 
"I strongly believe that the 
denial of a 1999 cost-of-living 
salary adjustment would be a 
^^ big step down the steep slope of 
real pay. As many Members of 
Congress have personally observed, 
the repeated denial of such adjust- 
ments to those who govern our 
country may imperil the pluralism 
and integrity of all three branches of 
government." Mecham also told 
members that, "If we want the best 
people in government, we must pay 
them satisfactory wages. It is the 
sense of the Judicial Conference that 
the problem of fixing the compensa- 
tion of judges, Members of Congress, 
and high federal executives will 
continue to frustrate us until the 
Congress and the President agree to 
restructure the process for fixing the 
salaries of these officials." 

Congress last approved a COLA 
for members of Congress, executive 
schedule employees and federal 
judges in January 1998, the first in 
five years. At that time, Speaker of 
the House Newt Gingrich reportedly 
said that annual COLAs should be 
the rule, as provided for under the 
Ethics Reform Act of 1989. However, 
the question of a COLA for FY99 is 
still in question and will likely 
remain unresolved until Congress 
finishes its work on its appropria- 
tions bills. 



The Third Branch m July 1998 



JUDICIAL MILESTONES 



Appointed: Judge Richard D. 
Cudahy (7 th Cir.) to the division of 
the U.S. Court of Appeals for the 
District of Columbia, for the pur- 
pose of appointing independent 
counsel, succeeding Judge John D. 
Butzner, Jr. (4 th Cir.) October 26, 
1998. 

Reappointed: Judge Peter T. Fay 

(11 th Cir.) to the division of the U.S. 
Court of Appeals for the District of 
Columbia, for the purpose of 
appointing independent counsel, 
October 26, 1998. 

Reappointed: Judge David B. 
Sentelle (D.C. Cir.) to the division 
of the U.S. Court of Appeals for the 
District of Columbia, for the pur- 
pose of appointing independent 
counsel, October 26, 1998. 

Appointed: M. Margaret 
McKeown, as U.S. Court of Ap- 
peals Judge, U.S. Court of Appeals 
for the Ninth Circuit, May 28. 

Appointed: Delissa A. Ridgway, 

as U.S. Court of International Trade 
Judge, U.S. Court of International 
Trade, May 29. 

Appointed: Judith M. Barzilay, as 

U.S. Court of International Trade 
Judge, U.S. Court of International 
Trade, June 3. 

Appointed: William P. 
Dimitrouleas, as U.S. District 
Judge, U.S. District Court for 
the Southern District of Florida, 
June 1. 

Appointed: Edward F. Shea, as U.S. 
District Judge, U.S. District Court 
for the Eastern District of Washing- 
ton, May 28. 

Appointed: Arthur J. Tamow, as 

U.S. District Judge, U.S. District 



Court for the Eastern District of 
Michigan, May 26. 

Appointed: C. Christopher Hagy, 

as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of Georgia, June 1. 

Appointed: Ricardo S. Martinez, 

as U.S. Magistrate Judge, U.S. 
District Court for the Western 
District of Washington, June 8. 

Appointed: Pamela Ann Mathy, 

as U.S. Magistrate Judge, U.S. 
District Court for the Western 
District of Texas, June 8. 

Elevated: Judge Rosemary S. 
Pooler, to U.S. Court of Appeals 
Judge, U.S. Court of Appeals for 
the Second Circuit, June 9. 

Elevated: Bankruptcy Judge Sara 
E. De Jesus, to Chief Bankruptcy 
Judge, U.S. Bankruptcy Court for 
the District of Puerto Rico, Janu- 
ary 1. 

Senior Status: Judge William 
Wayne Justice, U.S. District Court 
for the Eastern District of Texas, 
June 30. 

Retired: Senior Judge David S. 
Doty, U.S. District Court for the 
District of Minnesota, June 30. 

Retired: Senior Judge Robert R. 
Merhige, Jr., U.S. District Court 
for the Eastern District of Virginia, 
June 8. 

Retired: Magistrate Judge Philip 
K. Sweigert, U.S. District Court 
for the Western District of Wash- 
ington, June 7. 

Deceased: Senior Judge Hugh 
Gibson, U.S District Court for the 
Southern District of Texas, June 
18, 1998. 



THIRD 

BRAN'CH 



Published monthly by the 

Administrative Office of the U.S. Couj 

Office of Public Affairs 

One Columbus Circle, N.E 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http: / / www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Contributing to this issue: Sara Waltei 

Please direct all inquiries and address 
changes to The Third Branch at the abov 
address or to redmondfateo.uscourts.gc 



JUDICIAL BOXSCORE 

As of July 1, 1998 

Courts of Appeals 
Vacancies 
Nominees 

District Courts 
Vacancies 
Nominees 

Court of International Trade 
Vacancies 
Nominees 

Courts with 
"Judicial Emergencies" 

For more information on vacandes i 
the Federal Judiciary visit our websi 
at vwvw.uscourts.gov. 



The Third Branch m luly 1998 



Citizens for Independent 
louris Project to 
lefond Judiciary 

While asserting that "an indepen- 
2nt Judiciary is not one shielded 
om criticism," the newly formed 
itizens for Independent Courts 
oject nonetheless contends that 
ourts are able to protect the basic 
*hts of individuals and decide cases 
irly only when they are free to 
ake decisions according to the law, 
thout regard to 
'litical or public 
essure." 
A press confer- 
ee announcing the 
■mation of Citizens 
• Independent 
urts was held last 
>nth in Washing- 
i. The bipartisan 
>up is an initiative 
rhe Century 
jndation / Twenti- 

Century Fund, 
i is supported by 
iding from the 
os Open Society 
titute. 

\ccording to its mission state- 
nt, the project grew out of concern 
t politically motivated attacks on 
courts do a "grave disservice to 
principle of an independent 
iciary and threaten the ability of 
ges to decide cases fairly and 
•artially." Four officials who 
ounced the creation of the group 

recent press conference were 
aer New York Governor Mario 
>mo, former Wyoming Senator 
n Simpson, former Oklahoma 
resentative Mickey Edwards, and 
tier White House Counsel Lloyd 
ler. Edwards and Cutler are co- 
rs of the project. 

impson, joining the conference by 
?hone from Wyoming, stressed 
importance of protecting an 





Former Oklahoma Representative Mickey Edwards (photo left) with 
former New York Governor Marie Cuomo and former White House 
Counsel Lloyd Cutler (photo above) at the press conference 
announcing the formation of the Citizens for Independent Courts. 
Former Senator Alan Simpson participated by phone from Wyoming. 



independent 
Judiciary from 
political postur- 
ing by filling 
judicial vacan- 
cies. "Undue 
delays in the 
confirmation of 
federal judges," 
Simpson stated, 
"inhibit our ability to maintain an 
independent Judiciary." 

Cuomo also defended the courts. 
In a prepared statement, he said, 
"The courts are America's most vital 
institution for protecting the rights 
of individuals. When the courts are 
under attack, it means individual 
rights are in jeopardy. We must 
protect our courts to protect our 
rights." However, Cuomo said, "On 
both the state and federal levels, we 
are seeing this integrity eroded by a 
constant assault of misleading 
political rhetoric." 

Many familiar names are among 
the project's 80 members including 
former U.S. Senator Howell Heflin; 
former U.S. Representative Robert 
W. Kastenmeier; former director of 



the FBI and former federal judge 
William S. Sessions; ABA president 
Jerome Shestack; former Senators 
Mark Hatfield and Paul Simon; 
Carter administration attorney 
general Griffin B. Bell; Reagan 
administration White House Counsel 
Fred Fielding; and former Clinton 
administration White House Counsel 
and federal judge Abner Mikva. 

The project plans to undertake in- 
depth studies and make recommen- 
dations on 

□ What distinguishes legitimate 
criticism from intimidation of 
judges. 

O How to preserve the integrity of 
the processes for judicial selection 
in the state and federal systems. 

□ What unique problems are pre- 
sented in the state judiciary, in- 
cluding elections and financial 
contributions to judicial cam- 
paigns. 

□ What the appropriate legislative 
role is in setting the jurisdiction 
and power of the courts while 
preserving constitutional 
rights. £«^ 



The Third Branch m July 1998 



- 9 



INTERVIEW 



Courthouses, Rents, COLAs and Y2K: 

An Interview with Representative James Mne 



10 



Representative James Kolbe (R-AZ) is 
chair of the House Appropriations 
Subcommittee on Treasury, Postal 
Service and General Government. The 
subcommittee's jurisdiction includes the 
General Services Administration (GSA), 
the Office of Management and Budget 
(OMB), and the Office of Personnel 
Management (OPM). 

Q. Many judges believe that 
• GSA charges exorbitantly 
high rents, high overhead, and 
management costs to the courts for 
use of government-owned court- 
houses. Has your subcommittee 
addressed this issue? 

A. I don't think that GSA 
• charges high rents. GSA has 
to charge competitive rates. They are 
required to do so by law, and they 
usually charge what is the commer- 
cial equivalent. There is an appeals 
process that the courts, or any tenant, 
can go through if they think the rate 
they are being charged by GSA is too 
high. In fact, there was a study done 
by GSA's inspector general that said 
GSA was actually subsidizing tenants 
for overhead costs. In other words, 
the Federal Buildings Fund and GSA 
appropriations were paying for all 
the overhead. 

Clearly, one of the problems we 
have with GSA is that historically 
they have not been charging enough 
for the rents. That's why the Federal 
Buildings Fund is not bringing in 
enough money either to build 
courthouses on a fast enough basis, 
or for the maintenance or renovation 
of projects. 

In the long run, the courts will 
benefit from paying the fair market 
rate because they'll have better 



maintenance, earlier renovations and 
upgrades, and new courthouses. 



Q 



# Your subcommittee appears 

• to be concerned about the 
steps taken to date by federal 
agencies to upgrade their automated 
systems to make them Year 2000 
(Y2K) compliant. What are your 
concerns and what do you believe 
needs to be done? 

A. We have been very, very 
• concerned with Y2K compli- 
ance issues. OMB has the overall 
responsibility within the federal 
government for managing this 
properly, and OMB comes under my 
subcommittee's jurisdiction. I note 
with both interest and alarm that the 
most recent OMB report card on 
agencies shows many of the agencies 
are getting a lower grade on their 
Y2K compliance than before, sug- 
gesting that they are not doing as 
well. This is a very serious matter 
because they are supposed to have a 
full year of testing to make sure 
everything is operable. If agencies do 
not have this completed by the end 
of 1998, which is just six months 
away, they are going to be in serious 
trouble. 

It's a failure of management more 
than anything else. The agencies and 
agency managers have not been on 
top of this issue, and they haven't 
given it the kind of attention that is 
needed. 



Q # The Administration has 
• failed to request funds for 
construction of badly needed court- 
house projects for the last two fiscal 




years. Considering the enlightene 
action on the part of your subcom 
mittee to go ahead and fund 14 of 
these projects in fiscal year 1999, c 
you believe the Administration he 
seen the error of its ways and will 
resume such funding requests in 
fiscal year 2000? 

A. I don't know that they 
• will. There's a good chart 
they won't, because as is often the 
case in the budget, they know thai 
Congress has pressure on them to 
build these courthouses. The Adrr 
istration will take this into accoun 
establishing its budget priorities. 
Then when Congress funds the 
absolutely vital and necessary thir 
like courthouses, which you need 
maintain a whole system of justice 
that works correctly, and doesn't 
fund all the Administration's new 
programs, they'll say Congress 
doesn't care about education or 
about veterans. It's an easy game i 
them to play, and it is my guess th 
probably will continue to do that, 
hope that's not the case. 

We agreed last year that the 
building moratorium was necessai 
because the Federal Buildings Fun 
had dropped so precipitously. We 
needed a year of breathing room t< 
build the fund back up. But you ca 
continue a moratorium -ery long, 
you go too long wit ioing 

something about th astructun 
literally takes a geneiuuon or two 
catch up. So you can't impose that 
kind of moratorium too long. You 
can never fall too far behind. It's jl 



The Tlurd Branch 



July 1998 





natter of making sure that you 
ve the money and allocating the 



"\ . Are you satisfied with the 
^ • steps taken by the 
liciary and GSA to address 
' issues raised in previous 
irs by your subcommittee 
h as prioritizing courthouse 
istruction projects, reducing 
irthouse construction costs, 
1 identifying the optimum 
nber of courtrooms needed in 
I projects? ' 

. Congress asked the 
i. • Judicial Conference to 
mit a five-year priority plan on 
rthouse construction and we 
ly stuck to it. I think that the 
•ritizing is done with sound, 
>ible, criteria. I had somebody 
ie up to me on the House floor 
say that it's impossible that a 
rthouse isn't higher up in that 
I said I'd take a look, but I'm not 
tg to second guess the criteria. 
?rwise, it becomes so politicized 
mpossible. 

es, I am satisfied with the kinds 
lings being done to reduce 
truction costs. We've insisted 
GSA and the Judiciary look at 
ifications and standardize some 
e elements of a courthouse. 
e is still a great tendency on the 
of judges to want to have 
umental edifices. I don't think 
thouses should look like ware- 
es. There is an important 



symbolism to the architecture and 
construction of a courthouse. They 
are supposed to be impressive. But I 
think there are a lot things we could 
do to reduce costs such as standard- 
izing specifications, or using stand- 
ardized designs of courtrooms, 



"I think we have an obligation to make 
sure that we get those increases, and I 
feel very strojigly about that. I wish we 
could somehow devoliticize pay raises 
for members. " 



instead of designing each one to be a 
little bit different than the one next 
door, and so forth. 

The same thing applies in terms of 
identifying the optimum number of 
courtrooms. I'm not completely 
satisfied. You look at universities, 
and if a university has a 60 percent 
rate of usage it means that many of 
their classrooms are empty most of 
the time. The GAO report said that 
courtrooms are used for trial or non- 
trial purposes only 54 percent of the 
days that they could' ve been used. 
Trying to get more usage out of the 
courtrooms and sharing courtrooms 
is important. 



Q # In an era of constrained 
• federal budgets, some 
question the ability of Congress to 
provide sufficient appropriations to 
continue the multi-year effort to 
furnish the additional court facilities 
required by the courts. Has your 



subcommittee considered any 
alternative ways of funding these 
projects, such as public-private 
partnerships or lease-to-own initia- 
tives? 

A. The Budget Act of 1990 is 
• the critical thing, and in 
retrospect, probably a terrible 
mistake. It has significantiy nar- 
rowed the options that we have 
available to us by changing the 
whole process by which you score 
construction funding. It used to be 
that if you did a financing or a lease- 
to-own, you could amortize it over a 
period of time. But the Budget Act of 
1990 required scoring every dollar 
up front. If we were to authorize 
construction of a building costing 
^^^^ $700 million dollars, the 
entire amount gets scored 
in the first year. We really 
need to look at different 
ways of budget scoring. 
You can't do lease-to- 
own, because the entire 
cost of that is counted in 
the first year that you 
authorize it, so you have to pay for it 
out of your budget in one year. 



Q: 



Some believe that the 
concept of GSA's Federal 
Buildings Fund, where receipts come 
into the fund through agency rental 
payments and the cost of operating 
federal buildings, paying for leased 
buildings, and, ideally, providing for 
the construction of new facilities are 
paid for out of the fund, has outlived 
its usefulness. Do you believe the 
Federal Buildings Fund is working 
properly and that it should continue 
to exist? Are you considering any 
alternative approaches? 

A. I think GSA's Federal Build- 
• ings Fund works, and works 
pretty well, overall. It is the right 
way to go because it allows GSA to 
collect the rents, build up the fund, 



See Interview on page 12 



11 



The Third Branch m July 1998 



Interview continued from page 11 

and use the rents for further repairs, 
renovations, and new buildings. You 
are allowing for the construction of a 
new building when an old one has to 
be replaced. It essentially works as a 
capital budget. 



Q # Your subcommittee recently 
• agreed to an amendment 
denying a 1999 cost-of-living allow- 
ance (COLA) for members of 
Congress, judges, and executive 
schedule employees. Could you tell 
us what this amendment means in 
terms of pay raises for the coming 
fiscal year? 

A. I obviously strongly support 
• regular, systematic pay 
increases for all senior people in 
government, regardless of branch. 
It's one of the reasons I worked so 
hard last year to get a cost-of-living 



adjustment through for the first 
time in five years. I freely concede 
that Mr. Hoyer and I offered the 
amendment not to give members a 
COLA this year. Neither of us is in 
favor of it, but we offered it in order 
to keep the issue out of a floor battle. 
The leadership told us we can't 
protect a pay raise this year, so get it 
over with as fast as you can, as early 
as you can. 

I don't think that you can make 
any judgment on what it means for 
coming years. I think we have an 
obligation to make sure that we get 
those increases, and I feel very 
strongly about that. I wish we could 
somehow depoliticize pay raises for 
members. The whole idea of tying 
members' pay raises together with 
judges, and the top level SES people 
in the executive branch makes some 
sense, however. The pay of the top 
levels in all three branches of govern- 
ment should rise together. 



Q. The 1989 Ethics Reform A 
• called for the creation of a 
Citizens' Commission on Public S« 
vice and Compensation. The com- 
mission was designed to be an ind 
pendent group that could speak w 
authority on pay increases for mei 
bers of Congress, judges and senic 
executives. However, the commis- 
sion has never functioned. What a 
your views on such a commission' 

A. The law says the pay raise 
• is supposed to be automal 
but a few years ago somebody sail 
well, there's a way around that, I 
can offer an amendment that will 
block the pay increase from going 
into effect. There's no way, as it 
rums out, to make a pay raise 
absolutely automatic. Congress ca 
always block an earlier action or 
vote to say no to any commission' 
findings. You just can't avoid the 
politicization of this process. ^ 



HE THIRD BRANCH 



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S&IB1URY 

1998 



rthouse Funding Delay Jeopardizes Judicial System 



Judges Urge Congress to Approve 

Needed Funding During 

Testimony Before House 

Subcommittee 




behalf of the Judiciary, a 
.1 judge has urged Congress to 
ve 14 courthouse construction 
ts under consideration by a 
' subcommittee, which already 
>een delayed by a year. Failure 
so could negatively impact 
witnesses, litigants, lawyers, 
tose who work in federal 
louses. 

me of the projects are necessary 
>e current leases will be expir- 
site acquisition within the next 
1 months makes good business 



Judge Ann C. Williams (N.D. III.) and Judge 
Norman H. Stahl (1st Cir.) outline the impact 
further delay could cause. 



sense," said Judge Norman H. Stahl 
(1 st Cir.). "Others face severe over- 
crowding caused by explosive 
caseload growth and /or major 
security risks." 

Stahl, chair of the Judicial Confer- 
ence Committee on Security and 
Facilities, testified last month before 
the House Transportation and Infra- 
See Funding on page 3 



Courthouse Funding Survives House Floor Action pg. 3 

Need for New Federal Statute Questioned pg. 4 

How Analysis Helps Gauge Threats pg. 6 




Vol. 30 
Number 8 
August 1998 



Appropriations Bills 
Clear Both Houses 

By mid-July the Senate passed 
the appropriations bill for the 
Departments of Commerce, Jus- 
tice, and State, the Judiciary, and 
related agencies for fiscal year 
1999. The House waited until the 
first week of August to pass its 
appropriations bill, which, 
among other measures, limits 
Census Bureau funds. President 
Clinton has already said he 
would veto a bill with such a 
limit. A conference of the bills 
will wait until both Houses 
return from the August recess in 
September. 

In the Senate 

The Senate adopted the 
recommendations of its full 
Appropriations Committee, 
giving the Judiciary $3.93 billion 
in total obligations, a 4.4 percent 
increase over FY98 obligations. 
The bill retains the provision 
authorizing a salary adjustment 
during FY99 for U.S. judges and 
justices, and appropriating funds 
for that purpose. However, this 
provision is expected to be 
deleted in conference. The Senate 
also added several amendments 
that would affect the Judiciary. 
These amendments would 

See Bills on page 2 



Bills continued from page 1 

O Require the Judicial Confer- 
ence to report on whether the 
Federal Rules of Criminal Pro- 
cedure should be amended to pro- 
vide for the presence of witness' 
counsel in the grand jury room. 

G Limit monthly payments to panel 
attorneys in federal capital pro- 
secutions, and possibly some 
other cases, to the monthly 
compensation of the U.S. attorney 
in that district. 

□ Preclude courts from requiring a 
civil litigant to pay for special 
master costs for prison condition 
cases unless the special master 
was appointed before the enact- 
ment of the Prison Litigation 
Reform Act. 

□ Require that reports submitted to 
the Appropriations Committee on 
matters within the jurisdiction of 
the Judiciary Committee also be 
submitted to the Judiciary Com- 
mittee. 

O Move Schuylkill County from the 
Eastern District to the Middle 
District of Pennsylvania. 

The Senate report also calls for a 
courtroom utilization study, a reduc- 
tion in judges' staff and a 20 percent 
reduction in judges' travel, a pilot 
project on courtroom technology, 
and a study of the costs and benefits 
of reviving post-conviction defender 
organizations. 

In the House 

H.R. 4276, the Commerce, Justice, 
State and Related Agencies appro- 
priations bill for FY99, gives the Judi- 
ciary $3.99 billion in total obligations, 
a 6.3 percent increase over FY98. 

Chairman Harold Rogers (R-KY) 
introduced H.R. 4276, saying," [I]f 
this bill sets one priority, it is to 
provide increased funding to fight 
crime and empower federal, state 
and local law enforcement with the 



resources they need to enforce our 
laws and prevent crime." Much of 
the subsequent debate on the bill, 
however, concerned funding for the 
Census Bureau. In the end, the 
House passed a bill with limited 
Census Bureau funds. Floor action 
also attached the Citizens Protection 
Act of 1998 to the bill, a provision 
that sets ethical standards for federal 
prosecutors and independent 
counsels, sets penalties for miscon- 
duct, and establishes a Misconduct 
Review Board. The President is 
threatening to veto the bill over 
either of these provisions. An 
amendment by Ranking Minority 



Member Alan Mollohan (D-WVj cut« 
$20 million from the Judiciary's 
Salaries and Expenses account, in 
addition to cuts to several other 
agencies, in order to provide addi- 
tional funds to the Legal Services 
Corporation. 

In anticipation of the September 
conference of the bills, the Judiciary 
will send a letter later in August to 
the appropriations conferees to 
appeal the funding and some of the 
language in the bill and report. 
Judges and AO staff will seek to 
obtain funds at least at the higher 
House level and to delete several 
report language items. 



FY 1999 Commerce, Justice, State, 
and the Judiciary Appropriations Bills 

(Total obligations* in thousands of dollars) 



FY 98 
Obligations 

$29,278 
3,739 



15,617 



11,789 



House 
Passed 

$31,095 
5,571 

16,143 

11,947 



Senate 
Passed 

31,059 
5,571 

15,673 

11,626 



Supreme Court 

Salaries and Expenses 
Buildings and Grounds 

U.S. Court of Appeals 
for the Federal Circuit 

U.S. Court of 
International Trade 

Courts of Appeals, District 
Courts, and Other Judicial 
Services 

Salaries and Expenses 
Defender Services 
Fees of Jurors 
Court Security 

Administrative Office 
of the U.S. Courts 

Federal Judicial Center 

Judicial Retirement Funds 

U.S. Sentencing Commission 

TOTAL OBLIGATIONS** 

* Total obligations include funding from appropriations, fee collections, 

fee and appropriated fund carryover, Judiciary Automation Fund, transfers, 

and reimbursements 

** Totals are adjusted so that programs financed through reimbursement from othei 

Judiciary appropriations are not counted twice. 



2,980,903 


3,164,650 


3,124,508 


360,206 


391,831 


360,952 


66,873 


69,944 


70,239 


167,891 


174,569 


176,873 


89,084 


93,651 


93,833 


18,496 


18,600 


18,216 


37,200 


37,300 


37,300 


9.766 


9,600 


9,374 


$3,759,787 


$3,995,372 


$3,925,731 



The Third Branch m August 1998 



ding continued from page 1 

cture Subcommittee on Public 
clings and Economic Develop- 
it. He was accompanied by Judge 
i C. Williams (N.D. 111.), who is 
former chair of the Conference 
imittee on Court Administration 
Case Management. She dis- 
ed the Conference consideration 
Dlicy relating to courtroom 
zation and sharing. The commis- 
er of General Services Admin- 
tion's Public Buildings Service., 
?rt A. Peck, also testified at the 
ing. 

i his testimony, Stahl provided 
ubcommittee with a status 
rt on Conference initiatives to 
I greater economy and efficiency 
urthouse construction. 

States Courts Design Guide 

brking closely with Congress, 
'onference has made significant 
ges to the Judiciary's space 
lards that should result in cost 
igs for new projects. The most 
it revision focused on reducing 
irculation space needed to move 
office to office, which could 
as much as $2 million in the 
ige future project. 

iar plan 

ie Conference continues to 
w and update its prioritization 
Djects using a standard weighted 
ng method. GSA input and 
r sis are important parts of this 

!SS. 

Dom utilization and sharing 

is issue is much more complex 
simply counting the time the 
< are on in a courtroom. In her 
estimony, Williams told the 
)mmittee, "The certainty of an 
ible courtroom in order to 
e a firm trial date is what 
irages settlement of cases, 
ry-five percent of our cases 
. Without that settlement rate, 



Courthouse Funding Sorvives Hoose Floor Action 



During the House's consider- 
ation of the fiscal year 1999 
Treasury and General Government 
Appropriations Act, floor action 
directed at unauthorized projects 
stripped out the notations in the 
bill specifying how much each 
courthouse project should receive, 
but inadvertently left intact the 
total funding amount of $527 
million for courts and other public 
buildings and GSA's authority to 
spend the funding. 

The House Subcommittee on 
Public Buildings and Economic 
Development later approved 
authorizing resolutions for eight of 
the courthouse projects, and 



we would be buried with cases 
waiting for trial." 

Nevertheless, at its March 1997 
session, the Judicial Conference 
adopted a policy that attempts to 
balance a judge's essential need to 
have an available courtroom with the 
economic reality of limited resources. 
The Conference policy provides one 
courtroom for each active district 
judge but sets forth a non-exclusive 
list of factors for circuit councils to 
consider with regard to the court- 
room needs for senior and visiting 
judges. The Conference also has 
approved planning assumptions that 
can be used to determine the proper 
number of courtrooms in a new 
facility. These assumptions address 
several factors that can affect the 
number of courtrooms needed in the 
short and long terms. Some of these 
factors include the average age of 
district judges upon appointment, 
the average number of years it takes 
for a replacement judge to begin 
work, and the number of years a 
senior judge would require a court- 
room dedicated specifically to his or 
her use. 



requested reports on four more 
courthouse projects, with the 
intention of authorizing them in 
September. 

The Senate postponed a vote on 
the FY99 Treasury and General 
Government Appropriations Act 
until after the August recess. The 
delay was caused by a proposed 
amendment unrelated to court- 
houses that would have bogged 
down in debate for some time. 

Courthouse funding for 14 
courthouse projects is included in 
the Senate appropriations bill, and 
it is hoped it will survive a confer- 
ence of the House and Senate 
appropriations bills, i^ 



During the hearing, subcommittee 
members differed over the need for a 
study of courtroom use. Ranking 
minority member Representative 
James A. Traficant Jr. (D-OH) 
suggested that there should not be 
a statutory requirement for utiliza- 
tion studies. "We don't want to be in 
your way. We don't want to micro- 
manage," he said. However, 
Rep. John J. Duncan Jr. (R-TN) 
complained that for years the 
subcommittee has been a "rubber 
stamp," and said there's "a lot of 
Up service being paid to costs." 
Williams responded that the Judicial 
Conference had asked the RAND 
Corporation to study the literature 
available on courtroom sharing and 
to advise on the feasibility of con- 
ducting a study. RAND found that 
such a study would cost millions of 
dollars and take several years, and 
that when all of that was done, 
RAND could not guarantee that it 
could or would arrive at a formula 
for the number of courtrooms 
needed that could be applied on a 
national basis. 

See Funding on page 4 



U 



. I 



, i 



The Third Branch m August 1998 



Need for New Federal Statute Questioned 



Hate crimes legislation is the latest 
congressional initiative that appears 
to expand the criminal jurisdiction of 
federal courts into areas previously 
prosecuted exclusively by mh 

state courts, a representative 
of the federal Judiciary told a 
Senate committee last month. 

"This trend to federalize 
state offenses places the 
viability of judicial federalism . . . 
unquestionably at risk," said Judge 
Richard J. Arcara (W.D. N.Y), a 
member of the Judicial Conference 
Committee on Criminal Law. "S.1529 
(the Hate Crimes Prevention Act of 
1998) appears to be emblematic of 



that trend," Arcara testified last 
month before the Senate Judiciary 
Committee. The House is consider- 
ing a similar bill, H.R. 3081. Both 



"This trend to federalize state offenses 
places the viability of judicial 
federalism . . . unquestionably at risk." 



bills would provide federal prosecu- 
tion for a significant number of 
crimes traditionally prosecuted in 
state systems. While a Judicial 
Conference representative did not 
testify at House hearings on H.R. 
3081, Judicial Conference concerns, crimes.' 



identical to those expressed over S. 
1529, were transmitted by letter to 
Representative Henry Hyde (RTL), 
chair of the House Judiciary Com- 
mittee. 

S. 1529 was introduced by Senator 
Edward Kennedy (D-MAj, with co- 
H sponsors Senators Arlen Specter 
(R-PA) and Ron Wyden (D-OR). 
The bill has attracted 20 addi- 
tional co-sponsors in the Senate. 
At a press conference before the 
m hearing, Kennedy called hate 
crimes a form of terrorism, and said 
that while states will continue to take 
the lead in the prosecution of hate 
crimes, "the full power of federal law 
should also be available to investi- 
gate, prosecute, and punish these 



Funding continued from page 3 

"Courtrooms are not fungible. 
Courthouses are not factories," 
Williams explained. "What you need 
in Manhattan is different from what 
you need in New Mexico. In Manhat- 
tan you may be able to walk down 
the hall to use another judge's court- 
room. In New Mexico you may have 
to go across the state to use an 
available courtroom." Williams 
added that courtroom sharing is 
complicated by an expanding 
federal jurisdiction and a judicial 
docket that is unpredictable — judges 
do not determine the number of 
cases heard, criminal cases must be 
tried within a set time, and civil 
cases typically require several 
months of preparation and cannot be 
scheduled on short notice. "Sharing 
courtrooms substantially complicates 



this already difficult task," Williams 
said. 

Peck referred in his testimony to 
the strong partnership GSA has built 
with both the Administrative Office 
and federal judges in the largest 
courthouse construction program 
since the 1930s. "Judges and the 
clerks of the courts are among our 
most demanding and discerning 
clients," Peck said, "and we enjoy the 
give and take with them. We are 
committed to allowing our tenant 
agencies to participate whenever 
possible in the development of our 
projects, and we are working with 
the Judiciary to make them more 
familiar with our processes." 

According to Peck, GSA is not 
only commissioning the best Ameri- 
can architects to build landmark 
federal courthouses in a program of 
design excellence, but GSA also has 



established a successful cost bench- 
marking process to bring those new 
courthouses in on budget. Peck told 
the subcommittee that the overall 
size of a building is the most signifi- 
cant determinant of its cost. And 
while GSA has not found that col- 
legial floors — grouping judges' cham- 
bers together on designated floors 
with courtrooms grouped on other 
floors — generate cost savings, court- 
room sharing and other strategies 
might reduce building volumes and 
square footage and, therefore, costs. 
Security also is of critical impor- 
tance, and GSA is conducting risk 
analyses during design and con- 
struction of new courthouses to 
identify appropriate security mea- 
sures. GSA estimates that security 
concerns have added between 5 and 
10 percent to the costs of the build- 
ings now in design. 



Senior 

Judges' 

Courtrooms 



All judicial councils have 
developed courtroom availability 
policies for visiting judges and 
for senior judges who do not 
have caseloads requiring substan- 
tial use of a courtroom. The 
policy is applied when determi- 
nations are being made regarding 



the construction of courtrooms. 
Other assessed factors include 

• The workload to be handled 
by each judge. 

• The number of years a judge 
is likely to be at the facility. 

• An evaluation of the current 
complement of courtrooms, 



including the special pro- 
ceedings courtroom and any 
other special purpose 
courtrooms. 

An evaluation of the need for 
a courtroom specifically 
dedicated to use by visiting 
judges. 



The Third Branch m August 1998 



riatch, in his opening remarks at 
Senate hearing, said that the bill 
;s not cover any criminal conduct 
already covered under state law, 
that it does create federal crimes 
t did not exist before. In addition 
Arcara, witnesses at the hearing 
uded the U.S. Deputy Attorney 
leral Eric Holder and the daugh- 
of James Byrd, the African- 
erican man recently dragged to 
death allegedly by three white 
i in Jasper, Texas. 
Arcara told the committee that the 
"presents a difficult but crucial 
e for Congress to consider. That 
e is not whether we are 'for' or 
inst' the prosecution of hate 
les. All decent, right thinking 
pie abhor hate crimes. The real 
e before you is whether the acts 
iolence covered by the proposed 
jte, which already are criminal 
nses under state law, and which 
ady may be federal crimes as 
, are not adequately prosecuted 
punished at the present time." 
he scope of S. 1529 is extremely 
id. The bill would provide for 
ral prosecution of a significant 
iber of crimes that are tradition- 
prosecuted in the state systems, 
example, it would make a federal 
ie of any act resulting in the 
ly injury of someone, or the 
npt thereof, when it is motivated 
ie actual or perceived race, color, 
jon, or national origin of any 
on. The bill also authorizes 
•opriations to increase the 
tber of personnel to prevent and 
ond to these crimes, which is an 
essive use of federal resources to 
rce the proposed law. 
While the Judicial Conference 
:aken no official position on this 
' said Arcara, "we believe S. 
appears to be but the latest 
•osal in a trend that seeks — 
isely in our view — to expand the 
inal jurisdiction of the federal 
ts into matters previously 
ecuted exclusively in the state 
ts." 




During the past decade and a half, 
a steady stream of congressional 
enactments have expanded the 
jurisdiction of federal courts over 
larger and larger areas of criminal 
activities traditionally reserved to 
prosecution in the state courts. The 
Judicial Conference has regularly 
expressed concern over this trend 
and has consistently urged that the 
prosecution of most crime should 
remain the responsibility of the 
states. This would allow the federal 
criminal justice system to devote its 
limited resources to prosecuting 
those offenses that it is uniquely 
suited to investigate and prosecute. 

Holder testified at the Senate 
hearing that the Clinton Administra- 
tion "urges the prompt enactment of 
S. 1529." Holder predicted only a 
modest increase in federal hate 



In a congressional hearing that was the focus 
of much media attention, Judge Richard ]. 
Arcara (top of photo), chair of the Conference 
Criminal Law Subcommittee on Legislation, 
testified on federal prosecution of hate crimes 
with a panel of witnesses who included 
federal prosecutors, victims of hate crimes, 
and legal experts. 



crimes prosecutions brought by the 
federal government if the bill were 
enacted. Concurrent federal jurisdic- 
tion in hate crimes is necessary, 
Holder told the committee, "only to 
permit joint state-federal investiga- 
tions and to authorize federal 
prosecution in those instances in 
which state and local officials are 
either unable or unwilling to pursue 
cases that adequately address the 
federal interest in fighting bias 
crime." £v^ 



i: , 

» i 

:! 
t ! 

i 

. i 



Vie Third Branch m August 1998 



Judging Threats 

How Analysts Helps 
U.S. Marshals Service 
Gauge Harm to 
Judicial Officials 

Over the last 20 years, through 
three assassinations of federal 
judges, security experts have been 
trying to develop the expertise to 
forecast when a threat to a judge or 
other members of the judicial family 
may become life-threatening. This 
expertise is especially critical when 
it is not feasible to assign protective 
details for all of the judges who 
receive threats each year. Last year 
alone judges and other judicial 
officials received 650 threats or 
inappropriate communications. 

In an attempt to better assess the 
danger, U.S. Marshals Service 
(USMS) researchers studied the 
more than 3,000 threats received 
since 1980 and their outcomes. What 
they and other researchers learned 
challenged the accepted wisdom 
that a direct threat represents the 



clearest danger. Research showed 
that it is not always the person who 
threatens who poses the greatest 
danger. 

Frederick (Ted) Calhoun, head of 
USMS Operational Research and 
Development, has been involved in 
the development of a program to 
evaluate inappropriate communica- 
tions that takes this conclusion into 
consideration. "Typically, the person 
who really wants to kill someone 
won't announce it," said Calhoun. If 
this is unnerving, Calhoun hastens to 
add that the situation is not hopeless. 
"There are identifiable behaviors," 
he said, "and under the leadership of 
Director Eduardo Gonzalez the 
Marshals Service has shifted our 
focus to look at those." 

The process begins with an 
analysis of the inappropriate com- 
munications. Although judges and 
other members of the judicial family 
know to relay a direct threat from an 
individual to the U.S. Marshals 
Service, deputies also would like to 
hear about inappropriate communi- 
cations. These are communications 
that may not be explicit threats, but 
may cause concern. For example, a 
threat may be as direct as, "You'll get 



Climbing Bankruptcy Filings 

Bankruptcy filings in federal courts rose 8.5 percent in the 12-month period 
ending June 30, 1998. The accompanying table shows how total filings and filings 
by chapter have fared over the last five years. 



Bankruptcy Filings by Chapter of the Bankruptcy Code 
Years Ending June 30, 1994, through 1998 



Year 

1994 
1995 
1996 
1997 
1998 



Total 

845,257 

858,104 

1,042,110 

1,316,999 

1,429,451 



7 
578,903 
581,390 
712,129 
917,274 
1,015,453 



u 

17,098 
13,221 
12,859 
11,159 
9,613 



Chapter 

11 

976 

904 
1,063 
1,006 

845 



13 


Other 


248,246 


34 


262,551 


38 


316,024 


35 


387,521 


39 


403,501 


39 



yours," but inappropriate communi- 
cations can encompass stalking, 
pseudo-legal court filings, obsessive 
admiration, or even references to 
bodyguards, security, or safety. 
Although roughly 14 percent of all 
threats are from habitual threateners, 
each of whom may send 40 to 50 
threats a year, no threat should be 
taken lightly. Anyone receiving 
threatening or inappropriate com- 
munications should report them 
immediately to the Marshals Service. 
Each federal district has a threat 
investigator to handle these com- 
munications. These investigators 
can look at a wide range of areas 
during their investigations, includ- 
ing conducting record checks and 
interviewing the persons making 
the threats or inappropriate commu- 
nications, family members, or co- 
workers. 

The first priority of the Marshals 
Service is to make certain the judge 
or staff member is safe. The official 
may be interviewed to determine if 
anything unusual has occurred at 
home, at work, or while traveling. 
"Many inappropriate communica- 
tions are from people who may be 
very angry over the outcome of a 
court case," Calhoun said, "and the 
protectee may even know the 
individual and be able to provide 
information to help the threat 
investigator assess the seriousness of 
the situation." 

Once safety is assured, the threat 
or inappropriate communication is 
sent to the Marshal Service's 
Analytical Support Unit, where 
research analysts enter what is 
known about the communication 
and the threatener into a nationwide 
statistical database. Thousands of 
threats or communications reported 
since the 1980s are in the database, 
along with their outcomes. Each 
entry has been catalogued by 
upwards of 30 identifying variables, 
including date of the communica- 
tion, how it was delivered, if the 



es. 



The liurd Branch m August 1998 



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itener was identified, the 
ve, etc. Any new threat or 
?ropriate communication and 
iriables will be compared to the 
in the database where the 
>mes were known. Although the 
rity of cases in the database 
nothing happened after the 
1 communication, 3.9 percent 
iolent outcomes. A violent 
me may be assigned, for 
pie, if a judge is threatened but 
less in the case is harmed. 
[Other step in the analysis is the 
\IC 3 (M-3) computer-based 
n. The original MOSAIC was 
oped by Gavin de Becker, an 
rity on celebrity protection, 
mized to fit the particular 
of the Judiciary, M-3 assesses 
Teens inappropriate communi- 
s and threats through a series 



of questions about the behavior and 
background of the subject. Each 
answer is assigned a weight based 
on the importance the response has 
in predicting danger. Some of the 
questions look at the presence of 
"inhibitors" in a threatener's life: 
the things, such as home, family, 
and job, that may be lost if they 
follow through on a threat. "It's 
important to consider," said Debra 
Jenkins, chief of the Analytical 
Support Unit, "that some of these 
inhibitors may be jeopardized 
through court cases." 

Based on interviews with the 
protectee, the database results, M-3, 
and the district's investigative 
results, the Marshals Service devel- 
ops the most appropriate protective 
response for that particular case. 
According to Dennis Chapas, chief of 



the Administrative Office Court 
Security Office, who first used 
MOSAIC in assessing threats and 
inappropriate communications at the 
Supreme Court, the threat investiga- 
tion and assessment program has 
allowed the Marshals Service to 
expedite the assessment part of the 
investigation, which may shorten the 
time protective 24-hour details are 
assigned to judges and minimize 
disruption of their normal schedules. 
"The Marshals Service's initiative in 
this area has been very proactive," 
said Chapas. "They are one of the 
few federal law-enforcement agencies 
to establish a threat investigation and 
assessment program and use a state- 
of-the-art computer-based program, 
like MOSAIC, as a tool in evaluating 
threats and inappropriate communi- 
cations." i 5 ^ 



iciary Benefits Improvement Package Stalls in Congress 



hough Administrative Office 
or Leonidas Ralph Mecham 
O staff continue to explore all 
le options to move legislation 
:ar authorizing improvements 
benefits of judges and Judi- 
mployees, hopes are fading 
approval. The benefits pack- 
red opposition from the Office 
ionnel Management, and it has 
trongly opposed by the 
listration. 

lid-July, Mecham wrote to 
about a long-awaited 
S benefits plan for judicial 
s and employees. The autho- 
language for the plan was 
ed to be included by Rep- 
itive John L. Mica (R-FL), 
an of the House Government 
i and Oversight Subcom- 
on the Civil Service, in the 
ervice Integrity, Performance, 
>mpensation Improvement 



The proposed legislation would 
have established a 5-year demon- 
stration project with a two-year 
extension, and allow judges and 
Judiciary employees to choose 
among various levels of supplemen- 
tal benefits coverage. This proposal 
would not have affected the core 
federal benefits currently available 
to Judiciary employees, but would 
have allowed employees to redirect 
salary to pay for benefits on a pre-tax 
basis. Presently, federal agencies, 
such as the Federal Deposit Insur- 
ance Corporation, Office of the 
Comptroller of the Currency, the 
Federal Reserve and the Farm Credit 
Administration, offer some form of 
pre-tax flexible benefits to their 
employees. 

Unfortunately, several provisions 
of the Civil Service Integrity, Perfor- 
mance, and Compensation Improve- 
ment Act drew the opposition of 
OPM and federal employees unions, 



and the bill never made it out of 
subcommittee. The Judiciary's bene- 
fits plan also was opposed by OPM. 

AO staff then attempted to attach 
the Judiciary's benefits plan to H.R. 
4250, the Patient Protection Act of 
1998. This was rejected because 
House leadership wanted to limit 
amendments to the bill. An alterna- 
tive would have been to introduce 
the plan as a free-standing bill but 
this was doomed when Representa- 
tive Elijah E. Cummings (D-MD), 
ranking minority member on the 
House Civil Service Subcommittee, 
opposed the plan's provisions on 
behalf of OPM. 

Although the Administration 
generally opposes demonstration 
projects such as the one the Judi- 
ciary is proposing, AO staff will 
continue to work with supporters 
such as Representative Mica to 
identify an appropriate legislative 
vehicle. 4^ 



7 



The Third Branch m August 1998 



JUDICIAL MILESTONES 



Appointed: Kermit Victor Lipez, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the First 
Circuit, July 1. 

Appointed: Chester J. Straub, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Second 
Circuit, July 15. 

Appointed: George Caram Steeh, 
III, as U.S. District Judge, U.S. 
District Court for the Eastern 
District of Michigan, July 2. 

Appointed: A. Howard Matz, as 

U.S. District Judge, U.S. District 
Court for the Central District of 
California, July 10. 

Appointed: Stephan P. Mickle, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
Florida, June 22. 

Appointed: Thomas M. Weaver, 

as U.S. Bankruptcy Judge, U.S. 
Bankruptcy Court for the Western 
District of Oklahoma, June 30. 

Appointed: S. Caroline Malone, as 

U.S. Magistrate Judge, U.S. District 
Court for the Eastern District of 
Texas, May 26. 

Appointed: Nan R. Nolan, as U.S. 
Magistrate Judge, U.S. District 
Court for the Northern District of 
Illinois, July 6. 

Elevated: Judge Susan Webber 
Wright, to Chief Judge, U.S. District 
Court for the Eastern District of 
Arkansas, succeeding Judge 
Stephen M. Reasoner, July 23. 

Senior Status: Judge Rudi M. 
Brewster, U.S. District Court for 
the Southern District of California, 
July 1. 



Senior Status: Judge Lenore 
Carrero Nesbitt, U.S. District 
Court for the Southern District of 
Florida, July 19. 

Senior Status: Judge Paul E. 
Plunkett, U.S. District Court for 
the Northern District of Illinois, 
July 10. 

Senior Status: Judge L.T. Senter, 

U.S. District Court for the North- 
ern District of Mississippi, July 30. 

Retired: Judge John G. Da vies, 

U.S. District Court for the Central 
District of California, July 18. 

Resigned: Magistrate Judge John 
W. Fisher, II, U.S. District Court 
for the Northern District of West 
Virginia, June 30. 

Deceased: Judge Frank X. 
Altimari, U.S. Court of Appeals 
for the Second Circuit, July 20, 
1998. 

Deceased: Judge Daniel Scanlon, 
Jr., U.S. District Court for the 
Northern District of New York, 
July 17. 

Deceased: Senior Judge Philip C 
Wilkins, U.S. District Court for 
the Eastern District of California, 
July 8. 

Deceased: Judge Joseph P. 
Willson, U.S. District Court for the 
Western District of Pennsylvania, 
August 3, 1998. 

The July Milestones inaccurately 
reported that Senior Judge David S. 
Doty (D. Minn.) retired. We are 
happy to report he is a very active 
senior judge (as of June 30, 1998) 
and has not retired. Our apologies 
for the error. 



THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Court* 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http:/ /www. uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 



EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Contributing to this issue: Sara Walte 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond(§<ao.uscourts.gov. 






JUDICIAL BOXSCORE 

As of August 1, 1998 

Courts of Appeals 
Vacancies 
Nominees 



District Courts 
Vacancies 
Nominees 

Court of International Trade 
Vacancies 
Nominees 

Courts with 
"Judicial Emergencies" 



3 



For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Branch m August WW 



Hirtroom Technology Draws Positive Response 



t is becoming increasingly clear 
courtroom technologies can 
litate trial management, reduce 
time and associated costs, and 
rove fact-finding, jury under- 
ding, and access to court pro- 
lings. But how is courtroom 
nology, particularly evidence 
entation and videoconferencing 
?ms, perceived by judges, 
■neys, and jurors? 
t its June 1998 meeting, the 
rial Conference Committee on 
jmation and Technology re- 
;d the results of an assessment 
lect technologies used in 
trooms. Although the universe 
ita was relatively small and 
h of it was generated by those 
are enthusiastic about technolo- 
the response about the utility 
necessity of these technologies 
urtroom proceedings was quite 
ive. Here are some of the 
lights on two such technologies: 

Evidence Presentation 

deo evidence presentation 
\ologies display evidence 
ronically and simultaneously to 
fone in the courtroom through 
itors placed at the judge's bench, 
box, witness stand, and counsel 
s. Most judges who participated 
I assessment indicated that 
) evidence presentation tech- 



83% of judges said video 
idence presentation helped 
em manage the proceeding 
tiile more than 90% of jurors 
dicated that they were able to 
e evidence clearly and follow 
e presentations. 



;ies improve their abilities to 
ige proceedings, reach deci- 
, question witnesses and 



understand testimony and evidence. 
For example, of those judges re- 
sponding, 87 percent thought that 
video evidence presentation tech- 
nologies helped them to understand 
the witness better, 81 percent 
thought it helped them understand 
testimony better, 72 percent thought 
it improved their abilities to question 
witnesses, and 83 percent found the 
technologies helped them to manage 
the proceeding. These improvements 
seem to be due primarily to their 
being able to view exhibits and 
contested materials at the same time 
as everyone else. 

More than 90 percent of the jurors 
who responded indicated that they 
were able to see evidence clearly and 
follow the attorneys' presentations. 
A similar percentage believed that 
the technologies made it easier for 
attorneys to present some evidence. 
As a result, most jurors believed that 
they were able to remain more 
focused on testimony and evidence, 
although a substantial minority 
would have preferred to handle the 
evidence in some instances. 

Videoconferencing 

Videoconferencing can be used to 
provide live two-way audio and 
video transmission between a court 
and a remote site. It offers opportu- 
nities to conduct some court pro- 
ceedings without the 
necessity of having all 
participants present in a 
single courtroom. It ap- 
pears to be most useful in 
routine pretrial matters or 
in circumstances where it 
represents an obvious 
benefit to both counsel and 
the court. Judges and 
attorneys said they liked 
videoconferencing because 
it can save time and travel costs. 
Judges also noted that by reducing 
the need to move prisoner partici- 



pants for proceedings, it enhanced 
security. 

Judges and attorneys did not find 
videoconferencing had a big impact 
on several aspects of the proceedings 
in which it was used. For example, 
none of them found it had a great 
effect on their preparation time, the 
length of the proceedings, or their 
ability to examine or understand 
remote witnesses. The benefits cited 
almost universally by judges and 
attorneys was the savings in travel 
time and costs and improved flexibil- 
ity in scheduling. 

Next Steps 

Based on these positive findings, 
the committee requested that the 
Administrative Office develop and 
propose a plan for the implementa- 
tion of courtroom technologies over 
time. The committee will consider 
this plan at its next meeting. Of the 
technologies addressed in the study, 
video evidence presentation and 
videoconferencing require significant 
investment. The committee deter- 
mined that core components for 
these technologies should be identi- 
fied and funds appropriated to the 
Judiciary should be used to pay for 
them. 

Recognizing the necessity of pro- 
viding some limited funding for 
courtroom technologies before a 
long-term implementation plan is 
developed, in January 1998 the com- 
mittee approved an interim funding 
policy to be used to evaluate, ap- 
prove, and fund requests. Priority is 
given to requests from courts under- 
going new construction or major ren- 
ovation projects, as every such court- 
room should be equipped with the 
appropriate infrastructure to support 
this technology. Next in priority are 
special requests from courts that 
have a demonstrated need for 
courtroom technologies because of 
special circumstances. 



The Third Branch u August 1998 



INTERVIEW 



An Interview with Robert A. Peck, PBS Commissioner 



Robert A. Peck was appointed Com- 
missioner of the Public Buildings Service 
(PBS) of the U.S. General Services Ad- 
ministration in December 1995. As head 
of PBS, he is in charge of asset manage- 
ment and design, construction, leasing, 
operating, and disposals for a real estate 
portfolio of more than 300 million gross 
square feet. PBS owns or leases nearly all 
civilian federal office space, courthouses 
and border stations, and many labora- 
tories and storage facilities. 



Q # The Federal Buildings Fund 
• experienced a shortfall last 
year. Can you tell us what happened 
and what long-term effects, if any, 
the shortfall has had? What is the 
current status of the fund? 

A. The term "shortfall" is 
• probably a self-inflicted 
wound because it describes some- 
thing that didn't happen. We did not, 
as some people suspect, overspend 
our budget. We can't do that by law. 
Unlike most federal agencies that are 
handed a portion of the taxpayers' 
dollars to spend, PBS runs a lot like a 
real estate business. We generate our 
own revenues by charging rents to 
federal agencies, to the courts, and to 
everyone else for whom we provide 
space, as the law requires, although 
our budget is sometimes supple- 
mented by general appropriations. 

We generate over $5 billion a year 
in rent revenues. When real estate 
rents started to escalate in the mid- 
1990s, as a result of a good economy, 
the Office of Management and Bud- 
get and Congress decided not to 
allow us to increase our rents to 
market rate. At the same time, we 
had an administrator, who looking 
back at the market over the previous 
five years thought, and I think 
rightly, that we had probably 



charged too much rent in some cases. 
So in order to make up for that, he 
unilaterally dropped rents, just as 
market rents were increasing. To 
make a long story short, our rev- 
enues took a big dip for two years, 
below what we had projected to 
Congress we would generate and 
spend. 

To cover that gap, OMB directed 
us to reduce spending in a single 
year to make up for the two-year 
revenue drop. If we had been in the 
private sector, we would have 
described it as an operating loss for 
two years, and in accounting terms 
we would have taken a charge 
against revenues. 

This reduction concerned judges 
and a lot of us as well. You can't stop 
air conditioning buildings or paying 
guards, maintenance crews, and the 
like. We didn't sacrifice security or 
building operations, but we cut back 
on repairs and alterations and on 
new construction. At the time, the 
Administration said one reason it 
was not going to propose new starts 
on building projects in FY98 was to 
get over this revenue gap. 



Q # Some judges believe that the 
• rent charged for courthouses 
is too high. How are rents deter- 
mined on federal courthouses? 

A # Actually, in many cases the 
• rents are probably too low, 
and that's a subject I have discussed 
with the members of the Judicial 
Conference Committee on Security 
and Facilities. We are required by 
law to charge a market rent. The 
location of a building has a lot to do 
with how the market prices its rent. 
In many cases, a mediocre building 
in a good location will charge a 
higher rent than a good building in a 




mediocre location. Many court- 
houses are in great locations. 

The fundamental fact is this: 
courthouses are unique buildings. 
They are not comparable to ordinary 
office buildings in almost any sense. 
More space has to be devoted to 
circulation, for example, and to 
security needs. With that space, and 
the high courtroom spaces, construc- 
tion costs are higher than in an office 
building of the same gross size. They 
also cost more to operate than office 
buildings. Those costs translate 
directly into the rent charged. 

Because they are unique build- 
ings, with no potential market other 
than the courts, private real estate 
professionals would calculate rents 
in a way that any student in Business 
101 could calculate: amortize the cost 
of the building over 20 or 30 years 
and back it up into a rent that gives 
the government a return on the 
money it spent to build the court- 
house. That's a way of setting the 
rent we are proposing to the Judi- 
ciary. It's very business-like and 
market-oriented. It is also a fact that, 
in a lot of cases, those rents will be 
higher than the office building across 
the street. But the court rents that we 
currently set by rule-of-thumb 
appraisals are also higher than the 
rents for nearby office buildings. 



Q # You describe your process 
• for charging a market-based 
rent for court facilities. Isn't that rate 
considerably higher than the cost to 
operate, maintain, and repair these 







The Third Branch m August 1998 




emment-owned building? What 
pens to rental receipts you obtain 
i courthouse that are in excess of 
Dperating costs for that building? 

, In 1972, the Federal Property 
l • and Administrative Services 
was amended to require GSA to 
ge rents equivalent to those in 
:ommercial market. Those rents 
ie commercial market, obviously, 
r more than just costs of operat- 
ind maintaining the buildings: 
include the costs of repaying 
s and a profit margin. In GSA, 
r ent proceeds over and above 
ating costs are the only funds we 
■eliably count on to be available 
lajor building repairs and 
vations and construction (costs 
h in the private sector are 
ided through insurance or 
swing in the capital markets), 
stated before, we are not permit- 
o borrow to meet capital needs. 



| . Has GSA considered alterna- 

• fives to current procedures 
mding federal courthouses, 
ding public-private partner- 

; or lease-to-own? 

. Yes, we have discussed with 

• OMB and Congress a 
ber of ideas that some have 

ed creative financing, but which 
ten to point out are creative only 
e federal government. It's the 
)f financing the private sector 
>tate and local governments 
been doing for years, like sale 



leasebacks, lease purchases, and joint 
ventures with private developers. 
Another option would be for us to 
have access to the federal financing 
bank, which means we would 
borrow money inside the govern- 
ment and not always have to ask for 
appropriations for construction. 

The problem that we run into with 
most of those ideas is that they seem 
to run afoul of various rules, most 
notably the scoring rules, through 
which the government accounts for 
capital expenditures. 

I don't think that we or the 
Judiciary should give up pushing the 
envelope on this because, to me, the 
way we do accounting for govern- 
ment real estate is illogical. I think 
capital real estate expenditures 
should be treated differently from 
operating expenditures in the federal 
budget, just as they are treated dif- 
ferently in most state budgets. How- 
ever, this is a debate that has been 
going on for a long time and involves 
complex issues concerning the role of 
the federal budget in the national 
economy, so I do not hold out much 
hope for a change any time soon. 



Q # Many new federal court- 
• houses are being recognized 
for design excellence. Why is court- 
house design today so much better 
than courthouse design 15 to 20 
years ago? 

A. Beginning with Washington 
• and Jefferson, we started 
building government buildings that 



were some of the best buildings in 
the country, and in fact continued to 
do so up until World War II. Interest- 
ingly, up until then most of the 
buildings were designed by archi- 
tects who were civil servants. By the 
1950s, the country was building a lot 
of fast, cheap stuff. There were a 
number of efforts in the 70s to 
change this. I worked for the Na- 
tional Endowment For the Arts in a 
little group that was trying to 
improve government architecture to 
little or no avail. In the early 1990s, 
with the help of Gerald Thacker of 
the Administrative Office, who was 
the acting commissioner of PBS for a 
critical six-month period, GSA's chief 
architect Ed Finer introduced a 
design excellence program. They 
called together a group of private 
sector contractors and architects, and 
asked what we were doing wrong 
and how could we make it better. 
With design excellence, I think we've 
found our way. We are hiring the 
best American talent there is and 
putting up great buildings. 



Q # What has been done to im- 
• prove security in federal 
courthouses since the bombing of the 
Alfred P. Murrah Building in Okla- 
homa City? 

A. Security is a huge issue with 
• us since the bombing of the 
Murrah Building — and as we're 
talking three days after a gunman 
entered the U.S. Capitol and killed 
two officers. Clearly public buildings 
and public officials, like judges, 
attract a lot of direct focussed threats. 
On the other hand we also are com- 
mitted to the idea the public should 
have access to public buildings. 

Since Oklahoma City, we estimate 
we're spending an additional 5 to 10 
percent on each courthouse project to 
build in security. 

There is room for some creativity 
on security and we've been pushed 

See Interview on page 12 



11 



The Third Branch m August 1998 



Interview continued from page 11 

towards this, often by the judges, 
who believe, sometimes more than 
our security consultants, that the 
public has a right to be in the court- 
houses and to see what's going on. 
For example, in one courthouse in 
Minneapolis the judges worked very 
hard to make sure that the security 
was pulled to the back of the lobby 
so that the public could walk into the 
building. In Tacoma, Washington, 
we renovated an old train station 
and turned it into a courthouse, and 
the lobby is now an art gallery with 
exhibits in it. At the judges' insis- 
tence, a sign at the security point 
says, "Please enter, and please feel 
free to come through our security 
check point and visit your court- 
house." So there are ways in which 
we can still invite the public in. 

Finally, we are trying to be a little 
more sophisticated about security 
outside the courthouses. For example, 
in one of our new courthouses, the 
security devices around the building 
are going to be the subject of our art 
and architecture project. We've told 
the artist this needs to be an object 
that withstands a certain kind of 



force, but you decide what you will 
build. There are lots of things we can 
put around the courthouses that 
won't be obtrusive. For example, a 
tree of a certain circumference or a 
reinforced bench can stop a vehicle. 



Q # The Judiciary has experi- 
• enced some difficulties with 
OMB over the federal courthouse 
building program. Do you see any 
remedies that would improve our 
working relationship? 

A. Everyone is concerned about 
• costs, as they should be. We 
are, after all, talking about spending 
another $5 billion on courthouses, 
and a total of somewhere around $8 
billion when all is said and done. But 
as I say to members of Congress and 
to reporters who sometimes worry 
about the quality of carpeting on the 
floor, if you really want to talk about 
saving dollars on a construction 
project, you have to talk about the 
size of the building. The basic cost of 
the building is set the day you decide 
how much space you have to enclose 
because that determines 90-95 per- 



cent of the actual cost of that building. 

In a courthouse with 40 judges, if 
we have to provide 40 courtrooms 
with all the attendant spaces, that's 
obviously going to cost us more 
money than if we had to provide 30. 
There are two obvious issues here 
that make this more complicated 
than simply saying we are going to 
share courtrooms: Once you're be- 
low one courtroom for each active 
judge, no one quite knows what the 
right number of available courtrooms 
should be, and a large part of man- 
aging the caseload is the judge's abil- 
ity to say there is a courtroom avail- 
able because people then settle cases. 

My concern about some proposed 
courtroom utilization is that, at least 
on first impression, they don't seem 
to contemplate how complicated this 
could be. Now, I have to say, on the 
other hand, you can always make 
things so complicated that you can 
never find a solution. If I had a 
message for the Judiciary it would 
be let's all work together to do a 
courtroom utilization study that we 
think makes sense, and do it sooner 
rather than later, because this issue 
continues to dog us. £s^ 



THE THIRD BRANCH 

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****** » '" 9 



udiciary Appeals Appropriations Levels 



Letters appealing the Judiciary's 
:al year 1999 funding levels greeted 
use and Senate appropriations 
conferees on their return from 
ir August recess. The letter to 
conferees on HR. 4276, the 
Timerce, Justice, State and Judi- 
■y bill, from Judicial Conference 
iget Committee chair Judge John 
ybum and Administrative Office 
ector Leonidas Ralph Mecham told 
ferees that with the Judiciary's 
wing workload, the level of 
>ropriations in both the House and 
ate bills are insufficient to sustain 
rent levels of services. Conferees 
I begin consideration of the House 




UdiCiaPy Justice Lewis F. Powell Jr. was buried in Richmond, 
„ Virginia last month at services attended by more 



than 900 people, including all current and retired 
rPieilD Supreme Court members. See story on page 3. 



and Senate appropriations bills 
sometime in September with the goal 
of passing all appropriations bills 
before the planned adjournment of 
the 105 th Congress in October. When 
current estimates of fees and 
carryover are included, the Senate bill 
gives the Judiciary $4.01 billion in 
total obligations, and the House gives 
the Judiciary $4.08 billion. The 
Judiciary's revised request is for an 
obligational level of $4.15 billion for 
FY99. 

"We recognize that you have 
many competing demands for 
the limited funds and appreciate 
the increases that you have pro- 
vided," the letter 
said. "However, 
we would be 
remiss if we 
failed to point out 
that the obliga- 
tion levels 
provided for in 
both the House 
and Senate 
versions of H.R. 
4276 are insuffi- 
cient to fund the 
resources re- 
quired by the 
courts to main- 
tain the current 



Courts Discover Internet's Possibilities pg. 2 

Vacancies Threaten U.S. Sentencing Commission pg. 4 

Chairs Named to Judicial Conference Committees pg. 9 



Newsletter 
of the 
Federal 
Courts 



Vol. 30 
Number 9 
September 1998 




levels of services considering their 
growing workload." 

Caseload Growth 

The Judiciary anticipates that 
even at the higher funding level 
provided by the House appropria- 
tions bill, Judiciary funding will 
fall short of what is needed. 
"[B]ased on existing caseload for 
fiscal year 1998 as well as antici- 
pated carryover into fiscal year 
1999," Heyburn and Mecham 
warned, "the obligation level 
provided by the Senate bill is $138 
million below what is needed to 
perform the Judiciary's constitu- 
tional and statutory responsibili- 
ties. Even at the higher House 
level, fiscal year 1999 funding will 
fall $69 million short of current 
estimates of total Judiciary require- 
ments." 

The Judiciary's caseload is 
experiencing a dramatic growth, 
particularly in the criminal area. 
Criminal filings grew by 5.2 per- 
cent in FY97 and are expected to 
grow by another 13 percent in FY98. 
The growth is the result of increased 
cases brought by the Department 
of Justice, which is likely to receive 
significant increases from Congress 
for its investigative and litigative 
functions. Growth in the number of 
border patrol agents, FBI, DEA and 
INS agents, and U.S. attorneys 
increases the number of criminal 
investigations and prosecutions 
that ultimately end up in the 

See Appeal on page 5 



i I 



Courts Quick to Discover Internet's Copobilities 



Federal courts have been quick to 
discover just how well Internet 
access complements the public's 
need for information. From on-line 
rulings to forms on the web, courts 
are using the Internet to make access 
to records easier, filing more conve- 
nient, and some routine legal tasks 
more efficient. What is most impres- 
sive, however, may be the creativity 
individual courts are showing in 
their use of the Internet. 

Federal court presence on the 
Internet is widespread. The Judiciary 
hosts its own website at 
www. uscourts.gov with general 
information on the structure of the 
federal Judiciary, statistics, rules, 
news releases, answers to frequently 
asked questions, and much more. 

Many of the circuits post their 
opinions on the Internet, either on 
their own websites or in cooperation 
with a law school. In the 5 th Circuit, 
new opinions are released twice a day. 
An opinions subscription list allows 
members of the public to automati- 
cally receive a WordPerfect copy of 
each published opinion via e-mail. 

A look at the links on the federal 
Judiciary's homepage shows that 59 
districts post such information as 
schedules, local rules, fee schedules, 
and job vacancies. Several courts offer 
electronic filing capabilities and 
many more, such as the Northern Dis- 
trict of Mississippi, put filing forms 
on the Internet to save attorneys the 
legwork and time it takes to come 
down to the courthouse. An assess- 
ment project involving the district 
courts for the Northern District of 
Texas (www.txnd.uscourts.gov.) 
and the District of South Dakota 
(www.sdd.uscourts.gov), and 
the bankruptcy courts for the 
Northern District of Texas 
(www.txnb.uscourts.gov) and the 
Southern District of California 
(www.casb.uscourts.gov) is testing a 
public access network on the Internet 
through the Judiciary's gateways. 



These websites would provide the 
same information currently available 
on dial-up PACER (Public Access to 
Court Electronic Records) systems, 
which allow users with personal 
computers to dial into a district or 
bankruptcy court computer to 
retrieve electronic case information 
and court dockets. The Southern 
District of California also will 
provide imaged documents via the 
Internet. 

And the list goes on. For example, 
two courts have shown an innovative 
flair in developing products for the 
Internet. 

CnurtWeb Online Rulings Information System 

The District Court for the 
Southern District of New York 
(www.nysd.uscourts.gov) recently 
initiated the CourtWeb On-Line 
Rulings Information System. Court- 
Web notifies attorneys or law firms 
within 15 minutes of the entry of any 
ruling or decision on any case the 
firm has registered for on the website. 
For example, a firm or practitioner 
would enter the case numbers for the 
cases they are following in the dis- 
trict court. When a ruling in that case 
or cases is posted to CourtWeb, an 
automatic e-mail message is sent 
directly to the attorney or firm's con- 
tact person. The message includes all 
the information contained in the 
ruling entry. More than 30 of the dis- 
trict's judges participate in the sys- 
tem with more than 164 law firms 
nationwide, including corporate law 
departments, federal, state and local 
governmental agencies registered to 
receive information. The system also 
can be searched by a judge's name or 
case number. A brief summary of the 
ruling is included in each entry, in 
addition to information such as the 
caption, case number, date, and 
judge's name. The system has been 
enhanced recently to allow attorneys 
to view the actual ruling or opinion 
document as well. The system 



software can be used by any court 
and more information on CourtWeb 
is posted at www.nysd.uscourts.gov. 
CourtWeb was begun at the direc- 
tion of the district's technology 
committee and has been shepherded 
through to completion by the District 
Court Executive's Office. "One of the 
purposes of CourtWeb," said District 
Court Executive Clifford Kirsch, "was 
to cut down on the phone calls coming 
to chambers staff from attorneys 
checking on cases, and it has suc- 
ceeded at being a time saver. For us, 
CourtWeb is making the best use of 
technology. It's designed for the le- 
gal community, but it's not restricted 
to them. Anybody who wants to look 
at the system can do it." 

Defining an Electronic Filing Court Interface 

Courts often develop local 
solutions to address particular 
needs when no national standard 
is available. For example, over 
the past few years the District 
Court for the District of New 
Mexico (www.nmcourt.fed.us) 
has developed the Advanced 
Court Engineering (ACE) system 
to allow the court to accept filings 
electronically via the Internet. In 
an effort to increase the volume 
of electronic filing, the court has 
recently undertaken a follow- 
on initiative to define a standard 
interface to the ACE system that 
will let third-party software suppli- 
ers develop law office software 
applications that could ease the 
electronic filing process. The intent 
is to make electronic filing another 
feature that could be integrated 
into existing law office software 
products by third-party vendors 
to complement law office systems 
that provide such functions as 
appointment calendars, case man- 
agement, noticing, and billing. 
Rather than using the current 
interactive Web browser interface to 
ACE, attorneys will have the option 
to file electronically via more famil- 
iar law office software. Additionally, ^ 



The Third Branch u September 1998 



Justice Lewis F. 
Powell Jr., died last 
month at age 90, following a legal 
career that included 15 years as an 
Associate Justice on the Supreme 
Court. Chief Justice William H. 
Rehnquist, who joined the court on 
the same day as Powell, delivered 
the eulogy at services in Richmond, 
Virginia. In a statement following 
Powell's death, Rehnquist said, 
"Justice Lewis F. Powell Jr. was the 
99 th Justice to serve on the Supreme 
Court of the United States. He and 
I took the Oath of Office on Janu- 
ary 7, 1972, and from that day I 
prized my association and friend- 
ship with him throughout his 15 
years of service on the Court and 
after his retirement in 1987. He was 
the very embodiment of 'judicial 
temperament'; receptive to the ideas 
of his colleagues, fair to the parties 
to the case, but ultimately relying on 
his own seasoned judgment. His 
years of diverse experience that he 
brought to the bench gave him a 
fund of common sense which is es- 
sential to the make-up of every great 
udge. He was also the epitome of a 
Virginia Gentleman in the very best 
sense of the phrase. I know that all 
Df us who served with him will 
niss him." 

A private practitioner in Rich- 
nond, Powell first received 
lational attention as president of 
:he American Bar Association in 
1964. He turned down an appoint- 
ment to the Court in 1969, but 



The Lawyer's Skill Became the Judge's Excellence 



ilk filers, such as bankruptcy 
editors potentially could develop 
purchase software to enable 
utomatic" filing from their data- 
se applications directly to the 
urt's ACE database. 
The new initiative, called Exten- 
)le Markup Language Court 
terface (XCI), is an attempt to 
aracterize the electronic filing 
ocess of ACE in terms of a precise 
ecification, using a recently 




Associate Supreme Court Justice 

Lewis F. Powell Jr. 

1907-1998 

accepted President Nixon's second 
invitation a few years later. He was 
the first Virginian on the court since 
before the Civil War. Powell quickly 
developed a reputation as a consen- 
sus builder on the court. Associate 
Justice Anthony M. Kennedy said of 
Powell, "The American Judiciary has 
its lasting strength in its close ties to 
the attorneys who practice law. The 
life and career of Lewis Powell are 
emblematic of this close, necessary 
bond between the bench and bar. 
Lewis Powell came to the Court with 
no previous judicial experience, but 
with a towering reputation as a mar- 
velous lawyer. He soon demon- 



strated to the Court 
and to the nation that 
the lawyer's skill soon becomes the 
judge's excellence." 

Associate Justice Sandra Day 
O'Connor, who described Powell as 
one of the finest people she had 
ever known, said he "cared deeply 
about rendering justice in every 
matter in which he participated." 
Likewise, Associate Justice John 
Paul Stevens called him "a loyal 
and exceptionally wise man." 

Associate Justice Antonin Scalia 
said Powell was "the sort of man 
who made those who practice law 
proud to be members of his profes- 
sion. He was a skilled advisor and 
advocate, a careful and even- 
handed judge " During World 

War II, Powell had served in the 
Army Air Corps intelligence unit, 
and Associate Justice Stephen G. 
Breyer noted Powell's military 
career, along with his work at the 
bar and on the bench, was part of 
his service to the nation. "He put 
into practice our profession's 
highest ideals," Breyer said. "He 
was a superb judge and a marvel- 
ous human being." Retired Associate 
Justice Byron White called Powell 
"perhaps the epitome of a gentle- 
man and a great lawyer. He was a 
fine Justice and a great friend of 
mine." Powell lived, said Associate 
Justice Ruth Bader Ginsburg, as the 
prophet Micah counseled, "doing 
justice, loving goodness, and walk- 
ing modestly with his God." £v^ 



adopted Internet standard called 
Extensible Markup Language (XML), 
which is an enhanced form of the 
standard HTML web page descrip- 
tion language. XML contains facili- 
ties for defining data structure and 
content, which can be used to define 
electronic filing transactions that can 
be processed automatically by the 
ACE software. The XCI specification 
is currently under development and 
will include capabilities to handle 



electronic filing (including attach- 
ments), docket entry generation, 
document security, message authen- 
tication, and filing confirmation. By 
explicitly defining the data entry 
interface to ACE, New Mexico hopes 
to encourage third-party vendors to 
enhance their existing law office 
software offerings (or develop new 
ones) to provide the electronic filing 
capability to a broader cross-section 
of the practicing bar. &. 



, i 



The Third Branch m September 1998 



Sentencing Commission May Lose Commissioners ... and Ability to Act 



If Congress adjourns this October 
without confirming or reappointing 
at least four commissioners to the 
U.S. Sentencing Commission, no 
amendments can be made to the U.S. 
sentencing guidelines, including 
action on any of the various congres- 
sional directives to the Commission 
contained in recently enacted legisla- 
tion. That is because there would be 
seven vacancies on the seven- 
member Commission. Judge Richard 
P. Conaboy, the Commission's chair, 
has announced his resignation 
effective October 31, 1998. 

A quorum of four commissioners 
is required to amend the guidelines, 
and three vacancies already exist 
among the seven voting members of 
the Commission. Three members, 
whose terms have expired, remain 
but they continue to serve until either 
a successor takes office or Congress 
adjourns. When the 105 th Congress 
winds up sometime this fall, the 
terms of these commissioners will 
also expire — and Conaboy departs in 
November. The Commission has 
been without its full complement of 
commissioners since 1996. 

By statute, the President appoints 
the voting members of the Commis- 
sion with the advice and consent of 
the Senate. One member is appointed 
by the Senate as chair, and three mem- 
bers by the President as vice-chairs. 
At least three of the members shall be 
federal judges, and not more than 
four of the Commission members 
shall be members of the same politi- 
cal party. Of the three vice-chairs, not 
more than two shall be members of 
the same political party. On a num- 
ber of occasions, the Judicial Confer- 
ence has offered its recommendations 
to the President for the vacancies to 
be filled by federal judges. 

And what happens if, come 
November, the Commission is 
without commissioners? "I'm an 
optimist at heart," said Conaboy. 



It was 1 994 when Wayne 
Anthony Budd, (photo left) 
Judge Deanell Reece Tacha CIO"' 
Cir.) (second from right) and 
Michael Goldsmith (photo right) 
posed with U.S. Sentencing 
Commission chair Judge Richard 
P. Conaboy at their swearing-in 
ceremony as commissioners on 
the U.S. Sentencing 
Commission — the last time 
commissioners were named. And 
unless Congress acts before it 
adjourns, the Commission soon 
will be without commissioners. 



"The Commission will survive. We 
will be handicapped, and we may 
not be able to do the things Congress 
feels are important, but we will 
survive." 

In the past, Congress has fre- 
quently requested the Commission to 
amend sentencing guidelines in light 
of new crime legislation, or it may 
request studies to gauge the impact 
of a change in criminal law. Follow- 
ing the 1994 crime bill, over 50 
amendments were made to the U.S. 
sentencing guidelines. "Almost on an 
annual basis, Congress directs us to 
add an amendment," said Conaboy. 
"Last year we had a moderate load 
with approximately 26 amendments, 
and this year we've had 18. Typi- 
cally, half of the amendments are 
congressionally related, but a fair 
number have been the resolution of 
circuit conflicts in interpretation of 
the guidelines." 

What happens to these directives 
if there are no commissioners to 
vote? As an example, Conaboy 
cited a congressional directive 
enacted earlier this year to study 
telemarketing fraud and to in- 
crease penalties for the crime, if 
appropriate. "We can't comply if 
there aren't enough votes," said 
Conaboy. 

The Commission's work extends 
well beyond amending the sentenc- 
ing guidelines, and it is this work 




that Conaboy said will continue, 
with or without commissioners. 
"The good news is that we'll con- 
tinue the Commission's research, 
legal analysis, and training of people 
in the field to understand and use > 



Commission Choir to Resign 

As The Third Branch went 
to press, the U.S. Sentencing 
Commission announced that 
its chair, Judge Richard P. 
Conaboy, would resign effective 
October 31, 1998. Conaboy's 
decision allows the President to 
appoint a full slate of commis- 
sioners to the seven-member 
Commission. 

"My leaving at this juncture 
ultimately is in the best interests 
of the Commission," Conaboy 
said in a statement. "Both sen- 
tencing policy and the operation 
of the Commission are better 
served if the incoming commis- 
sioners are accompanied by a 
new chairman. Otherwise, the 
very important work of the 
Commission is disrupted by my 
departure a year or so into the 
new commissioners' terms. . . .My 
only regret is that I won't be 
working as closely with so many 
people I have come to respect and i 



The Third Branch m September 1998 



ie guidelines. That's the nucleus of 
rhat we do." Currently, the Com- 
ussion is either preparing or has 
.infracted for reports on pre- and 
ost-guideline sentencing disparity, 
laracteristics of persons receiving a 
eparture, the operation of the 
rganizational guidelines, and 
arious topics for November's 
leeting of the American Society of 
riminology. 

"Approximately 50,000 people 
•e sentenced in federal court every 
?ar," said Conaboy. "Add to that 
le number of victims of crime, and 
3u have a picture of the number of 
?ople whose lives are impacted by 
ie sentencing guidelines. It's an 
lormous responsibility for the 
deral Judiciary, and the sentencing 
-ocedure needs to be working well, 
lat's the importance of the Sentenc- 
g Commission." £»^ 




ige Richard P. Conaboy 



Imire. I have no regrets about the 
Drk we have accomplished." 
maboy strongly urged that all 
cancies be filled immediately, so 
ere will be no interruption of the 
)mmission's work. 
Conaboy was confirmed as chair 
the U.S. Sentencing Commission 
October 6, 1994. He also serves as 
strict judge for the Middle District 
Pennsylvania. 



Appeal continued from page 1 

courts. Without sufficient resources, 
the courts could become a bottleneck 
in the criminal justice system. 

In addition to appeals for addi- 
tional funding for the Court of 
Appeals for the Federal Circuit, the 
Court of International Trade, and the 
Federal Judicial Center, the Judiciary 
urged Senate and House conferees to 
change language in the appropriation 
bills' report in the following areas. 

Senate Language 

The report accompanying the 
Senate appropriation bill recom- 
mends what amounts to a 25 percent 
cut in chambers staff. While the 
rationale is that productivity im- 
provements resulting from automa- 
tion advances reduce the need for 
staff, in reality any productivity 
savings already have been offset by 
the large increase in the caseload per 
judge. The cuts recommended by the 
Senate would significantly reduce 
the ability of judges to dispose of 
cases in a prompt and fair manner. 

The Senate report also recommends 
that judges' travel funds be reduced 
20 percent. Since the bulk of judges' 
travel involves case-related work, the 
reduction would have a significant 
impact on how the courts accomplish 
their responsibilities and may force 
some litigants to travel long dis- 
tances to have their cases tried. 

The Senate report includes 
language directing the Judiciary to 
conduct a comprehensive study on 
sharing courtrooms. The Judicial Con- 
ference had previously studied the 
issue and concluded that in the inter- 
est of the effective administration of 
justice, a policy of one courtroom for 
each active judge is required. The 
RAND Corporation, in an indepen- 
dent review, advised that further 
study would be costly and inconclu- 
sive. 

Defender Services Program 

The amount of funding provided 
in both the House and Senate bills 



is well below the level required to 
fund the defender services program. 
With the number of representations 
under the program expected to 
increase by 8 percent in FY99 and the 
number of more expensive capital 
representations expected to grow by 
22 percent, an increase is necessary. 
A $5 panel attorney rate increase is 
requested to avoid a crisis in the 
criminal justice system due to an 
inability to find qualified attorneys 
because of the low hourly rates 
currently paid. 

A provision in the Senate bill 
would also limit monthly payments 
to panel attorneys to the compensa- 
tion provided to the U.S. attorney in 
that district. This statutory change 
has the potential to disrupt proceed- 
ings mid-case if the limit is exceeded 
in a month and to install a cumber- 
some monitoring system to track 
payments. 

FY99 Treasury and General Government 






■ ■■'■■.■■■■ 

•,•'■•■•'■■ 



Letters have also been sent to 
congressional conferees appealing 
funding levels for courthouse 
construction projects in the FY99 
Treasury and General Government 
appropriations bill. The letters ask 
conferees to reconsider the language 
in the bill that denies a cost-of-living 
salary adjustment for members of 
Congress, judges, and Executive 
Schedule officers. 

In addition, conferees are being 
urged to delete section 404 of the Sen- 
ate bill, a provision requiring that new 
courthouse construction projects 
requested in FY2000 meet design 
guide standards, reflect Judicial 
Conference priorities, and be accom- 
panied by a courtroom utilization 
study. The Judiciary already com- 
plies with the intent of section 404. 

The Judiciary also requests an 
appropriation to achieve Year 2000 
computer compliance. Funding for 
compliance is provided to the Office 
of Management and Budget only for 
executive branch agencies. £L 



The Third Branch m September 1998 



De fender Services Program 



Containing Costs While Delivering Effective Representation 



The mission of the Defender 
Services program is to ensure that 
the right to counsel guaranteed by 
the Sixth Amendment, the Criminal 
Justice Act (CJA), and other congres- 
sional mandates is enforced on 
behalf of those who cannot afford to 
retain counsel and other necessary 
defense services. By fulfilling its 
mission, the Defender Services 
program helps to maintain public 
confidence in the nation's commit- 
ment to equal justice under law and 
ensure the successful operation of 
the constitutionally-based adversary 
system of justice by which both 
federal criminal laws and federally 
guaranteed rights and liberties of all 
citizens are enforced. 

The Judiciary has no control over 
the number of individuals for whom 
it must provide services. This is a 
function of congressional action, 
Department of Justice policies, and 
U.S. attorney practices. However, 
the Judiciary shares congressional 
concerns regarding the growth in 
overall Defender Services spending. 
Judiciary studies undertaken to 
address these concerns reveal that, 
overall, costs are in line with the 
increase in the number of represen- 
tations, the increasing proportion of 
capital prosecutions and capital 
habeas representations, and the cost 
incurred in a handful of extraordi- 
narily expensive representations 
each year. The Defender Services 
program continues to work to 
identify "best practices" and insti- 
tute procedures designed to ensure 
that CJA representation is both high 
quality and cost-effective, including 
the following: 

d Developing a comprehensive 
performance measurement system 
to better assess the value received 
for the Defender Services program 
dollar. 



n Studying federal death penalty 
cases to identify specific steps which 
could be taken in order to ensure 
that costs remain within reasonable 
limits. The Judicial Conference Com- 
mittee on Defender Services' Sub- 
committee on Federal Death Penalty 
Cases conducted a year-long study 
of the cost, availability, and quality 
of appointed counsel in federal death 
penalty cases. The subcommittee col- 
lected qualitative and quantitative 
information from many sources, in- 
cluding the Department of Justice, 
which provided data on selected 
costs of prosecuting federal death 
penalty cases. The subcommittee, in 
its comprehensive report to the com- 
mittee, concluded that "overall, the 
average cost of representation is rea- 
sonable in relation to the obligations 
imposed on defense counsel and the 
costs of prosecuting such cases." 

□ Improving management of the 
costs of capital habeas corpus cases 
by (1) encouraging courts to require 
counsel to submit proposed litigation 
budgets for court approval before 
commencement of representation 
and employing case management 
techniques commonly used in com- 
plex civil litigation and (2) urging 
each circuit judicial council to estab- 
lish a special process for the review 
of any state death penalty habeas 
corpus cases within the circuit in 
which attorney compensation ex- 
ceeds $100,000. 

CI Implementing budgetary proce- 
dures to control federal defender or- 
ganization spending, such as (1) cre- 
ating a special Judicial Conference 
Committee on Defender Services 
Subcommittee on Budget and Grant 
Requests to allow for heightened re- 
view of federal defender organiza- 
tion funding requests; (2) holding 
federal defender organizations ac- 



countable for annual workload pro- 
jections as measured by caseload per 
attorney; and (3) requiring Adminis- 
trative Office approval before filling 
assistant federal defender positions. 

□ Conducting a pilot project to ex- 
plore the benefits of using a supervi- 
sory attorney to assist with adminis- 
tering the panel of private attorneys 
accepting court appointments and 
with reviewing payment claims sub- 
mitted by attorneys and other service 
providers. 

□ Assessing the management of fed- 
eral defender organizations to help 
the offices improve the effectiveness 
and efficiency of their operations, 
and collect and disseminate to all of- 
fices information regarding exem- 
plary procedures, "best practices," 
improved processes, and enhanced 
internal controls. 

□ Replacing the out-moded system 
for making compensation payments 
to private panel attorneys and expert 
service providers with a more effi- 
cient one that will enhance financial 
accountability and integrity. The new 
system will improve significantly the 
timeliness, type, and quality of finan- 
cial data used to manage and evalu- 
ate the Defender Services program. 

G Developing, as a part of the 
Judiciary's January 1998 report to 
Congress on the Federal Defender 
program, a list of suggested cost con- 
tainment and "best practices" recom- 
mendations that draw upon the con- 
tributions of various internal 
Judiciary groups as well as external 
criminal justice experts. The Judi- 
ciary is exploring mechanisms for 
implementation of many of these 
recommendations. In addition, AO 
staff have met with Department of 
Justice representatives regarding 
these initiatives. As a result, an 

See Defender on next page 



The Third Branch m September 1998 



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■ 



Brand Juries & Jurors: By the Numbers 



Grand juries have figured promi- 
lently in the news recently. The 
administrative Office, which collects 
lata on grand juries, reports that the 
lumber of grand jury sessions rose in 
998. From 1992 through 1997, the 
lumber of grand jury sessions 
onvened in federal courts had been 
.eclining, from a high this decade 
f 11,571 in 1992 to 9,748 in the 
2-month period ending June 1997. 
he June 1998 total of 10,148 sessions 
onvened, however, may signal a 
?versal of the downward trend. 

Grand jury activity had been 
eclining even as, in recent years, the 
umber of indictments per session 
as increased. From 1993 to 1996, the 
umber of indictments per session 
uctuated between a low of 3.72 and 
high of 4.41. By June 1997, indict- 
lents per session had risen to 4.75 
id in June 1998, indictments had 
rown to 5.23 per session. This 
icrease may be due to a comparable 
rowth in the number of criminal 



efender continued from previous page 

0/ Department of Justice Working 
roup will be established to explore 
ethods to maximize the use of tech- 
)logy in order to reduce costs. 

The Defender Services program 
is experienced substantial growth 

workload over the last several 
;ars. Between fiscal years 1993 and 
•98, the number of appointments 
ider the CJA have grown from 
:,000 to an anticipated 99,000. In 
f99, it is projected that CJA ap- 
)intments will number over 
16,900. As the workload of the 
efender Services program increases, 
e Judiciary will continue to look for 
ays to provide effective representa- 
>n as required by the Constitution 
id congressional mandates while 
ntaining costs. 



defendants in the district courts. Like 
the number of indictments per 
session, the number of defendants 
remained relatively stable from 1993 
to 1996. Since 1996, there has been an 
upward swing that reached 76,047 in 
June 1998. 

Despite the greater number of 
indictments per session, the hours a 
grand jury spends in a single session 
remain nearly constant. In 1992 it 
was 5.37 hours, and in 1998 it was 
5.33 hours. The reasons for this are 
unclear. Improvements in case 
management may have made grand 
jury sessions more efficient, or grand 
juries may be disposing of a greater 
number of less complex cases. 
Generally, the recommended stan- 
dard for a single session is approxi- 
mately six hours of scheduled 
business, and it may take more than 
one grand jury session to produce a 
vote on an indictment. 

Grand juries consist of not less 
than 16 members, the minimum 



number necessary to conduct 
business, and not more than 23 
members. Alternates also are se- 
lected in most districts. This number 
varies from court to court but may 
number between four and eight. 
Some courts select significantly more 
alternates. In the 12-month period 
ending June 1998, there were 201,770 
grand jurors in session, with nearly 
all grand jurors attending more than 
one session. This averages out to 
19.88 jurors per session. Grand jury 
and petit jury members are selected 
in the same manner, usually from 
voter registration rolls and some- 
times supplemented from motor 
vehicle registration rolls. Unlike petit 
jurors, grand jury members may ask 
questions during the session. They 
also will hear witness testimony and 
examine documents or other evi- 
dence to determine whether an 
indictment is justified. Grand jury 
members are paid an attendance fee 
of $40 per day, but after 45 days they 
may receive up to an additional $10 
per day. £l 



1999-2000 Judicial Fellows Program Invites Applications 



The Judicial Fellows Commis- 
sion invites applications for the 
1999-2000 Judicial Fellows Pro- 
gram. The program, established in 
1973 and patterned after the White 
House and Congressional Fellow- 
ships, seeks outstanding individu- 
als from a variety of disciplinary 
backgrounds who are interested in 
the administration of justice and 
who show promise of making a 
contribution to the Judiciary. 

Up to four Fellows will be 
chosen to spend a calendar year, 
beginning in late August or early 
September 1999, in Washington, 
D.C., at the Supreme Court, the 
Federal Judicial Center, the Ad- 
ministrative Office, and the U.S. 
Sentencing Commission. Candi- 



dates must be familiar with the 
federal judicial system and have at 
least one postgraduate degree and 
two or more years of successful 
professional experience. Fellow- 
ship stipends are based on salaries 
for comparable government work 
and on individual salary histories, 
but will not exceed the GS 15, step 
3 level, presently $80,789. 

Information about the Judicial 
Fellows Program and application 
procedure is available upon request 
from Vanessa M. Yarnall, Admin- 
istrative Director, Judicial Fellows 
Program, Supreme Court of the 
United States, Room 5, Washing- 
ton, D.C. 20543, or by calling 202/ 
479-3415. The application deadline 
is November 6, 1998. £L 



The Third Branch m September 1998 



JUDICIAL MILESTONES 



Appointed: Robert D. Sack, as U.S. 
Court of Appeals Judge, U.S. Court 
of Appeals for the Second Circuit, 
August 6. 

Appointed: Raner Collins, as U.S. 
District Judge, U.S. District Court 
for the District of Arizona, August 
19. 

Appointed: Susan Oki Mollway, 

as U.S. District Judge, U.S. District 
Court for the District of Hawaii, 
August 4. 

Appointed: Dan A. Polster, as U.S. 
District Judge, U.S. District Court 
for the Northern District of Ohio, 
August 10. 

Appointed: Richard W. Roberts, as 

U.S. District Judge, U.S. District 
Court for the District of Columbia, 
July 31. 

Appointed: Victoria A. Roberts, as 

U.S. District Judge, U.S. Court for 
the Eastern District of Michigan, 
August 11. 

Appointed: Ralph E. Tyson, as 

U.S. District Judge, U.S. District 
Court for the Middle District of 
Louisiana, August 10. 

Appointed: Terry Myers, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Idaho, 
August 1. 

Appointed: James S. Starzynski, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the District of 
New Mexico, August 14. 

Appointed: Joe B. Brown, as U.S. 

Magistrate Judge, U.S. District 
Court for the Middle District of 
Tennessee, August 3. 



Appointed: Lisa Cataldo, as U.S. 
Magistrate Judge, U.S. District 
Court for the District of Hawaii, 
August 11. 

Elevated: Judge Neal Biggers, to 

Chief Judge, U.S. District Court 
for the Northern District of 
Mississippi, succeeding Judge L. 
T. Senter, Jr., July 31. 

Elevated: Judge Robert L. Echols, 

to Chief Judge, U.S. District Court 
for the Middle District of Tennes- 
see, succeeding Judge John T. 
Nixon, August 1. 

Senior Status: Judge David S. 
Doty, U.S. District Court for the 
District of Minnesota, June 30. 

Senior Status: Judge John T. 
Nixon, U.S. District Court for the 
Middle District of Tennessee, 
August 15. 

Retired: Senior Court of Appeals 
Judge James K. Logan, U.S. Court 
of Appeals for the Tenth Circuit, 
July 15. 

Retired: Bankruptcy Judge 
Alfred C. Hagan, U.S. Bankruptcy 
Court for the District of Idaho, 
July 31. 

Deceased: Senior Court of 
Appeals Judge Frank X. Altimari, 

U.S. Court of Appeals for the 
Second Circuit, July 19. 

Deceased: Senior Judge Richard 
M. Bilby, U.S. District Court for 
the District of Arizona, August 11. 

Deceased: Senior Judge Robert 
W. Warren, U.S. District Court for 
the Eastern District of Wisconsin, 
August 20. 






THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, DC. 20544 

(202) 273-0107 
Our homepage address is 
http: / / www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Contributing to this issue: 
Richard Fennel! AO 
Elizabeth Brown, AO 

Photos on cover and page 3 
courtesy of the Supreme Court 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond(&ao. uscourts.gov. 



JUDICIAL BOXSCORE 

As of September 1, 1998 



Courts of Appeals 




Vacancies 


17 


Nominees 


12 


District Courts 




Vacancies 


55 


Nominees 


29 



Court of International Trade 
Vacancies 1 

Nominees 1 



Courts with 

"Judicial Emergencies" 



31 



For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Branch u September 1998 





ige Carol Bagley Anion, 
des of Conduct 



Judge Robin J. Cauthron, 
Defender Services 



ommittee Chairs Change 

Six new committee chairs will head Judicial 
inference committees beginning October 1, 1998, 
ith the term of one committee chair extended for 
[Other year. Chief Justice William Rehnquist made 
e following appointments: 
Judge Carol Bagley Amon (E. D. NY) succeeds 
dge A. Raymond Randolph (D. C. Cir.) as chair of 
e Committee on Codes of Conduct. Judge Robin J. 
luthron (W.D. Okla.) succeeds Judge Emmett 
pley Cox (11 th Cir.) as chair of the Committee on 
lender Services. Judge Walter K. Stapleton (3 rd 
r.) will succeed Judge Stephen Anderson (10 th Cir.) 
chair of the Committee on Federal-State Jurisdic- 
n. Judge William J. Zloch (S.D. Fla.) succeeds 
dge Frank J. Magill (8 th Cir.) as chair of the Com 
tree on Financial Disclosure. Judge Harvey E. 
hlesinger (M.D. Fla.) succeeds Judge Phillip Pro (D. 
;v.) as chair of the Committee on the Administra 
n of the Magistrate Judges System. Judge Anthony 
icirica (3 rd Cir.) succeeds Judge Alicemarie H. 
)tler (CD. Calif.) as chair of the Committee on 
les of Practice and Procedure. 
Chief Judge Julia Smith Gibbons (W. D. Tenn.) will 
nain as chair of the Committee on Judicial Re- 
cces for another year. 

The Chief Justice makes all appointments to the 
licial Conference committees and determines 
lure. Generally, committee chairs — with the 
:eption of the chairs of the Executive, Judicial 
inch, and Budget Committees — serve for a term of 
ee years, with one reappointment possible. Five to 
years of cumulative committee service, including 
>t committee assignments, is considered the 
iximum a member may serve. 

Every two years, the Judicial Conference Executive 
rretariat surveys all judges to identify individuals 
10 wish to serve as members of Conference com- 
rtees and their preferences. Membership on a 
nmittee is in addition to the responsibilities a 
[ge carries as a member of his or her court. &^ 




Judge Walter K. Stapleton, 
Federal-State Jurisdiction 




Judge William J. Zloch, 
Financial Disclosure 




Judge Harvey E. Schlesinger, 
Administration of the 
Magistrate Judges System 




Judge Anthony J. Scirica, 
Rules of Practice and 
Procedure 



INTERVIEW 



An Interview with 
William S. Sessions 

William S. Sessions is a partner at 
Sessions & Sessions law firm in Texas. 
He was appointed a district court judge 
to the Western District of Texas in 1974, 
serving on the federal bench until 1987, 
when he was named Director of the 
Federal Bureau of Investigation. In 
addition to many other positions, he has 
served as the chairman of the Federal Bar 
Association's Ethics Committee, as a 
member of the American Judicature 
Society, and most recently as the chair of 
the American Bar Association's Special 
Committee on Judicial Independence. 

Q # As a federal judge and the 
• former director of the FBI, 
you've worked in two of the three 
branches of government and you've 
seen the federal Judiciary from both 
inside and outside. What is the 
public perception of the Judiciary? 
Has it changed during your career? 

A # The favorable public percep- 
• tion of the federal Judiciary 
remains at an amazingly high level 
in spite of the battering it has taken 
in the last 35 years. Although the 
mystical aspects of courts and 
judges have gradually dissolved in 
the glaring light of intense public 
interest, court television, and 
entertainment shows about lawyers 
and the Judiciary, the respect for 
federal judges and federal courts 
seems virtually undiminished. 
Americans seem to understand that 
our Constitution-based system is 
their best assurance for a consistent 
Rule of Law approach to dispute 
resolution — a system that has earned 
international respect. I believe that 
people want the courts to react to 
change more quickly but accept the 
fact that major changes are viewed in 

See Interview on page 10 






The Third Branch ■ September 1998 



a variety of ways that must be 
considered, often in litigation, before 
a stable solution is found — and 
followed. 



Q 



. Last year federal judges 
• received their first cost-of- 



living increase since 1993, but it does 
not appear that Congress will pass 
the necessary legislation this year to 
give judges a called-for increase in 
1999. What do you feel is behind the 
difficulty in increasing judges' pay? 
Should federal judges' pay be linked 
to those of members of Congress and 
the Executive Schedule? 

A. I believe that there is a genu- 
• ine difference of opinion 
about the need for a stable and fair 
plan for systematic pay increases for 
the federal Judiciary. The Congress 
in 1989, even though the linkage 
between congressional pay and 
judicial pay was continued, handled 
that need in a very reasonable 
way — by providing for a substantial 
"catch-up" raise and for an annual 
COLA. The failure of Congress to 
give that COLA in many of the 
years that followed has caused what 
I believe to be an unwise imbalance 
to accrue. Had the COLAs been 
given annually thereafter, that 
imbalance between judicial salaries 
and the substantial salaries that 
eminent lawyers can command 
would not have been so severe. It 
seems logical for Congress to 
recognize that the imbalance is a 
detrimental factor in recruiting 
and retaining the best of legal talent 
for the bench. If Congress chooses 
to deny itself the raise in pay, it 
should consider carefully the exacer- 
bation of the imbalance and the 
resultant detriment to the mainte- 
nance of a strong and able federal 
Judiciary and grant the COLA to the 
Judiciary. 



William S. Sessions 



Q. You were the 
• first chair of 
the recently formed ABA 
Special Committee on 
Judicial Independence. 
Why was that committee 
formed, and what does it 
hope to accomplish? 

A # The special 
• committee was 
authorized by the ABA 
Board of Governors in 
July of 1997 and ap- 
pointed by ABA Presi- 
dent Jerome Shestack in 
San Francisco at the 
annual ABA meeting on 
August 1, 1997. In 
abbreviated form, its 
mandate was to "assist 
courts ... in considering 
and effectuating re- 
sponses to infringement 
of judicial independence," to "en- 
courage public awareness and 
appreciation of the importance of 
judicial independence and merit 
selection to the American judicial 
system and the rule of law;" to 
"make recommendations on ways to 
improve and enhance the institu- 
tional independence and efficiency of 
. . . judiciaries and encourage appro- 
priate accountability to enhance 
judicial independence and the 
efficient administration of justice" 
and, finally, to "act as a clearing- 
house for ABA activities dealing with 
the independence of state, local and 
administrative judiciaries." 

The committee, since August of 
1997, has laid a substantial founda- 
tion for carrying out the mandate 
given it. It has joined with the 
Lawyers Conference of the Judicial 
Division of the ABA to ensure the 
nationwide implementation of the 
Model Plan for Response to Criticism 
of Judges. It has received substantial 
encouragement and financial support 




of other institutions to develop 
model programs for effectively 
dealing with unfair, harsh, and 
untrue criticism of judges and courts. 
It has spoken out in the media in 
response to unfair, harsh, untrue 
criticism or disciplining of judges 
and has supported public discussion 
encouraging appropriate account- 
ability and efficiency of courts and 
judges. Additionally, it has begun 
the initial work to create an educa- 
tional video on judicial indepen- 
dence as a critical element underpin- 
ning the Rule of Law in America. 



Q # Judges are vulnerable to 
• political attacks from critics 
inside the government and outside. 
You've written that the founding 
fathers were confident that the 
judicial system could survive and 
flourish despite the attacks. How 
does the Judiciary do that? And 
should federal judges respond to 
public criticism of their judicial 1 



10 



The Third Branch u September 1998 



ecisions and to calls for impeach- 
ment based on disagreement with 
ecisions? 

A # Since early in 1996, the high- 
r\ • level attacks from within the 
<ecutive and legislative branches of 
le government are difficult to deal 
ith because basic political philoso- 
hy is often involved and thus the 
backers apparently feel the attack is 
stified because of the importance 
ley attach to the particular issue 
ivolved — crime — abortion — guns, 
f course each issue has intense and 
mstant public interest. Because 
dges have traditionally felt bound 
f their ethical duty to stand and 
ke it, the war of words rages about 
em with virtually no defense being 
ised and articulated in their 
?fense. The problem is not solely a 
mcern for the federal Judiciary. 
ate judiciaries are at least as 
llnerable, principally because of 
e processes by which those judges 
e chosen and retained. 
Arthur T. Vanderbilt, former 
lief Justice of the New Jersey 
ipreme Court, in his great speech 
the law students at an ABA 
inual meeting took the position 
at "a great lawyer does his part 
dividually and as a member of the 
ganized bar to improve his profes- 
)n, the courts and the law," and 
ias the responsibility of acting as 
i intelligent, unselfish leader of 
iblic opinion within his (her) own 
irticular sphere of influence." The 
3A Suggested Program Outline for 
t Appropriate Response to Criticism of 
iges and Courts has great promise 
r nationwide response, in the 
2dia, in schools, in civic gatherings 
d clubs, and in the Congress, to 
rsh, unfair or untrue criticism. Bar 
sociations and lawyers, nation- 
de, will not only respond to 
acks on the Judiciary but, as 
iportant, will develop educational 
ograms that will bring about a 
eper public understanding of the 
tical importance of an indepen- 



dent Judiciary to the Rule of Law, 
which underpins our free enterprise 
system and our democracy. 



Q. With attacks on judges and 
• stagnating pay, what effect 
do you feel this may have on the 
quality of people attracted to serve 
on the federal bench? 

A. This is a very tough but 
• delicate problem. Unques- 
tionably, the federal standards in 
many areas, including the courts and 
the Judiciary, set the standard for the 
states and the cities of America. The 
character, intelligence and compe- 
tence of men and women who are 
selected and who choose to serve as 
federal judges will continue to be the 
best available, but we cannot allow 
the system to fall into disrepair, 
either in the housing for the courts or 
the support we afford them, in pay 
and security. Each of these facets of 
support will ultimately be reflected 
in the state and local systems and 
will encourage lawyers to serve, 
relying upon the strength and 
attractiveness of the court system. 
The cream will rise to the top! We 
must support the courts with all the 
strength and determination we can 
muster! 



Q # Your areas of legal practice 
• now include mediation and 
arbitration-areas into which the 
federal courts also are expanding. 
What are your thoughts on alterna- 
tive dispute resolution in the federal 
courts? 

A # My thoughts went immedi- 
• ately to the crisis that 
exploded upon the Western District 
of Texas when Judge John H. Wood, 
Jr. was assassinated May 29, 1979. 
Recognizing that the civil docket in 
San Antonio would be completely 
drowned by the huge criminal 
docket with the additional burden of 



the Speedy Trial Act of 1974, 1 asked 
the San Antonio Bar Association to 
devise a court-annexed ADR proce- 
dure that would meet the needs of 
the bar and the court. The bar 
proposed a court-annexed arbitra- 
tion plan which was adopted by the 
court, enthusiastically supported by 
the lawyers and continues to this 
day. It is joined now by the Alterna- 
tive Dispute Resolution Rule, both of 
which operate splendidly under the 
local rules. My view is that it is most 
important that the courts facilitate 
disposition of litigation in an effi- 
cient manner and that the public be 
aware that the court is overseeing the 
processes of the litigation and thus 
the public can have confidence that 
the judicial system is working 
efficiently and properly. Court- 
annexed ADR programs have the 
potential to splendidly fill these 
needs and allow the courts to meet 
the burgeoning workload. 



Q # As the judicial branch nears 
• the millennium mark, what, 
if anything, would you change in the 
federal Judiciary? 

A. The federal Judiciary is 
• probably the most respected 
judiciary in the world. The support 
mechanisms for the work of the 
federal Judiciary are extraordinarily 
able and diligent. Alvin & Heidi 
Tofflers' Future Shock and The Third 
Wave enabled us to understand that 
the future can be predicted with 
amazing clarity if you are able to 
read the signs along the trail and 
interpret them. The ability to meet 
change head on and meet the chal- 
lenge of that change will determine 
the future of the Judiciary. It must 
meet the expanding needs of the 
international business community, 
the international telecommunications 
industry, the international intellec- 
tual property demands, the interna- 
tional criminal problems. To do this, 
See Interview on page 12 



w 



11 



The Third Branch m August 1998 



Interview continued from page 11 

the federal Judiciary needs to direct 
its attention to creating streamlined 
and efficient ways to meet these 
needs. The alternative is to be "too 
late with too little" and to thus be by- 
passed as incapable of meeting the 
demands made on it. This is all very 
easy to say but very hard to do. We 
might begin with renewal of eclectic 
conferences on the model of those 
sponsored by The Brookings Institute 
in the 1970s where each of the 
branches of the federal government 
could learn from and be challenged 
by others. Futurists, such as the 
Tofflers and Nesbitt, might lay the 
groundwork for these discussions 
and exchanges. 

Additionally, the Judiciary must 
lead in finding and proposing new 



models and methods for assuring 
that the judicial needs of all areas of 
the country are met in a more timely 
fashion. It is possible that Congress 
might be persuaded to meet the 
needs of a fast-growing area by 
adding a "next vacancy" type of 
appointment that would be taken 
from an area needing less judicial 
resources. The new number of judges 
would, in that circumstance, not be 
permanently increased, and the 
needs of each area would be met. 
Consideration might be given to 
creating an emergency pool of 
judgeships that could be assigned by 
the Chief Justice or the Judicial 
Conference in the interim between 
the usual omnibus judgeship legisla- 
tion. Had such a capability been in 
place when the drug problem 



exploded on Miami, Florida, the 
long delay that resulted in a massive 
backlog might have been avoided. 
Finally, I would make a strong 
and sustained effort to persuade 
Congress of the wisdom of finding a 
way to assure that the pay of the 
Judiciary does not lag dangerously 
behind that of the legal community. 
That lag not only causes a nagging 
preoccupation caused by the prob- 
lem but almost certainly inhibits the 
ability of the President to find and 
keep nominees of the high quality 
demanded by the difficult nature of 
judges' work. It may be that the Con- 
gress will decide that the time has 
finally come for dealing with the 
judicial pay issue by focusing inten- 
sely on the needs of the Judiciary, 
without other distractions. 



THE THIRD BRANCH 

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LAW LIB 



NOV 05 

INDERAL DEPOSE 



"BRANCH 



Judicial Conference Convenes Fail Meeting 



At its biannual meeting last month 
\ Washington, the Conference voted 
) ask its Committees on Codes of 
bnduct and Financial Disclosure to 
insider if the Conference should 
ncourage all courts to maintain, in 
\e clerk's office, a list for each judge 
f the companies in which the judge, 
r the judge's spouse, or minor child 
siding in the household, has a 
rtancial interest requiring recusal, 
he information would be made 
/ailable to litigants upon written 
•quest. 

In addition, the Judicial Conference 
nancial Disclosure Committee 
irected that the form, which is used 



to request a copy of a disclosure 
report, be available on the Judiciary's 
Internet site (wzvw.uscourts.gov); 
deleted the requirement that any 
requests for reports be notarized; and 
reduced the cost for copying reports 
from 50 cents a page to 20 cents. 

The Financial Disclosure Commit- 
tee found "these changes to be 
positive steps in improving public 
access to financial disclosure reports 
without compromising the security of 
judges." 

In additional action, the Judicial 
Conference voted to seek indepen- 
dent funding for courthouse construc- 
tion, including funding for planning 



Judiciary 

Opens 

Electronic 

Highway 



see 

DCN 

page 5 




Structural Alternatives Commission Releases Draft pg. 4 

Continuing Resolution Funds Judiciary pg. 6 

Congress Authorizes Courthouse Funds in FY99 pg. 7 



Newsletter 
of the 

Federal 
Courts 



Vol. 30 
Number 10 
October 1998 




new projects, in the Judiciary's 
budget request beginning in fiscal 
year 2000. However, in light of 
negative congressional reaction, 
the chairmen of the Security and 
Facilities and Budget Committees, 
and Administrative Office Director 
Leonidas Ralph Mecham decided 
not to pursue direct funding in FY 
2000. Instead, they will urge OMB, 
General Services Administration 
(GSA), and Congress to provide 
the necessary funds. 

The Conference decision to seek 
direct funding for courthouse con- 
struction projects follows two con- 
secutive years in which the Office 
of Management and Budget (OMB) 
failed to seek any money for this 
purpose. Each time the Judiciary 
was forced to redouble its efforts 
with Congress in an effort to have 
the funds restored. All indications 
are that OMB will not request any 
courthouse funds for FY 2000. 

In other action, the Conference 

■ Agreed to urge the President, 
with the advice and consent of the 
Senate, to continue the long- 
standing tradition of appointing a 
federal judge to chair the U.S. 
Sentencing Commission. If Con- 
gress adjourns in October without 
acting on any of the Commission's 
six pending vacancies, Judge 
Richard P. Conaboy — Commission 
chairman — will be the only remain- 
ing commissioner. He has an- 
nounced his resignation effective 
October 31. In the Commission's 

See Conference on page 2 



•i | 



K 



SI. 

mm 

•-.•tfr''/ 1 



■T 






Conference continued from page 1 

14-year history, its chairman has 
always been a federal judge. 

■ Approved the document called 
The Judicial Conference of the United 
States and its Committees, which is a 
compilation of established Confer- 
ence policies and committee prac- 
tices. The document also includes in- 
formation on the organization and 
operating procedures of Conference 
committees, the role of committee 
chairs, the formation of subcommit- 
tees, the preparation of agendas and 
submission of committee reports, ac- 
cess to committee reports, committee 
appointments, and more. 

■ Agreed to establish an Internet fee 
of 7 cents a page for public users of 
the Judiciary's Public Access to 
Court Electronic Records system 
(PACER). The Judiciary is in its ninth 
year of offering various electronic 
access services. Registering more 
than 30,000 users a year, PACER 
provides legal, business, community 
and other interested parties direct, 
rapid, and easy access to appellate 
slip opinions, argument calendars, 
case dockets, and other useful 
courthouse information. The current 
fee for the dial-in use of PACER is 60 
cents a minute. The application of 
Internet technologies to this program 
may lower the operating costs of the 
PACER system, make court and case 
information more widely available, 
and offer the opportunity to add 
information and services to the 
public at a modest cost. 

Since 1991, Congress has required 
the Judiciary to charge users a reason- 
able fee to reimburse the Judiciary for 
expenses incurred in providing these 
services. The revenue generated from 
the fees is used to fund the Judiciary's 
full range of electronic public access 
services. The funds also provide each 
court with hardware and software to 
support public access services. 

Courts may provide at no cost a 
variety of local court information, 
including local rules, court forms, 



Following the September meeting 

of the judicial Confereru e, 

members gathered far u ret eption 

in the West Conference Room oj 

///c Supreme Court. 

Right: (from left) judge William 

Zloch (S.D. Fla.) and AO Director 

Leonidas Ralph Mecham. 

Below: (from left) fudge Wm. 

Terrell Hodges (M.D. Fla.), 

Minnesota State Judge Marilyn 

Rosenbaum and Judge James M. 

Rosenbaum (D. Minn.). 



news items, court calendars, 
opinions designated by the 
court for publication, and 
other information — such as 
court hours, court location, 
and telephone 
listings. 

■ Received and 
adopted the 
recommenda- 
tions contained 
in the report 
entitled Federal 
Death Penalty 
Cases: Recommen- 
dations Concern- 
ing the Cost and 
Quality of Defense 
Representation. 
The number of 

defendants charged with offenses 
punishable by death has gone from 12 
in 1991 to 153 in 1997. 

The report addresses the cost, 
availability, and quality of defense 
representation in federal death pen- 
alty cases and recommends steps 
that should be taken in order to keep 
expenditures in these cases within 
reasonable limits. It was prepared by 
the Subcommittee on Federal Death 
Penalty Cases of the Judicial Confer- 
ence Committee on Defender Services. 

In general, the report concluded 
that the judges assigned to federal 
death penalty cases have been 
appropriately conscious of the need 
to monitor and control defense costs. 
Nevertheless, recognizing that the 
cost of defending death penalty cases 





is almost always greater than the cos 
of defending non-death penalty 
cases, the report recommends the 
implementation of additional cost- 
containment measures. 

Among the recommendations 
contained in the 107-page report are 

O Courts should assure the appoint- 
ment of highly qualified counsel 
whenever the defendant is 
charged with an offense punish- 
able by death. The hourly rate au- 
thorized for compensation of 
counsel should remain high 
enough to attract a sufficient 
number of qualified attorneys. 

O Courts should require lawyers to 
develop case budgets to ensure 
the most effective and economical 






r 1998 



use of resources. The Judicial Con- 
ference should develop guidelines 
tor case budgeting, and judges 
and lawyers should be trained in 
the budgeting process. 

A copy of the report is available 
on the Judiciary's website at 
usconrts.gov. 

■ Acted on numerous recommenda- 
tions from the National Bankruptcy 
Review Commission (NBRC). The 
nine-member independent commis- 
sion studied issues and problems 
relating to the bankruptcy code and 
in October 1997 submitted a report 
containing more than 170 recom- 
mendations to Congress, the Presi- 
dent, and the Chief Justice. Because 
some of the recommendations have 
a potential impact on the workload 
and administration of the courts, 
they have been studied by relevant 
Conference committees. Among 
other actions, the Conference voted 
to 

O Support establishment of a na- 
tional filing system that would 
identify each bankruptcy case with 
a unique identifier, to the extent 
this can be done with proper re- 




gard for safeguarding the privacy 
of sensitive personal information. 

O Oppose the creation of bankruptcy 
courts under Article III of the 
Constitution and the recommen- 
dation that at the completion of 
their 14-year terms, bankruptcy 
judges should be appointed to fill 
existing vacancies by the Presi- 
dent with the advice and consent 
of the Senate. 

O Support amendments to the Fair 
Credit Reporting Act that would 
require credit reporting agencies 
to report Chapter 13 filings (where 
the debtor attempts to repay all or 



(From left) Judge 
John G. Heyburn 
U (W. D. Ky.), 
judge Peter C. 
Dorsey (D.Conn.) 
and judge 
Joseph DiClerico 
(D. N.H.). 



a percentage of his or her debts 
pursuant to a plan of reorganiza- 
tion) differently from Chapter 7 
(liquidation or "straight bank- 
ruptcy") filings. 

■ Rescinded its September 1993 
policy recommending to all judicial 
officers that March 1 of the year be- 
fore a clerkship begins be the bench- 
mark starting date for law clerk inter- 
views. This action was taken because 
it has become apparent that the Con- 
ference policy has not been univer- 
sally followed and is not an accurate 
reflection of the practice in many 
courts, ^w 




(From left) AO Director 
Leonidas Ralph Mecham, 
ex-officio member of the 
Executive Committee, 
with fellow members of 
the Executive Committee 
judge Ralph G. 
Thompson (W.D. Okla.), 
Chief Judge Boyce Martin 
(6 th dr.), Chief judge 
Henry A. Politz (5 ,h dr.), 
Committee Chair Judge 
Wm. Terrell Hodges 
(M.D.Fla.), Chief Judge 
Lloyd D. George (D. 
Nev.) and Chief Judge 
Juan R. Torruella (I s ' 
dr.). Executive 
Committee member Chief 
Judge Ralph K. Winter 
(2" d Cir.) is not pictured. 



C ! 



I 



The Thud Branch m October 1998 



Structural Alternatives Commission Releases Draft Report 



The Commission on Structural 
Alternatives for the Federal Courts 
of Appeals has released a draft 
report of its preliminary recommen- 
dations on the court of appeals 
system. The report is available at 
http://app.comm.uscourts.gov. 

Congress established the Commis- 
sion last fall to "study the present 
division of the United States into the 
several judicial circuits; study the 
structure and alignment of the 
Federal Court of Appeals system, 
with particular reference to the 
Ninth Circuit; and report to the 
President and the Congress its 
recommendations for such changes 
in circuit boundaries or structure as 
may be appropriate for the expedi- 
tious and effective disposition of the 
caseload of the Federal Courts of 
Appeals, consistent with fundamen- 
tal concepts of fairness and due 
process." Public comment on the 
draft report, which must be made 
by November 6, 1998, will be consid- 
ered by the Commission before 
issuing a final report, due to be 
delivered to Congress in December. 

In addition to its own research into 




the workings of the courts of appeals, 
beginning last March the Commis- 
sion conducted a series of public 
hearings in Atlanta, Dallas, Chicago, 
New York, Seattle, and San Francisco 
to allow the public to comment on 
the present system. Over 90 witness- 
es testified at these hearings from the 
academic, legal, and judicial commu- 
nities. Statements and comments 
were submitted by many more and 
are available on the website. 

Retired Supreme Court Justice 
Byron White chairs the Commission, 



Commission members and support staff met 
in Washington last month to draft the 
preliminary recommendations that are now 
available for public comment. 



whose members are Judge Gilbert S. 
Merritt (6 th Or.), Judge Pamela Ann 
Rymer (9 th Cir.), Judge William D. 
Browning (D. Ariz.), and N. Lee 
Cooper of Birmingham, Alabama. 
Daniel J. Meador, the James Monroe 
Professor of Law Emeritus at the 
University of Virginia, serves as 
executive director. &. 



The report's tentative recom- 
mendations include the following 

D That Congress enact a statute or- 
ganizing the Ninth Circuit Court of 
Appeals into three regionally based 
adjudicative divisions, each divi- 
sion with a majority of its judges 
resident in its region, and each hav- 
ing exclusive jurisdiction over ap- 
peals from judicial districts within 
its region. Each division would 
function as a semi-autonomous 
decisional unit. A circuit division 
would resolve conflicts of law be- 
tween regional divisions, replacing 
the current limited en banc system. 
The administrative responsibilities 
of the Ninth Circuit itself would 
continue to be carried out within 



Recommendations in Briel 

current circuit boundaries. 

O That Congress enact a statute au- 
thorizing any court of appeals with 
more than 13 judgeships to organize 
itself into adjudicative divisions. 
The court would have an option in 
this regard until its membership ex- 
ceeds 17 judgeships, at which time it 
would be required to adopt a divi- 
sional plan. 

□ That Congress enact a statute au- 
thorizing each court of appeals to 
decide some types of selected cases 
using panels of two rather than 
three judges. 

□ That Congress enact a statute au- 
thorizing circuit judicial councils to 



establish district court appellate 
panels to provide appellate review 
in designated categories of cases 
with panels of two district judges 
and one circuit judge, with discre- 
tionary review available thereafter 
in the court of appeals. 

□ That Congress not authorize di- 
rect review in the courts of appeals 
of bankruptcy court decisions, but 
rather consider several specific alter- 
natives. 

Two members of the Commission 
wrote separately to present a pro- 
posal to reduce diversity jurisdiction 
in the federal courts. 

Comments can be sent to the 
Commission by November 6, 1998 
See Report on next page 



The Third Branch 



October 1998 



Last Links in Judiciary's Data Communications Network Complete 



With the addition of the final 
court sites this month, the federal Ju- 
diciary has completed a nationwide 
internal data communications net- 
work (DCN) for all Judiciary employ- 
ees. The DCN was seven years in the 
making — and was finished one year 
ahead of the projected completion 
date. It connects 700 federal court 
sites across the country and more 
than 28,000 Judiciary employees, 
who now may send electronic 
messages, files, and information to a 
single person or an entire group of 
people over a private network, in the 
same building, or across the country. 

"I've watched the DCN grow over 
the years with the expectation that its 
full implementation would benefit 
the Judiciary in many ways, and we 
are discovering more benefits than 
we even anticipated," said Adminis- 
trative Office Director Leonidas 
Ralph Mecham. "The DCN gives the 
federal courts the electronic highway 
it needs to support its responsibilities 
in the administration of justice." 

The DCN has grown steadily 
since January 1994 when just 17 
percent of the court locations were 
connected to the network. As the 
DCN proved its usefulness, and at 
the recommendation of the Judicial 



Conference Committee on Automa- 
tion and Technology, the Judicial 
Conference Executive Committee 
approved funds to accelerate imple- 
mentation of the ^^^^^^^^^^^ 
DCN. All major ™^^^^^^™ 
court and 
divisional lo- 
cations now are 
linked by the 
data communi- 
cations net- 
work. 

The courts 
and the Admin- 
istrative Office 
use the DCN to 
draft and 
produce final 
documents for 
everything from 
court opinions 
to policy 
recommenda- 
tions by Judicial 
Conference 
committee 
members. The 

DCN also provides an infrastructure 
for the J-Net, the Judiciary's intranet 
website. The site is visited over 2,000 
times daily by Judiciary employees 
looking for reports, statistics, news- 




The internal network not only 
serves as an information source, it 
is also a cost-saving venture. 
Using the DCN's e-mail feature 
alone should save $30,000 with 
every 10,000 messages sent in lieu 
of mailed letters. 



Report continued from previous page 


Judiciary Building, Washington, DC 




20544. 


using one of the following alterna- 


4. By fax: 202-208-5102. 


tives: 


For those using mail or fax, the 


1 . By electronic mail through the 


Commission asks that a copy of the 


Internet to the following address 


comments also be submitted on a 


AppdkteSonmTisskmS0mtwnts%QX^^ 


computer diskette in a format 


2. By electronic mail to the 


readable by a standard word pro- 


following address for those within 


cessing program. Further instruc- 


the judicial branch only using 


tions about sending submissions by 


cc:Mail — Appellate Commission 


electronic mail are available on the 


Comments. 


Commission's website at http:// 


3. By mail to the Commission 


app.comm.uscourtsgov. 


on Structural Alternatives for 


All comments received will be 


the Federal Courts of Appeals, 


placed on the Commission's web- 


Thurgood Marshall Federal 


site. £«^ 



letters, directories, manuals, and 
other information. 

The Judiciary capitalizes on the 
DCN's nationwide reach to conduct 
^^^^^^^^^^ surveys, collect 
data, conduct 
group discussion 
forums, and offer 
long distance in- 
struction. The 
DCN also sup- 
ports current and 
soon-to-be imple- 
mented national 
systems for 
budgeting, 
accounting, 
human resources, 
jury management, 
and lawbook 
acquisition. 

The DCN also 
lets the Judiciary 
consolidate 
software. Commu- 
nications devices, 

such as modems, 

may be shared as 
well as network versions of software, 
eliminating the purchase of indi- 
vidual software licenses for every 
employee. Using the DCN's elec- 
tronic mail feature alone should save 
$30,000 with every 10,000 messages 
sent in lieu of mailed letters. 

"The DCN has for years been 
viewed by the committee as the back- 
bone which, when developed, would 
support many other automated sys- 
tems and make massive amounts of 
information available electronically," 
said Judge Edward W. Nottingham 
(D. Colo.), Chair of the Judicial 
Conference Committee on Automa- 
tion and Technology. "Now that it 
has been completed — ahead of sched- 
ule and under budget — we can focus 
attention on these other parts of the 
Long Range Plan for Information 
Technology, while maintaining this 
essential communications tool.' 



it 

i! 

if 



The Third Branch 



October 1998 



Continuing Resolutions Pass as Omnibus Bill Awaits Vote 



With other matters on its mind, 
the 105th Congress was late in 
addressing many of the fiscal year 
1999 funding measures, including 
the Commerce, Justice, State, and 
Judiciary bill. As of October 20, 
the government continued to 
operate on a series of short-term 
continuing resolutions. While the 
level of funding for the Judicial 
Branch is not particularly contro- 
versial, political issues such as 
sampling for the year 2000 census, 
which are highly contentious, are 
delaying final action on the Com- 
merce, Justice, State, and Judiciary 
bill. 

The November issue of The Third 
Branch will provide detailed infor- 
mation on the Judiciary's funding 
for FY99. 



The Senate has approved an ap- 
propriations bill that would give the 
Judiciary $4.01 billion in total obli- 
gations, and the House's appropria- 
tions bill gives the Judiciary $4.08. 
The Judiciary had requested $4.15 
billion in fiscal year 1999 and has ap- 
pealed the FY99 funding levels in let- 
ters to members of Congress as insuf- 
ficient to sustain current services. 
Under the continuing resolutions, the 
courts' funding allotments for the 
interim are set at FY98 levels. 

As The Third Branch went to press, 
the Judiciary's FY99 appropriation is 
to be incorporated into an omnibus 
bill with the remaining appropria- 
tions bills, presenting the entire 
package to Congress for an up or 
down vote. Press reports indicated 
that both the House and Senate 



would pass, and the President would 
sign, the omnibus bill. Failing 
passage, the Judiciary and other 
agencies would survive on a succes- 
sion of continuing resolutions until 
legislation finally is agreed upon. 
In December 1995, the govern- 
ment shut down for four days when 
Congress failed to pass appropria- 
tions bills and all the continuing 
resolutions expired. At that point, 
Chief Justice William H. Rehnquist 
wrote to Vice President Gore, 
President of the Senate, and Repre- 
sentative Newt Gingrich, Speaker of 
the House, asking that Congress take 
action to pass a free-standing FY 
1996 funding bill for the Judiciary. 
The Judiciary finally received 
funding for 1996 nearly four months 
after the start of the fiscal year. £^ 




Considers 

Mass Torts 

Problems 




A conference of state and federal 
judges, lawyers, and academics 
was convened last month at the 
Administrative Office to assist 
representatives of several Judicial 
Conference committees in their 
study of the problems of mass 
torts. Such problems include forum 
shopping by defendants and 



plaintiffs; high attorney fees; 
inefficient use of judicial officer 
resources; inadequate coordination 
between state and federal courts; 
allocation of awards to undeserving 
claimants; unfair pressure on 
companies to settle marginal claims 
or risk the loss of their entire 
company; and scientific evidence 



that is often decisive, yet unsettled, 
in the resolution of a case. 

Various proposals on handling 
mass torts were discussed, and the 
mass torts group will consider the 
suggestions presented. A report will 
be made to the Chief Justice early 
next year that will identify possible 
approaches to the problems. 



ranch m October 1998 



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longress Authorizes Courthouse Projects for 1999 



The Senate Committee on Envi- 
jnment and Public Works has 
uthorized 14 fiscal year 1999 
jurthouse projects at full funding 
■vels. Earlier, the House Committee 
n Transportation and Infrastructure 
jthorized nine courthouse projects, 
Lit decided to defer the project 
ated for Savannah, Georgia. The 
louse Committee authorized four 
■maining projects during the last 
eek of October. As a result, the 
mferenced House-Senate FY99 
reasury and General Government 




idge Norman H. Stahl (V dr.), chair of 
? Conference Committee on Security and 
cilities, asks the Senate Committee on 
wironment and Public Works to authorize 
courthouse projects. 



ppropriations Act contained funds 
r 13 courthouse projects in FY99. 
ingress, however, has been unable 
agree on several non-courthouse 
lated provisions in the appropria- 
ms bill, so the bill is stalled for 

)W. 

In Senate hearings last month, 
dge Norman H. Stahl (1 st Cir.), 
lair of the Conference Committee 
t Security and Facilities, asked the 
nate Committee on Environment 



and Public Works to authorize the 14 
courthouse projects whose funding 
had been withdrawn by the Office of 
Management and Budget before the 
1999 budget was transmitted to 
Congress. Stahl testified on behalf of 
the Judicial Conference on the 
Judiciary's courthouse construction 
program and the fiscal year 1999 
budget. He was accompanied by 
Judge B. Avant Edenfield (S.D. Ga.), 
Bankruptcy Judge Lamar Davis (S. 
D. Ga.), and Judge Michael Ponsor 
(D. Mass.). 

Senate Committee Chair 
John H. Chafee (R-RI) opened 
the hearing saying he believed 
the physical characteristics 
of federal buildings should 
be commensurate to the duties 
that are carried out in them, 
but that Congress had a duty 
to the American public "to 
look for the most effective 
space, at the very best deal 
possible." In a reference to the 
committee's urging of the 
Judicial Conference and GSA 
to work to guarantee all 
recommended projects are 
meritorious and worthy of 
taxpayer funds, Chafee said, 
"I believe that the GSA /courts 
partnership and the additional 
steps taken by the Judiciary are 
slowly helping restore confidence in 
publicly funded construction. 
Certainly, it is key to the willingness 
of this Committee and of the Senate 
in general to consider courthouse 
projects positively." 

The committee heard Stahl 
testify that the 14 courthouse 
projects were ranked and approved 
by the Judicial Conference for FY99 
as part of the Judiciary's 5-year 
plan. This prioritization process 
requires that all courthouse projects 
be scored, considering four factors: 
the year the courthouse is out 
of space; the level of security 



Courthouse projects 

authorized by Congress 

for Fiscal Year 1999 

Brooklyn, New York 
Biloxi/Gulfport, Mississippi 
Denver, Colorado 
Eugene, Oregon 
Laredo, Texas 
Springfield, Massachusetts 
Jacksonville, Florida 
Wheeling, West Virginia 
Little Rock, Arkansas 
Cape Girardeau, Missouri 
Greene ville, Tennessee 
San Diego, California 
San Jose, California 



problems; the number of judges 
affected; and operational concerns. 
Stahl also outlined changes to the 
planning process and design stan- 
dards, including revisions to the U.S. 
Courts Design Guide, that have 
contributed to cost-containment. 
According to Stahl, the Judiciary also 
is planning a major review of the 
entire space and facilities program. 
Stahl gave similar testimony in 
March and July to the House Com- 
mittee on Transportation and 
Infrastructures Subcommittee on 
Public Buildings and Economic 
Development. 

The Senate committee also 
considered S. 2481, the Public 
Buildings Reform Act. Among other 
things, the bill would provide the 
GSA administrator with the author- 
ity to set housing standards for the 
judicial branch and to determine 
essential characteristics of accom- 
modations needed by the courts. 
"We continue to be concerned about 
this aspect of any public buildings 
reform initiative," Stahl told the 
committee. "In our view, the user of 
a facility is in the best position to 
determine what it needs to do its 
work." &^ 



i! 



The Third Branch 



October 1998 



JUDICIAL MILESTONES 



Appointed: John D. Kelly, as U.S. 
Court of Appeals Judge, U.S. Court of 
Appeals for the Eighth Circuit, 
August 25. 

Appointed: Raner Collins, as U.S. 
District Judge, U.S. District Court 
for the District of Arizona, August 
19. 

Appointed: Sam A. Lindsay, as U.S. 
District Judge, U.S. District Court for 
the Northern District of Texas, 
September 1. 

Appointed: Dan A. Polster, as U.S. 

District Judge, U.S. District Court for 
the Northern District of Ohio, August 
10. 

Appointed: Mary F. Walrath, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Delaware, 
September 9. 

Elevated: Judge Kim M. Wardlaw, 

as U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Ninth 
Circuit, August 3. 

Elevated: Judge Frank J. Polozola, to 

Chief Judge, U.S. District Court for 



the Middle District of Louisiana, 
succeeding John V. Parker, Septem- 
ber 1. 

Elevated: Bankruptcy Judge Peter 
J. Walsh, to Chief Judge, U.S. 
Bankruptcy Court for the District of 
Delaware, succeeding Helen S. 
Balick, September 9. 

Senior Status: Robert E. Cowen, 

U.S. Court of Appeals for the Third 
Circuit, September 4. 

Retired: Magistrate Judge Fidencio 
G. Garza, Jr., U.S. District Court for 
the Southern District of Texas, 
August 31. 

Retired: Senior Judge James M. 
Ideman, U.S. District Court for the 
Central District of California, 
September 11. 

Retired: Senior Judge Pierce 
Lively, U.S. Court of Appeals for 
the Sixth Circuit, January 30, 1998. 

Deceased: Bankruptcy Judge 
Sidney C. Volinn, U.S. Bankruptcy 
Court for the Western District of 
Washington, August 23. 



Attorney General Meets with Executive Committee 




Before the Judicial Conference, the Executive Committee met with Attorney General Janet 
Reno, shown here with Judge Wm. Terrell Hodges, chair of the Committee, to discuss 
matters of mutual concern between the Department of Justice and the Judiciary. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Photo on page 12 courtesy of 
the Supreme Court 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



JUDICIAL B0X8C0RE 

As of October 1,1998 



Courts of Appeals 




Vacancies 


17 


Nominees 


12 


District Courts 




Vacancies 


53 


Nominees 


29 



Court of International Trade 
Vacancies 1 

Nominees 1 



Courts with 

"Judicial Emergencies" 



34 



For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Branch m October 1998 



founts Back in Service Following Hurricane Georges 



Hurricane Georges cut a wide and 
ret swath from the Caribbean across 
) the Gulf states leaving several 
>deral court facilities damaged in its 
ath. Fortunately, in a hurricane that 
aimed well over 100 lives, no 
eaths or injuries of judicial officers 
r court employees were reported, 
iiticipating the worst from Hurri- 
ine Georges, the Administrative 
tffice Disaster Response Team, 
eaded by William Lehman, coordi- 
ated assistance to the affected 
)urts, including special procure- 
lent authority to replace damaged 
juipment and restore function, 
hey also assessed the need for 
>ecial payroll transfers where banks 
ight be closed by the storm. 

The federal buildings in the dis- 
ict of the Virgin Islands generally 
eathered Georges with minor dam- 
;es. In St. Croix, there was water in 
/o courtrooms, jury rooms, and the 
5rary of the Almeric L. Christian 
?deral Building, but the building 
opened for business shortly after 
e storm passed. The exception was 
e court facilities in the St. Thomas 
deral building, where a leaking 
of damaged the main courtroom 
id the new library. Although the 
turt was quickly up and running, 
e courtroom will be out of service 
r some time. "We've been hit so 
any times by hurricanes, we're 
>ed to it," said Chief Judge Thomas 

Moore (D. V.I.). "The Islands have 
?en rebuilt to new code and some 
)wer and many phone lines are 
)w underground. Still, we consider 
irselves blessed. Georges was a 
wderline Category 5 hurricane, and 
iraculously dropped to a Category 
before it hit us. Se we came 
rough fairly well." 

The federal buildings in the dis- 
ict of Puerto Rico also generally 
me through Georges with minor 
images. Eighty percent of Puerto 
co was without electricity and 
ater for days after the hurricane, 



with sections of San Juan slowly re- 
gaining power and water. The his- 
toric Post Office and Courthouse in 
San Juan, which was under construc- 
tion and renovation, was damaged 
slightly. The Clemente Ruiz Nazario 
U.S. Courthouse and the Frederico 
Degetau Federal Building in Hato Rey 
were initially closed, not because of 
damage, but because they were with- 
out power. The facilities reopened 
using emergency electrical generators. 

By the time the hurricane had 
moved across the Florida Keys and 
into the Gulf States, Georges had been 
downgraded to a tropical storm, but 
was still capable of 100 mph winds 
extending up to 145 miles from the 
storm center, and of dumping as 
much as 30 inches of rain from 
Louisiana to the Florida panhandle. 
President Clinton declared major 
disasters or emergencies in Florida, 
Alabama, Mississippi, and Louisiana 
and ordered federal aid to supple- 
ment state and local recovery efforts 
in the area struck by Hurricane 
Georges. 

There was substantial water 
damage on every floor of the new 
Pensacola, Florida, courthouse in the 
Northern District of Florida, from 
water in the fifth floor courtroom 
ceiling, to a flooded first floor lobby 
and a collapsed ceiling in the U.S. 
Marshals Service conference room. 
Despite this, the court was open 
almost immediately for business. 
"We're trying to dry out," said Clerk 
of Court Robert Mossing, "but we 
have to take care of our public." The 
Middle District of Florida had no 
significant damage. The hurricane 
closed the Tampa and Fort Myers 
courthouses briefly in anticipation of 
severe weather. "We were fortu- 
nate," said Clerk of Court Richard 
Sletten. "We had an October 1 move- 
in date for the new Tampa court- 
house, and I was just hoping we'd 
come through without any damage." 
The Southern District of Florida 



reported no power or water at its 
Key West office, but otherwise few 
leaks or damage. 

Chief Judge Morey L. Sear (E. D. 
La.) spent Sunday night before the 
storm at the New Orleans court- 
house, along with several judges, the 
clerk of court, and other court 
employees who lived in low-lying 
areas or in the path of the winds. At 
4:00 a.m. Monday morning as he was 
walking the family dog, Sear was 
surprised to hear the storm had come 
and gone. "We had rain three weeks 
before the hurricane that was far 
more damaging," said Sear. "We 
closed the courthouse Monday 
because that was the day the storm 
was due to come ashore. And we 
remained closed Tuesday only 
because so many people working at 
the court had evacuated the area." 

While televised stories showed 
knee-high water in the streets of 
Mobile, Alabama, the water never 
lapped the U.S. courthouse there. 
"We had some rain damage in a few 
of the offices," said Deborah S. Hunt, 
clerk of court for the Southern Dis- 
trict of Alabama. "We were braced 
for something hideous, but we were 
very lucky." Not so lucky was the 
federal defenders' office on the 
appropriately named Water Street, 
where first-floor flooding cut off 
power and telephone service to 
offices on the upper floors. 

In the Southern District of Missis- 
sippi, Clerk of Court J.T. Noblin said 
the advance warning on Georges 
gave them time to back-up electronic 
files and secure computer equipment 
before the storm hit. Even at less than 
hurricane strength, Georges's winds 
were strong enough to move the roof- 
top air conditioner units at the Biloxi 
office, and some water damage oc- 
curred. Cell phones kept key people 
in touch until power was restored 
several days after Georges passed. 
"It could have been a lot worse," 
said Noblin. "As it is, when we de- 
sign our new courthouse, we'll take a 
good look at storm protection." 



C i 






The Third Branch 



October 1998 



INTERVIEW 



An Interview with Philip S. Andersnn, ABA President 1998-1999 



Philip S. Anderson is a partner in the 
Little Rock, Arkansas, law firm of 
Williams & Anderson. He became 
American Bar Association president in 
August 1998. 

Q # You began your tenure as 
• ABA President in August. It 
may be early, but what special 
initiatives or causes will you pursue 
in the coming year? 

A # I have announced initia- 
• tives on the independence of 
the Judiciary and the independence 
of the profession. In addition, I have 
asked the ABA's Litigation Section to 
undertake a long-term project on 
racial and gender fairness in our 
justice system. 

In May 1999, the American Bar 
Association, the Conference of Chief 
Justices, the Conference of State 
Court Administrators, and the 
League of Women Voters will 
sponsor a national conference on 
public trust and confidence in our 
system of justice. We expect the 
attendance of every state chief 
justice, public and bar representa- 
tives from each state, and other 
national leaders from business, the 
media, the bench, and the bar. We 
will invite the chief judge from every 
federal circuit to attend. We expect 
to leave the conference with a 
national strategy to strengthen 
public trust and confidence. 

In preparation for the national 
conference, the ABA will sponsor 
two national symposia. The first is 
scheduled for December. It will be 
held in Philadelphia and be co- 
sponsored by the University of 
Pennsylvania School of Law. It will 
examine the origins of our tripartite 
system of government and why, by 
the late eighteenth century, the idea 
of an independent Judiciary had 



become linked with the notion of 
liberty. It will also cover the history 
of efforts by the other branches of 
our government to encroach on 
judicial independence. We will look 
at judicial accountability and judicial 
discipline. I am pleased that Justices 
Kennedy and Breyer will participate 
in the symposium, and that Gerhard 
Casper, the president of Stanford 
University, will open the proceed- 
ings and lead the initial discussion 
on separating powers. The second 
symposium will be held in the 
District of Columbia in February. We 
will examine public perceptions of 
our justice system, how public 
perceptions are formed and rein- 
forced, and whether we can do a 
better job of educating the public, 
beginning with junior and senior 
high-school students. 

Several of the federal circuits and 
some states commissioned task 
forces a few years ago to study issues 
of gender or racial fairness or both. 
All of the task forces have issued 
reports with recommendations. I 
asked the ABA's Section on Litigation 
to study the recommendations and 
develop a program for their imple- 
mentation throughout the state and 
federal systems. I am pleased that a 
Fairness Task Force will begin work 
on this project immediately. This is a 
long-range project, and we expect 
long-range and enduring results. 



Q # You chaired the ABA's 
• Coalition for Justice from 
1994 to 1997. What is the coalition 
and its importance? 

A # The ABA's Coalition for 
• Justice is directed by a 
broad-based group of national 
leaders from the public and the 
profession. It coordinates the ABA's 



/ *^b 




Philip S. Anderson 



programs with state and local bar 
associations that are designed to 
improve access to justice and elevate 
public awareness about our system 
of justice. In addition, the coalition 
seeks partnerships with other 
national organizations with shared 
goals. The coalition and the Ameri- 
can Association of Retired Persons 
have co-sponsored a program on the 
delivery of legal services to persons 
whose incomes are above the pov- 
erty level and who need legal 
assistance but cannot afford tradi- 
tional services. The national confer- 
ence scheduled for next May in co- 
sponsorship with the League of 
Women Voters is an outgrowth of 
the coalition's efforts to forge alli- 
ances with national organizations 
with similar interests. 



Q # Political attacks on judges 
• have intensified. How 
should federal judges respond to 
unfair criticism? Is the ABA doing 
anything to mitigate these attacks? 

A # Any effort to intimidate 
• federal judges by calling 
for their impeachment or resignation 
because of the way that they decide 
certain cases is not just an attack 



10 






er 1998 



)n judges, it is an attack on the 
Constitution. An independent 
udiciary is essential to a free society, 
rhe national conference that I 
nentioned earlier is an effort to 
nstitutionalize a program of public 
•ducation that will discourage unfair 
nticism of judges. The ABA has 
■ncouraged state and local bar 
issociations to adopt a Model Plan 
or Response to Criticism of Judges, 
"he plan establishes a protocol for 
esponding to erroneous or inaccu- 
ate criticism. Of course, not all 
riticism of judges warrants a 
esponse. Some discussion of judicial 
lecisions is an important aspect of 
elf-government and the lawmaking 
>rocess. When criticism oversteps 
he bounds of fairness, the bar has an 
•bligation to the public to set the 
ecord straight. 

The bar must respond to attacks 
>n judges, because the judges cannot 
lo so. The ABA will continue to 
mphasize the responsibility of the 
lational bar and the state and local 
iars in fulfilling this obligation. 



Q. The ABA's House of 
• Delegates voted to support 
he filling of federal judicial vacan- 
ies. In the past the ABA has been 
riticized for its review of judicial 
lominees. What role should the ABA 
•lay in the nomination of judicial 
andidates? 

A , The ABA Standing 
ti • Committee on Federal 
udiciary has evaluated the profes- 
ional qualifications of prospective 
lominees to the federal bench for 
lmost half a century. The high 
[uality of the federal bench is due in 
>art to the work of the standing 
ommittee, which focuses solely on 
he professional competence, integ- 
ity, and judicial temperament of 
andidates for appointment. Those 
re the only qualities considered by 
he standing committee, and by 
uniting consideration to those 



professional qualifications the 
committee avoids the partisan 
considerations that often animate the 
judicial selection process. In addi- 
tion, the committee has numerous 
safeguards to ensure that the review 
of candidates is conducted with the 
highest degree of probity. It is ironic 
that the work of the committee has 
been characterized as political. The 
role that the ABA plays in the 
nomination of federal judges is 
appropriate for an organization that 
has more than 400,000 members and 
can speak with confidence on behalf 
of the legal profession in America. It 
has a broad, non-partisan view. The 
ABA provides an important service 
to the Judiciary and to our citizens, 
and this assessment has been shared 
by most Administrations since the 
process was implemented by Presi- 
dent Eisenhower. 



Q # You've also had some 
• experience in the judicial 
nominations process, serving on the 
U.S. Circuit Court Judge Nominating 
Commission Panel for the 8 th Circuit. 
Are there any recommendations that 
you'd draw from that experience 
that would apply to the judicial 
nominations process? 

A. I am proud of the lists of 
• candidates that our panel 
submitted to the President, and 
prouder still of the records of the 
judges on the Eighth Circuit who 
were selected from those lists. An 
objective assessment of the experi- 
ence would have to be that the selec- 
tion of candidates for federal judges, 
just as the selection of federal judges, 
is a political exercise. The nominat- 
ing commission model adds one 
more political layer to the process. 
For those senators who want that 
protection, the nominating commis- 
sion is a satisfactory way of achiev- 
ing it. At bottom, however, the selec- 
tion of the judge is ultimately up to 
the senators. I think that the best way 



is to leave it up to the senators in the 
first place. The splendid judges who 
were selected from the lists that our 
commission submitted would have 
been selected without the interven- 
tion of the nominating commission. 
From purely a personal standpoint, I 
learned much from the process and 
developed friendships that last until 
this day. 



Q. As we near the year 2000, 
• what changes do you 
anticipate — or would you like to 
see — in the practice of federal civil 
and criminal law? 

A # I anticipate changes in the 
• way that legal services are 
delivered to clients. Financial 
services firms, accounting firms and 
other corporate entities that do not fit 
the traditional mold of law firms will 
attempt to offer services that re- 
semble legal services. I am concerned 
that new entities offering legal 
services will not be interested in 
providing legal services to the poor 
on a pro bono basis. I am concerned 
that the new entities will not protect 
client confidences, and that clients 
will not be shielded from the vices of 
conflicts of interest. I am concerned 
that the new entities will not be 
sufficiently independent to protect 
the Judiciary and to sue for reform 
against a government that may tend 
to be suffocating in its efforts to 
advance the interests of the majority 
that elected it. What would I like to 
see? I would like to see a sustained, 
robust debate about the virtues of 
our republic and why it has endured 
and the promises that it has for 
humankind. I would like to see a 
continuation of an independent 
profession that provides stability to 
the fabric of our society and to the 
institutions of our government. And 
I would like to see the preservation 
of the core values of our profession 
by lawyers wherever they employ 
their legal training. 






C I 



11 



The Third Branch 



October 1998 



Judicial Conference oi the United States, September 15, 1998 




Seated: (LtoR) Chief Judge Juan R. Torruella (V Cir.); Chief Judge Ralph K. Winter, Jr. (2 nd dr.); Chief Judge Edward R. Becker (3 rd dr.); 
Chief Judge J. Harvie Wilkinson III (4"' Cir.); Chief Justice William H. Rehnquist; Chief Judge Henry A. Politz (5 th Cir.); Chief Judge Boyce F. 
Martin, Jr. (6"' Cir.); Chief Judge Richard A. Posner (7 lh Cir.); Chief Judge Pasco M. Bowman II (8 th dr.). 

Standing, Second Row: Judge Joseph A. DiClerico, Jr. (D. N.H.); Judge Peter C. Dorsey, (D. Conn.); Judge Donald E. Ziegler (W.D. Pa.); 
Chief Judge Haldane Robert Mayer (Fed. Cir.); Chief Judge Procter R. Hug, Jr. (9 ,h Cir.); Chief Judge Joseph W. Hatchett (11 th Cir.); Chief 
Judge Harry T. Edwards (D.C. Cir.); Chief Judge Stephanie K. Seymour (10"' Cir.); Chief Judge Charles H. Haden II (S.D. W.Va.); Judge 
Robert E. Miller, Jr. (N.D. bid.). 

Standing, Third Row: Chief Judge William H. Barbour, Jr. (S.D. Miss.); Judge Thomas A. Wiseman, Jr. (M.D. Tenn.); Judge Lloyd D. 
George (D. Nev.); Judge Ralph G. Thompson (W.D. Okla.); Judge James M. Rosenbaum (D. Minn.); Judge Wm. Terrell Hodges (M.D. Fla.); 
Chief Judge Norma H. Johnson (D. D.C); Chief Judge Gregory W. Carman (Ct. Int'l Trade); Eeonidas Ralph Mecham, Director, AO. 



THE THIRD BRANCH 

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•>tl 



THE 



l./ fynA'ty 




■-BRANCH 



TODERALDEPO 



Newsletter 
of the 
Federal 
Courts 



Vol. 30 
Number 11 
November 1998 




mnibus Appropriations Bill A Mixed Bag For Judiciary 



idiciary Funded, 
ut Not Without 
imitations 

The Judiciary received its fiscal 
ar 1999 funding when Congress 
ssed the omnibus appropriations 
1, but it came with a string at- 
:hed. The string in this case was a 
ovision cutting off funding on June 
for all agencies in the Commerce, 
stice, and State, the Judiciary and 
iated Agencies portion of the bill. 
ie limitation is a compromise 
tween congressional leaders and 
B White House on a census sam- 



pling debate that holds the agencies 
hostage to future resolution on the 
conduct of the year 2000 census. 
Representative Harold Rogers (R-KY), 
chair of the House Appropriations 
Subcommittee on Commerce, Justice, 
and State, the Judiciary and Related 
Agencies, stated during debate on the 
bill in the House that the limitation is 
"a serious mistake." 

Earlier in the session, controversy 
over statistical sampling for the 
upcoming census held up passage of 
the Commerce, Justice, State and the 
Judiciary appropriations bill. By 
including the June 15 limitation in the 

See Budget on page 5 



Boston 
ourthouse 




page 8 



At the festivities marking the opening of the Boston courthouse were (from 
left) Chief Judge Juan R. Torruella (V dr.), Chief Judge Joseph L. Tauro (D. 
Mass.), Senator Ted Kennedy (D-MA), Judge Douglas P. Woodlock (D. 
Mass.), and Supreme Court Justice Stephen Breyer. 



105™ Congress Ties Up Legislative Ends pg. 2 

Boston Builds a Center for Civic Life pg. 8 

GSA Recognizes Long Range Facility Planning pg. 12 



Omnibus Bill Funds 
Courthouses in 1999 

Construction on 13 new or 
expanded courthouses will 
proceed in fiscal year 1999, 
thanks to $460 million authorized 
and appropriated by Congress 
in the omnibus appropriations 
bill. The FY99 Treasury and 
General Government Appropria- 
tions Act originally contained 
funds for the projects but this bill 
ultimately was folded into the 
omnibus bill. Congress also 
provided $25 million for six 
major repair and alteration 
projects, and approved additional 
funding to complete site acquisi- 
tion and design of the Orlando, 
Florida, project and renovation of 
the Milwaukee, Wisconsin, 
courthouse. 

The White House did not 
include funds for new court- 
houses in either the FY99 or the 
FY98 budget request. The Office 
of Management and Budget 
(OMB) withdrew the General 
Services Administration's 
funding request before the 1999 
budget was transmitted to 
Congress. As a consequence, 
every effort was made by the 
Judiciary to present its case 
to Congress for the courthouses, 
See Courthouses on page 7 



* i 

1: : 

* ! 
" J 



'" I 



E 



End oi the I05 m Congress Resolves Legislative Action 



The second session of the 105 th 
Congress finally ended October 21, 
well past the planned October 9 
deadline for adjournment that was 
prolonged by negotiations over 
appropriations. And what a session 
it was for the Judiciary. There was 
finger-pointing over the pace of 
judicial nominations and confirma- 
tions, castigation of purported 
judicial activists on the floor of 
Congress, and the introduction of 
bills and amendments in both 
Houses on issues from prisoner 
release orders to judges' travel. In 
the end, 65 judges were confirmed 
in the second session, and most of 
the introduced bills affecting the 
Judiciary failed to pass both 
Houses. 

Among the bills that failed in 
the 105 th Congress were the so- 
called "judicial activism" bills, the 
Judicial Reform Act of 1997, H.R. 
1252, and the Senate bill S. 2163, 
the Judicial Improvement Act of 
1998. The multi-part bills included 
proposals to provide that a three- 
judge court hear challenges to 
state referenda and Acts of Con- 
gress, to allow peremptory chal- 
lenges of judges in civil cases, and 
to transfer for resolution com- 
plaints for judicial misconduct to a 
circuit other than one in which the 
complained-against judge sits. A 
law and order amendment added 
to the House-passed bill would 
have placed limitations on pris- 
oner release orders and terminated 
any existing consent decrees 
providing for remedies relating to 
prison conditions. Judicial Confer- 
ence representatives testified in 
opposition to most parts of the 
House bill. There were no hearings 
on the Senate bill. 

The Federal Courts Improve- 
ment Act, H.R. 2294, which 
contained many provisions to 
facilitate the operation of the 



Judiciary was passed by the House. 
Senator Charles Grassley (R-IA) 
introduced his own version, S. 2516, 
which was passed by the Judiciary 
Committee with an amendment 
requiring Article III judges to report 
annually to Congress on all travel 
not directly case-related. The amend- 
ment is unacceptable to the Judicial 
Conference. Grassley insisted on the 
inclusion of this amendment as a 
condition of the bill moving forward. 



Legislative Scorecard 



Failed 

H.R. 1252, Judicial Reform Act 

S. 2163, the Judicial Improvement Act 

H.R. 2294 and S. 2516, the Federal Courts 
Improvement Acts 

S. J. Res. 44 and H.J. Res. 71, bills proposing 
a constitutional amendment to protect 
victims' rights 

S. 1081 and H.R. 1322, bills proposing a 
statutory alternative to the victims' rights 
amendment 

S. 10 and H.R. 3, juvenile crime bills 

S. 1529, and H.R. 3081, Hate Crimes Preven- 
tion Acts 

H.R. 1534, the Private Property Rights Im- 
plementation Act 

H.R. 992, the Tucker Act Shuffle Relief Act 

S. 2271, Property Rights Implementation Act 
of 1998 

H.R. 1544, S. 1166, Federal Agency Compli- 
ance Acts 

S. 678, Federal Judgeship Act of 1997 

H.R. 1596, the Bankruptcy Judgeship Act 

Passed 

H.R. 3528, the Alternative Dispute Resolu- 
tion Act of 1998 

S. 1021, the Veterans Employment Opportu- 
nities Act of 1997 

H.R. 3396, the Citizens Protection Act of 
1998, (included in the omnibus appro- 
priations bill 

S. 1892, a bill barring a person closely 
related to an Article III judge from 
serving on the same court 

H.R. 3898 and S. 2024, enhancing metham- 
phetamine mandatory minimum sen- 
tences (included in the omnibus appro- 
priations bill) 

S. 191, to throttle criminal use of guns 



As a consequence, S. 2516 did not 
come to a vote in the Senate. 

S. J. Res. 44 and H.J. Res. 71, bills 
proposing a victims' rights constitu- 
tional amendment were introduced 
in the 105 th Congress, as were S. 1081 
and H.R. 1322, bills proposing a 
statutory alternative to the victims' 
rights amendment. The Judicial 
Conference took no position on the 
enactment of a constitutional amend- 
ment, but did express its strong 
preference for a statutory ap- 
proach. None of these bills passed, 
but it is expected that supporters 
will introduce legislation again in 
the 106 th Congress. 

Comprehensive crime bills, 
including the juvenile crime bills 
S. 10 and H.R. 3, failed to move 
forward in this Congress, although 
last-minute attempts were made to 
conference the House and Senate 
juvenile justice bills. The juvenile 
crime bills, in particular, would 
have brought normally state- 
prosecuted defendants into the 
federal courts, some as young as 
14 years of age. The Judicial Con- 
ference's long-standing position is 
that federal prosecutions should 
be limited to those offenses that 
cannot or should not be pros- 
ecuted in state courts, and this 
particularly applies to juvenile 
crime. 

For the same reason, the Con- 
ference voiced concerns over the 
Hate Crimes Prevention Act of 
1998, S. 1529, and H.R. 3081, a 
similar bill introduced in the 
House. Although public support 
for the bills was generated in the 
wake of two notorious murders, 
neither bill was enacted. 

Provisions similar to the House- 
passed H.R. 1534, the Private 
Property Rights Implementation 
Act of 1997, and H.R. 992, the 
Tucker Act Shuffle Relief Act, 
were combined by the Senate 



The Third Branch 



November 1998 



nto a different version of H.R. 1534, 
is S. 2271, but the bill never came 
o a Senate vote. The Judicial Con- 
erence had expressed concerns 
ibout both bills. H.R. 1534 was 
ntended to expedite access to 
ederal courts in property rights 
:laims, and H.R. 992 would have 
iffected the jurisdiction of the Court 
>f Federal Claims, as well as the 
listrict courts, in Fifth Amendment 
akings cases. 

The House and Senate passed 
eparate bankruptcy reform legisla- 
ion, and a conferenced version of 
he bill was passed by the House, but 
>ecause of a filibuster threat over 
everal provisions and with a 
hreatened White House veto 
ooming, the bill never came to a 
r ote in the Senate. This also ended 
nv hopes for the additional bank- 
uptcy judgeships that the legislation 
\'ould have created. 

The Judicial Conference sup- 
K>rted a bill, H.R. 1544, the Federal 
Agency Compliance Act, which 
vould have prohibited federal 
gencies from adopting a policy of 
ion-acquiescence to, and re-litigation 
if, the precedent established in a 
>articular federal circuit. H.R. 1544 
>assed the House; however, a 



Nominations and Confirmations 


the point where the Chief Justice, 
in his 1997 Year-End Report on 




In the second session of the 


the Judiciary, urged the President 


105 th Congress, 65 nominees for 


to nominate candidates "with 


federal judgeships were con- 


reasonable promptness" and the 


firmed by the Senate. When 


Senate to act "within a reasonable 


Congress adjourned there were 


time to confirm or reject them." 


still 21 nominees pending and 50 


A Washington Post editorial called 


judicial vacancies. At the end of a 


the 65 nominees confirmed in 


Congress, all pending nomina- 


1998 a "marked improvement . . . 


tions are returned to the White 


in the judicial nominations pro- 


House. 


cess," observing that both the 


In the first session of the 105 th 


President and the Senate had 


Congress, the pace of nominations 


apparently heeded the Chief 


and confirmations had slowed to 


Justice's call. £v^ 



companion bill, S. 1166, introduced 
in the Senate, was not reported out of 
committee. Recommendation 11 of 
the Judiciary's Long Range Plan for the 
Federal Courts was the impetus for 
this legislation. 

Bills To Be Signed Into Law 

A number of bills on alternative 
dispute resolution (ADR) circulated 
in the 105 th Congress. H.R. 3528, the 
Alternative Dispute Resolution Act 
of 1998, passed the House and 
Senate. The President is expected to 
sign the bill, which requires every 



judicial district to have some type of 
ADR program, but does not require 
judges to make any litigant partici- 
pate. The Conference supports the 
use of ADR by district courts and did 
not oppose the bill. 

Congress passed S. 1021, the 
Veterans Employment Opportu- 
nities Act of 1997, a bill that initially 
would have required the Judicial 
Conference to promulgate judicial 
branch regulations providing a 
preference to certain veterans in 
appointment and in reductions in 

See Congress on page 4 



Judgeships 



Congress failed to act on the 
Judicial Conference request for 12 
permanent and five temporary 
courts of appeals judgeship 
positions, 24 permanent district 
judgeship positions, and 12 
temporary district court positions. 
A judgeship bill, S. 678, was 
introduced in the Senate in the 
first session of the 105 th Congress. 
Senator Charles E. Grassley (R-IA) 
subsequently requested that the 
General Accounting Office review 
the basis upon which the Judicial 
Conference made its request for 
Article III and bankruptcy judge- 



ships. The Senate Judiciary Sub- 
committee on Administrative 
Oversight and the Courts, chaired 
by Grassley, also held hearings 
during this Congress on judicial 
vacancies. Judges from all circuits 
except the Ninth Circuit were 
asked to testify on the need for new 
judgeships and the use of current 
resources. 

The failure to pass bankruptcy 
reform bills in this Congress also 
ended hopes for the bankruptcy 
judgeships provided for by the 
legislation. Based upon the high 
growth in bankruptcy caseloads in 
certain judicial districts, the Judicial 
Conference had requested the 



creation of seven permanent and 
1 1 temporary bankruptcy judge- 
ships. The House passed H.R. 1596, 
the Bankruptcy Judgeship Act of 
1997, which would have created 
the 18 bankruptcy judgeships and 
extended a temporary judgeship in 
the District of Delaware. Instead 
of approving that bill, Grassley 
introduced S. 1301, the Senate's 
controversial Consumer Bank- 
ruptcy Reform Act of 1998, which 
also would have created 18 
temporary bankruptcy judgeships 
and extended the terms of five 
existing temporary bankruptcy 
judgeships. Neither bill passed both 
houses. £-^ 



The Third Branch 



November 1998 



Congress continued from page 3 

force. The final bill, which the 
President is expected to sign, 
continues to require the Conference 
to promulgate such regulations 
but will only affect certain employee 
levels in the Administrative Office, 
the Federal Judicial Center, and 
the U.S. Sentencing Commission. 

Provisions of H.R. 3396, the 
Citizens Protection Act of 1998, were 
included in the Commerce, Justice, 
State, the Judiciary appropriations 
bill, which was signed by the Presi- 
dent as the omnibus appropriations 
package. The provisions provide that 
government attorneys are subject to 
state laws and rules and local federal 
court rules. 

The President also is expected to 
sign S. 1892, a bill barring a person 
closely related to an Article III judge 
from serving on the same court. 
The bill is related to the nomination 
of William A. Fletcher, whose 
mother sits on the Ninth Circuit, 
and who had been nominated to fill 
a judgeship vacancy in the Ninth 



Sentencing Commission Loses Ability to Act 



With the adjournment of 
Congress and the resignation, on 
October 31, 1998, of commission 
chair Judge Richard P. Conaboy, 
the U.S. Sentencing Commission 
was a seven-member commission 
without commissioners. The 
commission already had four 
vacancies, and three members with 
expired terms could serve only 
until Congress adjourned. Con- 
gress did not confirm or reappoint 



any commissioners before ending 
the 105 ,h Congress, reportedly 
because the White House and key 
senators failed to agree on candi- 
dates. Some of the commission's 
work — studies, research, training 
and legal analysis — will continue, 
but the sentencing guidelines may 
not be amended nor conflicts 
resolved in interpretation of the 
guidelines without a quorum of 
four commissioners. #«^ 



Circuit. Upon his confirmation, 
which had been delayed for more 
than three years, Judge Betty Fletcher 
had announced she would take 
senior status. S. 1892 would be 
applicable to future nominees, not 
Fletcher. The Fletcher nomination 
was confirmed by the Senate on 
October 8, 1998. 

The omnibus appropriations act 
also included enhanced metham- 
phetamine mandatory minimum 



sentences. This provision will 
equalize the punishments for crack 
and methamphetamine possession 
by increasing the penalties for 
methamphetamine. 

Congress also passed S. 191, 
which enhances penalties for using a 
firearm during a drug trafficking 
offense or crime of violence. S. 191 
dramatically increases the firearms 
mandatory minimums contained in 
18 U.S.C. § 924 (c). 




Third "Just the Beginning" 

Foundation Celebratioo Held 

io Detroit 



The third "Just The Beginning" 
Foundation (JTBF) Celebration was 
held in September in Detroit. Judge 
Damon J. Keith (6 th Cir.) chaired the 
event attended by more than 300 
African American federal prosecu- 
tors, and circuit, district, magistrate 
and bankruptcy judges. Among its 
missions, the non-profit foundation 
commemorates the contributions of 



African Americans to the federal 
Judiciary and educates the public 
on the struggles and successes of 
African American lawyers and 
judges. This year's gathering was 
co-sponsored by the Damon J. 
Keith Law Collection of African 
American Legal History at 
Wayne State University, De- 
troit. 



4 



The Third Branch m November 1998 



ddget continued from page 1 

nnibus appropriations bill, both 
ie White House and congressional 
aders are gambling that the 
ipreme Court will rule by that 
ite on census sampling litigation. 
tieir plan is to enact legislation, 
llowing the ruling, to remove the 
nitation. Unfortunately, if either 
de is unhappy with the Supreme 
ourt's decision or with the pro- 
ved legislation, it could delay 
ligation of the remaining 3Vz 
onths of appropriations, precipitat- 
g a shutdown of the agencies. 
Said Rogers, "All of the programs 
this bill, such as the Supreme 
3urt, the rest of the federal courts, 
e Department of Justice, the FBI, 
e INS, the DEA, the State Depart- 
ent embassies abroad, and loans to 
nail businesses, could be shut 
)wn over a political dispute 
itween Congress and the adminis- 
ition over how to conduct the 
nsus. I cannot believe the adminis- 
ition insisted on this provision, 
id I cannot believe that the admin- 
Tation wants to hold open the 
)ssibility of shutting down these 
tal functions of government as 
yerage for its position on the 
nsus, that has been rejected by two 
strict courts." 



Every effort will be made to avoid 
any type of disruption to court 
operations, including seeking legisla- 
tion from Congress in the spring to 
exclude the judicial branch from this 
funding limitation. 

The omnibus appropriations bill 
provides total FY99 obligations of 
$4.06 billion for the Judiciary. This is 
a 6 percent increase over the FY98 
financial plans, but less than the 8.4 
percent increase the Judiciary had 
requested. Of this, $3.22 billion is 
provided for salaries and expenses of 
the courts of appeals, district courts 
and other judicial services. While the 
funding does not allow for staffing 
increases on a national level, the 
salaries and expenses financial plan 
does establish a reserve allowing 
those court units facing significant 
workload increases to request 
additional staff. The Defender 
Services account is provided an 
obligational level of $395.71 million. 
The Fees of Jurors account is pro- 
vided $69.38 million, and Court 
Security is provided $178.52 million. 

The Judiciary was pleased that the 
omnibus bill did not include several 
provisions it opposed in the House 
and Senate Commerce, Justice, State 
and the Judiciary appropriations 
bills. The omnibus bill dropped the 



Senate report's requirement for a 25 
percent reduction in judges' travel 
and chambers staffing and a court- 
room sharing study. The bill also no 
longer includes an amendment 
capping payments to panel attorneys 
at the pay level of U.S. attorneys. 
Finally, the bill removed provisions 
requiring the Judiciary to pay for the 
costs of special masters overseeing 
prison condition cases and to con- 
sider a rule change to allow counsel 
to accompany witnesses during 
grand jury proceedings. 

Unfortunately, the omnibus bill 
did not include certain other provi- 
sions having to do with pay. The 
general provision inserted in the 
Senate bill by Chairman Judd Gregg 
(R-NH), providing judges with a 
cost-of-living adjustment in FY99, 
was dropped from the omnibus 
bill. The Treasury portion of the 
omnibus bill also included a provi- 
sion denying a COLA for members 
of Congress, judges, and executive 
schedule employees. In addition, the 
omnibus bill again denies the 
Judiciary's request to give panel 
attorneys a $5 per hour rate increase. 
The Judiciary is required to report to 
Congress on several aspects of the 
cost of defender services as well, 
particularly regarding capital and 

capital habeas cases. £«v^ 



— FY 1998/1999 Funding Summary — — 

Courts of Appeals, District Courts and Other Judicial Services 
(Total obligations in thousands of dollars) 





FY 1998 


Revised 


FY 1999 

Conference 






ACCOUNT 


FY 1998 TO FY 1999 
Amount Percent 


Salaries and Expenses 


$3,047,820 


$3,294,409 


$3,221,478 


$173,658 


5.7% 




Defender Services 


362,867 


409,591 


395,713 


32,846 


9.1% 




Fees of Jurors 


67,903 


69,379 


69,379 


1,476 


2.2% 




Court Security 


167,891 


179,703 


178,520 


10,629 


6.3% 




TOTAL OBLIGATIONS 


$3,646,481 


$3,953,082 


$3,865,090 


$218,609 


6.0% 



.11 I 

III 



The Third Branch m November 1998 



JUDICIAL MILESTONES 



Appointed: Carl J. Barbier, as U.S. 
District Judge for the Eastern 
District of Louisiana, October 12. 

Appointed: Gerald Bruce Lee, as 

U.S. District Judge for the Eastern 
District of Virginia, October 9. 

Appointed: Gregory M. Sleet, as 

U.S. District Judge for the District of 
Delaware, September 23. 

Appointed: Lawrence O. 
Anderson, as U.S. Magistrate Judge 
for the District of Arizona, Septem- 
ber 23. 

Appointed: Thomas M. 

DiGirolamo, as U.S. Magistrate 
Judge for the District of Maryland, 
September 18. 

Appointed: David L. Martin, as 

U.S. Magistrate Judge for the 
District of Rhode Island, September 
29. 

Elevated: Judge Henry R. Wilhoit, 
Jr., to Chief Judge, U.S. District 
Court for the Eastern District of 
Kentucky, succeeding Judge Will- 
iam O. Bertelsman, September 20. 

Elevated: Bankruptcy Judge 
Rosemary Gambardella, to Chief 
Judge, U.S. Bankruptcy Court for 
the District of New Jersey, succeed- 



ing Bankruptcy Judge William H. 
Gindin, August 12. 

Elevated: Bankruptcy Judge Susan 
Pierson Sonderby, to Chief Judge, 
U.S. Bankruptcy Court for the 
Northern District of Illinois, succeed- 
ing Bankruptcy Judge John D. 
Schwartz, July 20. 

Retired: Judge John G. Davies, U.S. 

District Court for the Central District 
of California, July 18. 

Retired: Magistrate Judge William 
L. Harper, U.S. District Court for the 
Northern District of Georgia, Sep- 
tember 30. 

Deceased: Judge John D. Kelly, U.S. 
Court of Appeals for the Eighth 
Circuit, October 21. 

Deceased: Senior Judge David S. 
Nelson, U.S. District Court for the 
District of Massachusetts, October 
21. 

Deceased: Senior Court of Appeals 
Judge Spottswood W. Robinson, III, 

U.S. Court of Appeals for the District 
of Columbia, October 11. 

Deceased: Senior Court of Appeals 
Judge Collins J. Seitz, U. S. Court of 
Appeals for the Third Circuit, 
October 16. 



Director's Awards Nominations Sought 


Nominations for the 1999 


January 11, 1999. 


Director's Awards for Excellence 


The Director's Award for Excel- 


in Court Operations and the 


lence in Court Operations honors 


Director's Award in Outstanding 


employees whose efforts have im- 


Leadership now are being ac- 


proved the daily function of the 


cepted. Nomination forms will be 


courts. The Director's Award for 


sent to all payroll certifying officers 


Outstanding Leadership recognizes 


for distribution to employees. 


managerial employees who have 


Nominations must be received by 


made long-term contributions to 


the Administrative Office Human 


the administration of the federal 


Resources Division by 


Judiciary. #»^ 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Boston courthouse photos by Gail Oskin 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



JUDICIAL B0XSC0RE 

As of November 1,1998 

Courts of Appeals 

Vacancies 15 

Nominees 



District Courts 

Vacancies 35 

Nominees 

Court of International Trade 
Vacancies 1 

Nominees 

Courts with 

"Judicial Emergencies" 21 

For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Branch m November 1998 



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Courthouses continued from page 1 

including an 
appeal from Chief 
Justice William 
H. Rehnquist to 
Senate and 
House leaders 
for courthouse 
funds. Admin- 
istrative Office 
Director 
Leonidas Ralph 
Vlecham also 
tvrote to and 
met with Speaker 
i)f the House Newt 
oingrich and the top 
leaders of the House and 
senate budget, appropriations, 
ind authorizing committees to 
■equest full funding for the court- 
houses. 

Judges sitting in the affected 
iistricts contacted their senators and 
■epresentatives and Judge Norman 
-I. Stahl (1 st Cir.), chair of the Judicial 
Zonference Committee on Security 
ind Facilities, met with committee 



Courthouse Projects Approved lor FY 99 



t New/Expanded Sites 
O Repair/Alteration Sites 





Springfield, MA 



Brooklyn, NYj 

^>*f New York 
Philadelphia, PA 



leaders and also testified in 
hearings before House and Senate 
committees. These efforts, combined 
with those of AO staff, successfully 
pushed home the need for the 



courthouses. Funds for every re- 
quested courthouse project were 
approved, with the exception of 
Savannah, Georgia, which is under 
further study. £<^ 



Biennial Questionnaire Asks Judges to Name Preferences 



The 1999 biennial Judicial Confer- 
ence Committee Appointments 
Questionnaire will be mailed shortly 
to all federal judges, who will have 
an opportunity to make known their 
rurrent preferences for appointment 
to one of the 24 Judicial Conference 
committees. Since September 1987, 
these biennial questionnaires have 
been used to create a new database 
every two years reflecting the 
interests of judges in serving on 
Conference committees. "Knowing 
where judges want to serve and that 
they are available for an appoint- 
ment makes our job much easier," 
>aid AO Director Leonidas Ralph 
vlecham, who assists the Chief 
[ustice in filling vacancies. 



The Judicial Conference, the 
Judiciary's policy-making body, 
depends on its committees to study 
and develop recommendations 
on substantive issues affecting the 
administration of the federal 
courts. Committee service provides 
judges an opportunity to play a key 
role in this process. "Judges who 
have not been appointed, despite 
having completed questionnaires 
in the past, should not be discour- 
aged," said Mecham. "This data- 
base is referenced over and again 
during the two-year period be- 
tween surveys to identify judges to 
fill unexpected committee vacancies 
and vacancies on other entities for 
which the Chief Justice is the ap- 



pointing authority (such as the 
Judicial Panel on Multidistrict 
Litigation), or to serve on an occa- 
sional special or ad hoc committee. 
According to those who have served 
in the past, the opportunity to serve 
is worth the wait." 

Committee appointments rotate 
on October 1st each year, and terms 
are usually three years in duration, 
with one reappointment possible. 
Appointments and reappointments 
depend upon, among other things, 
judges being current in their judicial 
work. The Chief Justice retains all 
appointment authority and exer- 
cises full discretion in deter- 
mining who will serve and for how 
long. &^ 



■ii i 

( t 

* i 

■u , 

t . 



III t 

■II 



The Third Branch 



November 1998 



INTERVIEW 




■ - ■ 



■ 



The Courthouse os o Cooler of Civic Life 



TTB interviewed Judge Sandra L. 
Lynch (l sl Cir.) and Judge Douglas P. 
Woodlock (D. Mass.) on the opening of 
the Boston, Massachusetts, courthouse. 



Q # What were your roles in the 
• planning and construction of 
the new Boston courthouse? 

Woodlock: I have been involved 
since 1987 when GSA did a study to 
see whether or not the old Boston 
courthouse could be renovated to 
serve the needs of the courts. When 
that building was built there were 
three resident federal judges in 
Boston. At the time GSA did the 
study, there were about 20 resident 
federal judges in Boston, and the 
courthouse was literally bursting at 
the seams. The GSA study was 
characteristically inconclusive, but 
the House Appropriations Commit- 
tee authorized a separate study by 
the Administrative Office concerning 
the Boston situation and that study 
was clearer. There was no way the 
old building could be renovated or 
restored to serve the purpose of the 
courts. I became irretrievably in- 
volved at that point, an involvement 
that has continued from the appro- 
priations process all the way through 
completion of construction, as a 
representative of the Massachusetts 
district court. 

Lynch: This courthouse is the home 
of the District Court of Massachusetts 
as well as the central home of the 
First Circuit. So throughout the 
process there has been a representa- 
tive from both courts. The representa- 
tive of the First Circuit initially was 
Chief Judge Levin H. Campbell, and 
then after Judge Stephen Breyer 
became Chief Judge, Judge Breyer 
was involved through 1994, when he 



went on to the Supreme 
Court. 

When I came on the 
court, replacing Judge 
Breyer, I was involved, 
particularly in the con- 
struction and program- 
ming phase of the 
future courthouse. It 
seemed to me that we 
could do more with the 
Community Outreach 
Program. 



Q # Generally, what message 
• should the architecture of a 
federal courthouse send its commu- 
nity? What did you tell the architect, 
Harry Cobb, when you first sat 
down with him? 

Woodlock: At the outset Harry 
Cobb told us that "the courthouse 
should convey in every aspect of its 
design those qualities — probity, 
permanence, clarity and restraint — 
that are embodied in the adminis- 
tration of justice." To develop those 
principles, we began a series of 
extended conversations with the 
architect in 1991 on what courts do 
generally and what the federal 
courts do specifically. There were 
two additional basic propositions 
that we thought were fundamental. 
First, is the sense that the courts are 
open and accessible to everyone. 
The second is that the courts are 
engaged, on a day-to-day basis, in 
attempting to craft judgments that 
reflect the highest aspirations of the 
profession, and the building should 
reflect that sensibility. 

One thing that we didn't do is 
prescribe some particular official 
style. We thought the process of 
designing the courthouse should 
grow out of these conversations. 



The architect embodied these 
principles, in one way, through a 
huge picture window that looks out 
on the city of Boston and the harbor, 
but also lets the city look back into 
the courthouse. Symbolically it 
illustrates the openness of the courts, 
the sense that this public institution 
can at the same time be observed by 
and serve the public. 

The craftsmanship involved in this 
building exists at a variety of levels, 
but perhaps the most basic one is in 
the masonry. This is a building made 
out of brick; the masons were encour- 
aged, in fact challenged, to provide 
the highest quality of workmanship. 
They used the most common of 
materials to illustrate brick-by-brick 
the craftsmanship that ought to be 
expressed by the work of the courts 
themselves. We felt strongly that the 
courts depend for their authority on 
persuasiveness, accordingly the 
building was designed to be a 
medium to express the sense that we 
are doing our work, open to the 
public in a craftsman-like way. 

Lynch: I have a latecomers' perspec- 
tive because I was not involved in the 
design. But I have observed how the 
design interacts with the messages 
the building sends to our commu- 



The Third Branch m November 1998 




Left: To maximize the benefit to the public of its prime 
location, the courthouse leaves more than half of its 4.5-acre 
site for public space. 

Below: Shaped by the slope of the 394-foot glass conoid, the 
Great Hall is an indoor extension of the Harborpark it 
overlooks. 



nity, in addition to the sheer utility of 
the building as a courthouse. 

It is a building designed to be an 
important public building, to demon- 
strate the respect that our society has 
for the Rule of Law. It is a building 
of some dignity, without grandeur or 
pretense. It is a building that affords 
dignity to jurors, in the performance 
of their role. The jury rooms here are 
windowed rooms. The juror assembly 
lounge is a beautiful room that looks 
out through the eight-story glass wall. 
There is a sense of respect that the 
building conveys for the participants. 

It is a very efficient and economi- 
:al building. It was built within 
budget and at a moderate per- 
>quare-foot cost within this area for 
mch a complex building. 

It is a safe building, far safer than 
?ur old courthouse. That is accom- 
plished largely by having three 
separate circulation patterns, one for 
prisoners; one for jurors, operations 
md judges' chambers; and one for 
he public. These patterns do not 
ntersect. In the old courthouse they 
ntersected all of the time and caused 
>ecurity problems. Here, people feel 
iafer, and they are safer. 

This is a building that is meant to 
>e a center of civic life. It is more 
han a courthouse; it provides a 



vehicle to educate the 
public about the role of 
law and the Rule of Law. 
It was designed with 
spaces that could be used 
by the public and for 
educational functions. 



Q # Security is, of 
• course, a con- 
cern. What measures can be taken to 
ensure security along with public 
accessibility to the courthouse? How 
do you build a courthouse that 
doesn't look like a fortress? 

Woodlock: It is hard to conceive of 
any building in an urban area that 
isn't to some degree vulnerable, but 
they ought not to look vulnerable, 
and they shouldn't appear to be 
fortresses. We took a whole series of 
steps to "harden" the building, to 
incorporate into the structure various 
kinds of security appropriate to the 
special needs of the building. At the 
same time we sought to avoid the 
appearance that terrorist groups had 
set the agenda for the design of 
public spaces. For example, we have 
this huge picture window that looks 
out to the water. Yet, it is set back 
quite a way from the street. The 




whole idea is to make it secure, and 
not let people feel that it is fortress. 
We did that through a strong street 
wall that's made out of brick, and by 
putting most of the glass in a part of 
the building that's not immediately 
accessible from the street. 

Lynch: The Boston courthouse 
shows that you can build a court- 
house without making it look like a 
fortress. I'd like to talk about why 
that is important. Courthouses ought 
to look like the place people receive 
justice. The symbolic value of this 
building is that it communicates the 
principles of American law rather 
than the principles of oppression. 
This building conveys all of the 
appropriate messages for a democ- 
racy. It is possible to do that and still 
build a secure building. 

See Interview on page 10 



H, I 

m , 

E , 

* I 



The Third Branch 



November 1998 



Kfr 



'.•x-N'- 



Interview continued from page 9 

Q, How does a federal court- 
• house integrate itself into its 
community? 

Lynch: I will only speak about the 
choices made in Boston. Our court- 
house is located in a very important 
area of this city, and it was inconceiv- 
able to the city, to the state, and to 
the judges that the building would 
not serve in some sense as an impor- 
tant civic building, open to the public. 
So we made commitments to the 
community that to the extent con- 
sistent with judicial use of the build- 
ing, security, and funding, the build- 
ing would be open to public use. 

GSA, the landlord of the building 
itself, hired the professional manag- 
ers who in turn hired a full-time 
staff person as a courts and commu- 
nity program coordinator. Her job is 
to see to the scheduling of events in 
the building, and to help pull the 
public into the building. For ex- 
ample, we are having a children's 
theater production next weekend at 
a time when the court doesn't sit, 
and the courthouse would normally 
be closed. The children's theater 
group wants to craft some special 
theatrical programs around the 
theme of justice and the court 
system to explain that to kids. 

We also turned to the Bar for 
assistance with our idea that this 
building should be used as a vehicle 
to educate the public about the role 
of the courts and the rule of law in a 
democratic society. The Boston Bar 
Association raised several hundred 
thousand dollars to hire a full-time 
staff coordinator to work on this use 
of the courthouse to educate the 
public. As a result we were able to 
have a community open house on 
the day after the courthouse's grand 
opening ceremony. On that Satur- 
day, the courthouse had between 
four and five thousand people go 
through it. They brought their 
children up to the courtrooms where 



there were judges and volunteer 
lawyers arguing some of the great 
cases. You heard people asking 
questions about their constitutional 
rights, and about how the court 
system operated. One of the judges 
ran a courtroom for kids, and the 
kids came in and they sat in the jury 
box and they asked questions about 
what it meant to be a juror. They 
tried on a judge's robe, they sat at a 
table and they drew drawings of 
what justice meant to them. We 
would like, through the Boston Bar 
Association program, to bring most 
of the area school children through 
this building to provide them with a 
basic civics education on the role of 
the Third Branch of government. The 
Boston public schools are very 
receptive to this idea, and we hope 
that students will learn that the 
courts are an important part of a 
democratic government. 

Woodlock: It is very much in the 
best interest of the Judiciary to 
attempt to tell our story in a way that 
is consistent with our mission. We 
are introducing school children to 
what has become the least under- 
stood branch of government. Work- 
ing through the Boston Bar Associa- 
tion, and with the Children's Mu- 
seum, which is only a block away, 
and with a variety of other pro- 
grams, we have tried to embark on 
that educational program. It is good 
for the general 
public, but it is 
also good for 
the Judiciary at 
a time when the 
Judiciary is 
under attack 
and the inde- 
pendence of the 
Judiciary is 
subject to 
harangue. It is 
important that 
the public 
develop a sense 
of what the 



Judiciary does. Once they have that 
understanding, they will become the 
most active supporters of the idea of 
an independent and properly 
regarded judicial branch of govern- 
ment. 

Lynch: There has been much 
concern expressed about the public 
not understanding the role of the 
courts. A former president of the 
American Bar Association reported 
to the workshop of all of the judges 
in the First Circuit last week that 
there has not been a mandatory 
civics education program in this 
country for the last 15 years. The 
superintendent of the Boston public 
schools reports to us that he consid- 
ers the mandated state social studies 
curriculum to be deficient in basic 
civics education. The type of educa- 
tion about the role of courts in a 
democracy, which we assume is 
there, is in fact not there, and so I 
think it is important judges partici- 
pate in these efforts. When we had 
this workshop a Bar president said to 
us that the use of this building for 
these educational purposes was one 
of the most important things the 
judges could do to restore a sense of 
respect for this branch of government. 
We are building a constituency for 
the courts in the bar and in the pub- 
lic, and we are helping with a basic 
understanding in the role of the courts 
in a democracy. Much of the debate 




10 



I hird Branch ■ November 1998 



about cameras in the courtroom has 
centered around the need to educate 
the public about what the courts do. 
We have decided in Boston that there 
are other methods of educating and 
getting that message out, and that's 
what we have been engaged in with 
the Bar association. 

Woodlock: From a construction and 
a use-of-building point of view, this 
really doesn't cost anything at all. 
We are making use of spaces that 
otherwise would be unused in the 
building for large periods of time. Of 
course the courts must be able to do 
their business, and nothing can 
interfere with that, but you should 
recognize that federal courthouses 
generally have what they call a 66 
percent or so efficiency ratio, which 
means 33 percent of the space is 
circulation space or otherwise non- 
occupied space. It's space that's not 
used for a specific programmatic 
function. We've taken those circula- 
tion spaces and designed them to 
accommodate large public gather- 
ings and events, spaces the commu- 
nity could use when the courts are 
not in session. Moreover, the jury 
assembly area in off hours can do 
double duty as a public gathering 
space. It amounts to a kind of 
leveraging of the federal dollar to 
maximize use of a public building. 

Lynch: And let me add, that the 
community reaction to this notion of 
the courthouse as a community 
center has been overwhelmingly 
positive. The people voted with their 
feet when they came into the court- 
house for the open house. In fact, the 
next day, Sunday, the building was 
closed and we had hundreds of 
people knocking on the door, want- 
ing to get in and see their new 
courthouse. Let me point out one 
other aspect of the building that may 
be unique. At the ground floor of 
this building there is a plaque 
integrated into the design of the 
wall, with the names of the workers 




who built this courthouse, workers 
of all colors, men and women. We 
thought that it was important to 
acknowledge our indebtedness to 
those workers who created this 
magnificent building. And as part of 
our opening ceremony we invited all 
of the workers back to the building 
so they could see their names and 
show their families what they had 
built. 



Q # In your experience, what 
• would be the most important 
point (or perhaps points) to keep in 
mind in the planning and construc- 
tion of a federal courthouse? 

Woodlock: It's not merely a respon- 
sibility, it is a duty for the federal Ju- 
diciary to get actively involved in the 
process. I have spent some time look- 
ing at courthouses around the country. 
The ones that don't work are the ones 
where the judges were not actively 
involved. The ones that do work are 
the ones in which the judges had a 
major role. This is not merely estab- 
lishing authority with the relevant 
players like GSA, but it is also being 
willing to make the kind of time 
commitment that is necessary to 
provide meaningful direction. 

The importance of these buildings 
for these communities just can't be 
understated. There hasn't been a 
federal courthouse built in Boston 
for three generations. We hope this 



Left: Costumed 
characters from 
Boston's historic 
past helped Judge 
Sandra L. Lynch (1" 
Cir.) (photo center) 
open the new Boston 
courthouse. 

Below left: 

Although the 27 
courtrooms vary in 
size and purpose, 
they share the same 
form, material and 
detail. 



building will last five or more 
generations and leave a lasting 
impression on the community. Early 
on in this process, Justice Breyer 
said, "Do you know why we have to 
be so actively involved in this? 
Because people are going to look at 
this building and say the federal 
judges were involved in that build- 
ing. If we get it right, generations of 
people will recognize that the federal 
Judiciary understood its responsibili- 
ties. If we get it wrong, there will be 
generations of people blaming us." 

Lynch: It was absolutely essential 
that judges from both the court of 
appeals and the district court were 
involved in the design of the build- 
ing, and throughout the construction 
phases. You will get back what you 
put into it, and people should not 
underestimate the time commitment. 
This is a serious project to be dealt 
with, with the same care and atten- 
tion that we give to our caseloads. 
And Justice Breyer had it exactly 
right, the community looks at the 
building as a symbol of federal 
judicial power. That symbol should 
not be an arrogant one. It should be 
one of a good neighbor and a re- 
spected branch of government. This 
means judges have to ask questions 
and to listen to the different seg- 
ments of the community, including 
the bar, that may be affected and 
synthesize the information and use it 
in the design of the building. £»^ 



t ' 






c i 



an i 



ii 



The Third Branch 



November 1998 






Judiciary Planning Process Wins GSA Award for Best Practice 



The Judiciary's Long Range Facilities Planning process, 
developed by the Administrative Office, was a winning 
entry in the General Services Administration's Sec- 
ond Annual Achievement Award for Real 
Property Innovation. The LRFP process, won 
in the "Best Practice" category as the first 
systematic approach to space and 
facilities planning in the federal 
government. It was selected from 
among 41 entries submitted by 
federal agencies. 

The LRFP process was begun in 
1988 and uses statistical models of 
the judicial districts to anticipate 
the number of judicial officers and 
staff necessary to meet the demands 
of forecasted caseloads. Space 
needs over 5-, 10-, 20-, and 30-year 
increments then can be projected, 
and the requests for new or ex- 
panded courthouses prioritized. "The 
Judiciary recognizes the benefits of 
taking the long view with regard to 




Presented iu 

Sluice and Facilities Division 

Valines, Security anil Ailmlnlslrrjm Semlcti 
ulmlnlsiriiiltv Office of the United Statu Courts 



courthouse construction," said AO Director Leonidas 
Ralph Mecham. "The foresight of Gerald Thacker, the 

assistant director of the Office of Space and 
Facilities, Security and Administrative 
Services, and his staff in developing 
the LRFP has put us in the fore- 
front of space and facilities 
planning." 

The GSA awards were devel- 
oped to recognize the successes 
of the federal real property 
community, improve communi- 
cations among real property 
professionals, and share the best 
policies and practices imple- 
mented by federal agencies. 
Entries were evaluated by a 
four-member independent 
panel of real estate and manage- 
ment experts representing a 
cross-section of private, gov- 
ernment, and international 
organizations. 




THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

PAID 

U.S. COURTS 
PERMIT NO. G-18 



FIRST CLASS 



U.S. Government Printing Office 1998-418-610-80006 



/t 



THE 



ijEd-llvL/ 



JMl 



^DE^AL 



D 




ANCH 



Study Commission Issues Final Report 




The Commission on Structural 
alternatives for the Federal Courts of 
appeals submitted to the President 
nd Congress its Final Report — 
.'hich can be found on the 
Commission's Internet website at 
ttp:/ ' /app.comm.uscourts.gov. 

Chief Justice William H. Rehnquist 
ppointed the Commission in late 
997 after Congress created it to 
udy the structure and alignment of 
\e federal appellate system, with 
articular reference to the Ninth 
ircuit. The Commission recom- 
\ends several measures to "equip 
\e courts of appeals with an ability, 
Tucturally and procedurally, to 
commodate continued caseload 
rowth into the indefinite future, 



The members of the Commission on 
Structural Alternatives for the Federal 
Courts of Appeals, meeting in 
Washington to work on the final report, 
were (seated) retired Justice Byron R. 
White, and (photo left to right) Judge 
William D. Browning (D. Ariz.), N. 
Lee Cooper, Judge Pamela Ann Rymer 
(9 th Cir.) and Judge Gilbert S. Merritt 
(6 th Cir.). 



while maintaining the quality of 
the appellate process and 
delivering consistent deci- 
sions — assuming, of course, that 
the system has the necessary 
number of judges and other re- 
sources." The five-member Commis- 
sion is chaired by Retired Justice 
Byron White. 

Among the Commission's conclu- 
sions and recommendations: 

■ Congress should restructure the 
Court of Appeals for the Ninth 
Circuit but should not split the Ninth 
Circuit. Splitting the circuit (which 
includes district and bankruptcy 
courts as well as the court of appeals) 
is impractical and unnecessary. The 
circuit's boundaries and administra- 
tion should be preserved without 
statutory change. 

■ Congress should restructure the 
circuit's Court of Appeals into three 

See Final Report on page 5 



Trends Show in 5- Year Retrospective pg. 2 

Grants to Increase Public Access to Court Records pg. 6 

Search Begins for FJC Director pg. 9 



Newsletter 
of the 
Federal 
Courts 



Vol. 30 
Number 12 
December 1998 




INTERVIEW 



Discussing the Issues at DOJ 

An Interview With 
Deputy Attorney General 
Eric H. Holder, Jr. 

Eric H. Holder, Jr. has been 
Deputy Attorney General since 
1997. He was previously the U.S. 
Attorney for the District of Colum- 
bia, and an Associate Judge of the 
Superior Court of the District of 
Columbia. 

Q # The Judicial Conference 
• has strongly urged 
Congress to consider a statutory 
approach, as opposed to a 
constitutional amendment, to 
crime victims' rights. Where does 
the DOJ stand on this? 

A # The Department's review 
• of the issue of victims' 
rights has persuaded us that no 
satisfactory degree of protection 
for the rights of crime victims can 
be secured in the foreseeable 
future by any means other than a 
federal constitutional amend- 
ment. 

Despite the hard work of 
victims' advocates over the last 
two decades, state statutes and 
constitutions have proved ineffec- 
tive in guaranteeing rights for 
victims. State efforts, while 

See Interview on page 10 



Ml | 

*> | 

t ! 



Five Year Retrospective Takes Stock 



A look back at five years of 
federal court caseloads reveals not 
only trends in filings, but also what 
factors influence filings. 

It is little surprise that the overall 
federal caseload has been on the 
upswing since 1992. According to 
the Federal Judicial Caseload, A Five- 
Year Retrospective, published by the 
Administrative Office, filings 
between July 1, 1992 and June 30, 
1997, of new cases in 
the appellate and 
bankruptcy courts 
reached record 
heights. In that time 
too, filings of 
criminal cases and 
defendants reached 
their highest levels 
since Prohibition 
was repealed in 
1933. "The retro- 
spective shows that 
the workload of the 



U.S. District Courts 

Personal Injury Cases Filed 



65 
60 
55 
50 
45 
40 
35 
30 



Many of these cases were filed twice, 
first when they were removed to fed- 
eral courts and a second time when 
they were transferred to the Northern 
District of Alabama. By 1997 fewer 
breast implant cases were filed, and 
personal injury cases fell 24 percent. 

Prisoner petitions fell 7 percent 
from 1996 to 1997, even though the 
number of cases had been increasing 
steadily since 1993. The fall was 

produced by a 30 
percent drop in a 
single category of 
prisoner petitions, 
prisoner civil 
rights. What 
triggered the 
decline? In April 
1996, Congress 
passed the Prison 
Litigation Reform 
Act (PLRA), which 
seeks to reduce the 
filing of frivolous 




1993 1994 1995 1996 1997 
12-Month Period That Ended June 30 



i t 



federal Judiciary has increased 
dramatically," said AO Director 
Leonidas Ralph Mecham. "But this 
5-year look back not only gives us 
perspective, it tells us what influ- 
ences our caseload. All indications 
are that our future caseloads will be 
larger and the demands on judicial 
resources even greater in the years to 
come." 

CIVIL FILINGS 

The retrospective shows that in 
1997 civil case filings declined for 
the first time since 1991, largely 
because two of the major categories 
contributing to total civil filings — 
personal injury cases and prisoner 
petitions — dropped substantially. 
Why? Beginning June 25, 1992, 
breast implant cases were trans- 
ferred from the state courts to 
federal courts. Due to the continued 
removal of breast implant cases from 
state courts to federal courts, per- 
sonal injury filings increased 54 
percent between 1995 and 1996. 



petitions, in part, by imposing filing 
fees. Interestingly, the number of 
prisoner petitions rose for a short 
time as prisoners rushed to file 
petitions before the law — and new 
filing fees — took affect. 

Changes in old laws also have im- 
pacted filings. The number of diver- 
sity filings has been affected by a 
change in the amount in controversy 
requirement for diversity jurisdic- 
tion. Diversity filings grew 1 1 per- 
cent from 1993 to 1997. In 1996, how- 
ever, 28 U.S. C. §1332 was amended 
to increase the amount in controversy 
requirement for diversity jurisdiction 
cases from $50,000 to $75,000. The 
next year, diversity filings dropped 
1 1 percent. This was not completely 
unexpected; a similar downward 
shift occurred in 1989 when the 
jurisdictional amount was increased 
from $10,000 to $50,000 and diversity 
cases continued to decline from 1989 
to 1992. But it may not be entirely the 
amount in controversy that has 
driven the number of diversity cases. 



The 1997 drop may be due to a drop 
in breast implant cas< 

It is not always changes in the law 
that account for caseload shifts. 
Contract actions increased 16 percen 
in 1997 because of a 147 percent 
increase in filings to recover over- 
payments related to defaulted 
student loans. The U.S. Department 
of Education said the increase was 
due to its streamlined delinquent 
loan processing system. 

CRIMINAL FILINGS 

From 1993 to 1997 criminal cases 
filed increased 7 percent. From 1993 
through 1995, however, there was a 
percent decline in cases filed. Drug 
cases, which have a major influence 
on total criminal filings, fell 8 percer 
during that time. Was there a declin 
in crime? Actually, between 1993 
and 1994, assistant U.S. attorney 
positions in the Department of 
Justice (DOJ) were frozen, which 
resulted in fewer criminal cases 
being filed. After the freeze was 
lifted, from 1995 to 1997, the numbe 
of criminal defendants in cases filed 
increased 9 percent. 

DOJ staffing also may have 
influenced another category of 
criminal cases: immigration. These 
cases grew 200 percent between 199 
and 1997. In this time DOJ increased 
its efforts to secure the south westerr 
U.S. border with initiatives empha- 
sizing the prosecution of alien 
smuggling and of attempted reentry 
by deported aliens or aliens previ- 



U.S. District Courts 

Drug Cases Commenced 



13500 



13000 
12500 
12000 
11500 
11000 
10500 
10000 




1993 1994 1995 1996 1997 
12-Month Period That Ended June 30 



I hi- Ihird lirumh 



Ik; ember 1998 



U.S. District Courts 

Immigration Cases Commenced 




1992 1993 1994 1995 1996 1997 
12-Month Period That Ended June 30 

usly convicted of felonies. As a 
esult, the Southern District of 
California led the nation in immigra- 
on filings in 1997. 

Enforcement policies have af- 
?cted other areas of criminal filings. 
>runk driving and traffic cases 
ropped from 1993 to 1997, affected 
y changes in enforcement policies 
>r military bases in Hawaii, as well 
I changes in enforcement priorities 
y local U.S. attorneys and by park 
olicy within federal parks. 

Hi 

Growing civil and criminal district 
)urt caseloads eventually increase 
le number of appeals filed. Appeals 
lings rose 5 percent between 1993 
id 1997, caused mainly by a 29 
?rcent increase in prisoner petition 
?peals. Prisoner petition appeals 
3w constitute 31 percent of the 
apellate caseload. The year 1996 
iw a boost in prisoner petitions 
aceable to the 1995 Supreme Court 
?cision in Bailey v. U.S., as well as 
e enactment of the PLRA and the 
ntiterrorism and Effective Death 
•natty Act of 1996. As noted pre- 
ously, many inmates rushed to file 
Jtitions before the PLRA fee require- 
ent took affect. Other prisoner 
'peals may have been filed in light 
Bailey, which established that for 
ihanced penalties to apply for 
■ing a firearm during a drug trai- 
ling offense or crime of violence, a 
;fendant actually must have used a 



U.S. Court of Appeals 

Criminal Appeals Filed, 1993-1997* 



12 



10 



gun while committing the offense. In 
addition, appeals may have been 
filed in reaction to the Antiterrorism 
Act, which sets strict time limits for 
acting on habeas corpus petitions 
and motions for rehearing. 

Generally, filings for civil appeals 
rose 1 1 percent. Criminal appeals 
have fluctuated since 1993, affected 
between 1993 and 1994 by the same 
DOJ hiring freeze that reduced 
criminal filings 
in district courts. 
After declining 
in 1994 and 1995, 
criminal appeals 
rose 1 percent 
from 1996 to 
1997. Drug 
appeals also 
constituted a 
smaller percent- 
age of criminal 
appeals filed, 
declining from 
51 percent in 
1993 to 45 
percent in 1997. 

BANKRUPTCY FILINGS 

In 1996, bankruptcy filings topped 
the one million mark for the first 
time, part of the long-term rise in 
filings during which the number of 
cases has increased 43 percent 
between 1993 and 1997. The vast 
majority of bankruptcy cases, 96 
percent in 1997, are non-business or 
personal bankruptcies. Non-business 
cases rose 48 percent between 1993 
and 1997. The rise in bankruptcy 
filings is most likely connected to the 
greater availability of consumer 
credit — which has produced record 
levels of debt as a percentage of 
personal income. 

WORKLOAD AND CASELOAD 

The Judiciary applies weights to 
filings in district courts as a means of 
accounting for differences in the time 
required for judges to resolve 
various types of civil and criminal 
actions. From 1993 to 1997, the total 




1993 1994 1995 1996 1997 
■ Other M Drugs 
12-Month Period That Ended June 30 
"Excludes the U.S. Court of Appeals for the Federal Circuit. 



number of weighted civil and 
criminal filings per district judge- 
ship climbed 13 percent. The 
weighted filing system was changed 
in 1993 to assign weights to criminal 
cases on a per defendant basis rather 
than on a per case basis. 

Between 1995 and 1997, the 
number of criminal defendants in 
cases filed increased 9 percent due to 
an increase in drug cases filed. Drug 
cases typically 
require nearly twice 
the amount of work 
of judges and more 
judicial resources. 
For example, in 1997 
the number of 
defendants in a non- 
drug case was 1 .22, 
while the number of 
defendants per drug 
cases averaged 1.91. 

With the increased 
bankruptcy caseload, 
the workload of the 
bankruptcy courts 
has expanded and courts have 
worked hard to keep pace. From 
1995 to 1997, pending cases grew 22 
percent, even though nationwide 
terminations were 31 percent higher 
in the same time period. The number 
of filings per authorized bankruptcy 
judgeship is 43 percent greater than 
the 1993 average and 26 percent 
greater than the average for 1996. 
A five-year retrospective on the 
caseload confirms expectations that 
overall filings will continue to 
increase. And while anticipating 
these trends and projecting 
workloads helps distribute judicial 
resources where they are most 
needed, there are areas where the 
Judiciary cannot provide remedies. 
The Judiciary does not control its 
workload, which increases nearly 
every year. An increasing caseload 
translates to an increasing workload. 
Yet, no new Article III judgeships 
have been created since 1990, and no 
new bankruptcy judgeships have 
been created since 1992. 5l 



The Third Branch 



December 1998 



; ; 

il 



Where the Money Goes 

Allocating Resources in 
the Federal Judiciary for 
Fiscal Year 1999 

Fiscal year 1999 may be the 
harbinger of fiscal belt-tightening 
to come. Although the Judiciary 
fared relatively well, receiving 
total obligations of $4.06 
billion, a 6 percent increase, 
Congress did not provide 
funds for new positions 
associated with workload 
growth. This meant that 
the Judicial Conference 
Executive Committee was 
unable to fund all courts at 
84 percent of staffing formulas 
based on current workload. Adminis 
trative Office 
Director Leonidas 
Ralph Mecham 
warned that bud- 
get restrictions 
government-wide 
could make the 
next fiscal year 
more difficult for 
the Judiciary. 

"Budget Com- 
mittee Chair Judge 
John Heyburn, 
committee mem- 
bers, my staff, and I 
will work hard to 
obtain from 
Congress the best 
appropriation 

possible for fiscal year 2000; 
nevertheless, we need to prepare 
for the possibility of a lean year," 
Mecham said. 

Based upon recent experience, 
Congress likely will not give the 
Judiciary its full appropriation 
request in fiscal year 2000 — possi- 
bly as much as $200 to $300 million 
less than needed. At that lower 
funding level, it may be difficult for 
courts to maintain current services, 
much less count on additional 



funding for workload increases. 
Cutbacks on current spending levels 
would be certain. "Given the poten- 
tial magnitude of the shortfall, it is 
essential we proceed to develop 
operational options for fiscal year 
2000 and beyond at the district, 
circuit, and national levels," Mecham 
said, "Planning for 2000 and beyond 
needs to be a 




Top: The budget is divided into two major 
categories with 95% allocated to the Courts of 
Appeals, District Courts, and other judicial 
services. The remaining 5% is divided between 
the Supreme Court, Court of Appeals for the 
Federal Circuit, Court of International Trade, 
Administrative Office, Federal Judicial Center, 
Payments to the Judiciary Trust Fund, and 
U.S. Sentencing Commission. 

Right The Appellate, district, and other judicial 
resources are further broken down into support 
for specific programs that includes fees of 
jurors and commissioners, court security, 
defender services, and salaries and expenses. 



Below. The money allocated to salaries and 
expenses is further divided into salaries and 
benefits of supporting personnel, space and 
facilities, salaries and benefits of judges, 
operating expenses, automation and 
technology, and other programs and 
reserves. 



ct. 

Appeals, 

District 

Courts, 

Other 

Judicial 

Services 



Supreme 
Court, Ct. 
of Appeals 
Fed. Cir., 
Ct. Intr 
Trade, AO 



priority for every Judicial Confer- 
ence program committee." 

FY99 is not without its own 
problems. Funding will be cut off on 
June 1 5 for all agencies in the Com- 
merce, Justice, and State, the Judi- 
ciary and Related Agencies portion 
of the omnibus appropriations act. 
This limitation is a result of the 
debate over census sampling and 
hopefully will be resolved in the 
wake of a Supreme Court ruling 
on the census sampling litiga- 
tion. A major effort is already 
underway to exempt the Judi- 
ciary from the June 15 potential 
cut-off. For the months through 
June, however, here is how the 
Judiciary will distribute its fiscal 
resources. 




Salaries 

Expense 

Defende 
Services 

L~ Court 
Security 

□ Fees of 
Jurors 




□ 



□ 



Personnel 
Salaries & 
Benefits 

Space & Facilitic 

Judges' Salaries 
& Benefits 

Operating 
Expenses 

Automation & 
Technology 



□ Other Programs 



4 



hird Branch 






First Complete Review of Ethics Opinions Ends 



The first comprehensive review 
and revision of the Judiciary's 94 
advisory opinions on ethics has been 
completed. The task, which took 
nearly two years, was undertaken by 
the Judicial Conference Committee 
on Codes of Conduct. 

Historically, advisory opinions 
have been drafted by the committee 
in response to inquiries from judges 
or judicial employees on frequently 
raised issues or where an issue may 
have broad application. But with 
some opinions dating back to the 
1970s, it was not uncommon for them 
to include advice that was superseded 
or qualified by changes in the codes 
af conduct, the Ethics Reform Act of 
1989, and subsequent published ad- 
visory opinions. Although individual 



opinions had been revised over the 
years, this is the first time all opinions 
have been scrutinized and updated. 

"Some of the older opinions the 
committee reviewed were not entire- 
ly accurate in light of changes to the 
various codes of conduct and conse- 
quently were more likely to befuddle 
than enlighten their readers," said 
Judge Carol Bagley Amon, chair of 
the Committee on Codes of Conduct. 
"The committee wants judges and 
judicial employees to maintain the 
highest ethical standards, so it is 
extremely important that accurate, 
up-to-date guidance be provided." 

More than a dozen of the old 
advisory opinions were withdrawn. 
The remaining opinions were 
updated or revised to reflect current 



Final Report continued from page 1 

regionally based adjudicative 
divisions. Each regional division 
should have 7 to 1 1 judges, a major- 
ity of whom reside in its region. 
Each division should have exclusive 
urisdiction over appeals from 
udicial districts within its region 
jnd should perform en banc func- 
ions as if it were a court of appeals. 
■k> that federal law does not vary 
: rom division to division, conflicting 
decisions by regional divisions 
should be resolved by a "Circuit 
Division" of 13 judges — the chief 
udge of the circuit plus 12 other 
ictive circuit judges representing the 
•egional divisions. 
I Because circuit splitting is not 
easible to accommodate caseload 
growth in the federal appellate 
:ourts, Congress should authorize, 
)ut not require, any court of appeals 

organize into smaller adjudicative 
livisions when it exceeds 15 judge- 
ihips. 

1 Congress should authorize, but 
lot require, each court of appeals to 
lecide some types of cases using 



panels of two rather than three 
judges. 

■ Congress should authorize, but 
not require, circuit judicial councils 
to establish district court appellate 
panels and to designate types of 
appeals to be taken to such panels. 
These appeals would be decided by 
panels of two district judges and one 
circuit judge, with any further 
appellate review only by leave of the 
court of appeals. 

■ Congress should forgo any 
changes in the bankruptcy appellate 
structure until the Judicial Confer- 
ence of the United States completes 
its study of this matter and submits a 
report to Congress. 

Two members of the Commission 
wrote separately to present a pro- 
posal to reduce diversity of citizen- 
ship jurisdiction in the federal 
courts. 

The Commission conducted six 
public hearings and received more 
than 90 written comments before 
preparing its draft report, and 
received nearly 80 written comments 
on the draft report it issued on 



codes, concepts, and laws. A few 
overlapping opinions were consoli- 
dated. For example, the old advisory 
opinion on law clerks' bonuses 
contained majority and minority 
views that may have been confusing. 
The opinion was rewritten to stream- 
line and clarify the advice. In another 
example, two opinions covering 
extrajudicial compensation and 
honoraria were combined. 

In response to confidential inquir- 
ies from judges and judicial employ- 
ees, the Committee on Codes of 
Conduct provides confidential 
advisory opinions on the application 
of the Code of Conduct for U.S. Judges 
and other judicial branch codes of 
conduct. The committee also pub- 
lishes opinions on selected issues 
and recommends modifications of 
the various codes of conduct to the 
Judicial Conference. £>^ 



October 7, 1998. All comments have 
been posted on the Commission's 
website. 

In addition to making its report 
available on its Internet site, the 
Commission has, pursuant to statute, 
delivered a copy to the President of 
the United States, the President of 
the Senate, and the Speaker of the 
House of Representatives. Copies 
will also be distributed to, among 
others, all who submitted comments 
to the Commission in the course of 
its deliberations. The Commission 
will publish its working papers and 
close its office by March 19, 1999. 

In addition to Justice White, 
members of the Commission are 
Vice-chair N. Lee Cooper, a Birming- 
ham lawyer and past president of the 
American Bar Association, Judge 
Gilbert Merritt, who has been a 
member of the Court of Appeals for 
the Sixth Circuit since 1977; Judge 
Pamela Ann Rymer, who has been a 
member of the Court of Appeals for 
the Ninth Circuit since 1989, and 
Judge William D. Browning, who has 
served on the District Court for the 
District of Arizona since 1984. £*. 



The Third Branch 



December 1998 






Grants Increase Public Access to Court Records 



In fiscal year 1998, five districts 
received grants for projects that will 
increase public access to electronic 
court records. The grants were 
supplied through a research and 
development grants program 
guided by the Electronic Public 
Access (EPA) Working Group. 
The initiative is part of the Adminis- 
trative Office's efforts to promote 
innovative, locally developed 
technology applications in the 
courts. In evaluating requests for 
EPA grants, the EPA Working 
Group looks for, among other 
criteria, court programs that 
address major problems, use 
technology in innovative ways, 
improve public access to court 
information, and offer the greatest 



possibility for national application. 
The EPA Working Group, an ad hoc 
advisory group whose members are 
drawn from the courts, provides 
advice to the AO on issues concerning 
public access to electronic court 
records and develops recommenda- 
tions to the Judicial Conference on 
such matters. 

The following courts received EPA 
program grants in FY98. Here is how 
they plan to use the funds. 

District ot Wyoming, District Court 

According to Systems Analyst 
Elizabeth Conley, the District of 
Wyoming came up with the idea of a 
public access to historical court 
records system because finding 
records is a time-consuming and 



i" 

i El 
i i 



Judicial Vacancies & Confirmations in the 105* Congress 



During the second session of the 
105 th Congress, the Senate con- 
firmed 65 federal judges: 13 circuit 
judges, two to the Court of Interna- 
tional Trade, and 50 district courts 
judges. This brought the number of 
judges confirmed in both sessions 
of the 105 th 
Congress to a 
total of 101, 
compared to 
the 75 judges 
confirmed in 
the 104 th 
Congress. As 
he completes 
six years in 
office, Presi- 
dent Clinton 
has seen the 
Senate 

confirm 305 of 
the judges he 
nominated. By 
comparison, 



Vacancies and Confirmations of Article III 


Appellate and District Judgeships 


120 


D Circuit vacancies 






□ Circuit confirmations 


100 




B District - vacancies 
■ District - confirmations 


80 






Number 

o 








40 








20 








W CO ^f LO CO I s - 00 
O) O) O) 0)0)0)0 
O) O) O) O) O) O) O) 


Year 



President Reagan, another two-term 
president, in eight years appointed a 
total of 389 judges, confirmed 
between 1981 and 1988. 

As of December 1, 1998, there 
were 55 vacancies, 16 in the courts of 
appeals, 38 in the district courts, and 
one on the Court 
of International 
Trade. There are 
no nominations 
pending because 
all nominations 
are returned to 
the White House 
at the end of a 
Congress, and 
there will be no 
opportunity to 
reduce the 
number of 
vacancies until 
the 106 th Con- 
gress begins next 
year. #^ 



inefficient task. The public might 
have to search microfiche, card, and 
computer files just to locate a 
record. Then staff had to pull books 
to produce the actual docket and 
make copies. The court's EPA grant 
will make all docket sheets avail- 
able electronically. The old docket 
sheets will be scanned and inter- 
faced with the court's locally 
developed party/case index. This 
also will give access to docket 
sheets, for the first time, to the 
Casper, Wyoming, office where one 
of the three Wyoming district court 
judges sits. 

District of South Carolina, Bankruptcy and 
District Courts 

Public access to the clerk's 
office in the district court for the 
District of South Carolina was 
up a flight of stairs — not the 
most convenient location for sight- 
impaired visitors or visitors in 
wheelchairs, who had to take a 
circuitous route for access. The 
district has proposed a public 
access kiosk in the main office of 
each court to accommodate the 
public, the bar, and court personnel, 
including those with visual and 
hearing impairments. With such 
user-friendly technology as touch 
screen monitors, Braille keyboards 
and voice recognition commands, 
the kiosk will be a gateway to court 
information for both the district and 
bankruptcy courts. 

District ot New Mexico, District Court 

Over 50 court forms will 
soon be on the Internet in the 
District of New Mexico where 
law clerks, attorneys, law firms 
or chambers staff can fill them 
out electronically and send them 
in. According to Robert March, 
clerk of court for the District of 
New Mexico, anyone who wants 



The I hird liratwh 



Decemba 1998 



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o file a form or request information 
vill be able to find it on the court's 
veb site. That will save time and 
egwork for the public, and a lot of 
[uestions for court staff. Internet 
ccess will allow rapid updating of 
orms and cut down on printing 
nd inventory. The development 
rould include the production of 
lank forms as well as templates, 
hat can be used to complete the 
:>rms. And while the forms will 
e accessible from any personal 
omputer, the system also will be 
vailable at public access terminals 
within the court for members of the 
ublic who do not have Internet 
ccess. 

estern District of New York, District Court 

Chief Deputy Clerk Jeanne 
pampata, in the Western District 
f New York, was researching 
er family tree not long ago, a 
isk that involved searching 



through nearly 50,000 naturali- 
zation cards by hand. Convinced 
there had to be an easier way, she 
proposed the development of an 
automated naturalization informa- 
tion system for her district. The 
court plans to use the EPA grant to 
develop an indexed database 
application which will include 
images of the original naturalization 
records, in some cases right down to 
the signature of the applicant, from 
the years 1926 through 1991. The 
information, according to Spampata, 
will be put on CD-ROMs and given 
to public libraries, where the public 
can easily search and review 
naturalization information. The 
development of this system will 
save the court approximately 20 
hours per month of deputy clerk's 
time. The district hopes to have the 
project completed in time to cel- 
ebrate its 100 th anniversary in the 
year 2000. 



District ot Puerto Rico, District Court 

The District of Puerto Rico pro- 
posal is to develop a PC-based 
electronic calendar system where 
users are able to access proceeding 
information on their own by receiv- 
ing electronic notification or by 
accessing a device that will provide 
them with such information. This 
will replace the hard copy calendar. 
Meeting this objective will ensure 
that the needs of the public, mem- 
bers of the bar, federal agencies, and 
the clerk's office will continue to be 
met in a more timely and up-to-date 
manner. It will provide hard-copy 
document information, automati- 
cally, 24 hours a day, seven days a 
week, to a caller equipped with a 
touch-tone phone or any GROUP III 
facsimile machine. Also, TV monitors 
will be placed in the courthouse to 
provide daily up-to-date information 
on the locations of the proceedings 
for the day. £L 



ncrease in Bankruptcy Filings Slows in Fiscal Year 1998 



Bankruptcy filings in fiscal year 
)98, the 12-month period ending 
?ptember 30, totaled 1,436,964, as 
lings once again topped the one 
illion mark. While the filings 
r FY98 were a 5 
?rcent increase 
/er the same 
>cal year period 

1997, this 
•owth was less 
an the 23 
?rcent increase 

FY97 and the 26 
?rcent increase 
FY96. Bank- 
ptcy filings first 
ceeded one 
illion in the 12- 
onth period 
iding June 30, 
96. 



Filings for the 12-month period 
may have increased, but filings 
for the final quarter of the fiscal 
year dipped slightly when compared 



Business and Non-Business Filings 



to the third quarter. This was due 
to a smaller number of business 
bankruptcy filings. Most bank- 
ruptcy filings are non-business or 
personal filings. This drop 
may be due to 



FY 1994-98 



FY 


Business 


Non-Business 


Total 


1998 


47,125 


1,389,839 


1,436,964 




1997 


54,252 


1,313,112 


1,367,364 




1996 


53,520 


1,058,444 


1,111,964 




1995 


51,042 


832,415 


883,457 




1994 


54,425 


783,372 


837,797 



the seasonal 
nature of bank- 
ruptcy filings; 
filings in the final 
quarter of the 
fiscal year are 
typically lower 
than the third 
quarter totals. 

For information 
on bankruptcies 
by chapter and 
district, visit the 
Judiciary's website 
at http://www. 
uscourts.gov. £^ 



The Third Branch m December 1998 



i! 



JUDICIAL MILESTONES 



Appointed: Robert B. King, as U.S. 
Court of Appeals Judge for the Fourth 
Circuit, October 23. 

Appointed: Sonia Sotomayor, as U.S. 
Court of Appeals Judge for the Second 
Circuit, October 13. 

Appointed: William B. Traxler, as U.S. 
Court of Appeals Judge for the Fourth 
Circuit, October 21 . 

Appointed: H. Dean Buttram, Jr., as U.S. 
District Judge for the Northern District of 
Alabama, November 12. 

Appointed: Donovan W. Frank, as U.S. 
District Judge for the District of Minne- 
sota, November 2. 

Appointed: David R. Herndon, as U.S. 
District Judge for the Southern District of 
Illinois, November 16. 

Appointed: Robert G. James, as U.S. 
District Judge for the Western District of 
Louisiana, October 31. 

Appointed: Inge Prytz Johnson, as U.S. 
District Judge for the Northern District of 
Alabama, October 23. 

Appointed: Yvette Kane, as U.S. District 
Judge for the Middle District of Pennsyl- 
vania, October 27. 

Appointed: Colleen McMahon, as U.S. 
District Judge for the Southern District of 
New York, October 26. 

Appointed: James M. Munley, as U.S. 

District Judge for the Middle District of 
Pennsylvania, October 26. 

Appointed: Rebecca R. Pallmeyer, as 

U.S. District Judge for the Northern 
District of Illinois, October 26. 

Appointed: William H. Pauley, HI, as 

U.S. District Judge for the Southern 
District of New York, October 28. 

Appointed: Patricia A. Seitz, as U.S. 
Judge for the Southern District of Florida, 
November 16. 

Appointed: Thomas J. Whelan, as U.S. 
District Judge for the Southern District of 
California, November 5. 

Appointed: Francis M. Allegra, as Judge 
for the U.S. Court of Federal Claims, 
October 16. 

Appointed: Lawrence M. Baskir, as 

Judge for the U.S. Court of Federal 
Claims, October 23. 



Appointed: Lynn Jeanne Bush, as Judge 
for the U.S. Court of Federal Claims, 
October 26. 

Appointed: Emily C. Hewitt, as Judge 
for the U.S. Court of Federal Claims, 
November 10. 

Appointed: Bill G. Parker, as U.S. 
Bankruptcy Judge for the Eastern District 
of Texas, October 30. 

Appointed: Thomas M. DiGirolamo, as 

U.S. Magistrate Judge for the District of 
Maryland, September 18. 

Appointed: Janet F. King, as U.S. 
Magistrate Judge for the Northern 
District of Georgia, October 20. 

Appointed: Sidney I. Schenkier, as U.S. 
Magistrate Judge for the Northern 
District of Illinois, October 30. 

Elevated: Judge Joe Billy McDade, to 

Chief Judge, U.S. District Court for the 
Central District of Illinois, succeeding 
Judge Michael M. Mihm, November 19. 

Senior Status: Court of Appeals Judge 
Betty B. Fletcher, U.S. Court of Appeals 
for the Ninth Circuit, November 1 . 

Senior Status: Judge Thelton E. 
Henderson, U.S. District Court for the 
Northern District of California, Novem- 
ber 28. 

Senior Status: Judge John V. Parker, 

U.S. District Court for the Middle 
District of Louisiana, October 31. 

Retired: Bankruptcy Judge John D. 
Schwartz, U.S. Bankruptcy Court for the 
Northern District of Illinois, November 1 . 

Resigned: Magistrate Judge Leonard 
Bernikow, U.S. District Court for the 
Southern District of New York, Novem- 
ber 2. 

Resigned: Magistrate Judge Rebecca R. 
Pallmeyer, U.S. District Court for the 
Northern District of Illinois, October 25. 

Deceased: Senior Court of Appeals 
Judge Anthony J. Celebrezze, U.S. 
Court of Appeals for the Sixth Circuit, 
October 29. 

Deceased: Court of Appeals Judge John 
D. Kelly, U.S. Court of Appeals for the 
Eighth Circuit, October 21. 

Deceased: Senior Judge Lee P. 
Gagliardi, U.S. District Court for the 
Southern District of New York, October 30. 



THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S ' 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



JUDICIAL BOXSCORE 

As of December 1,1998 



Courts of Appeals 




Vacancies 


16 


Nominees 





District Courts 




Vacancies 


38 


Nominees 






Court of International Trade 
Vacancies 
Nominees 

Courts with 

"Judicial Emergencies" 



24 



For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The llnrd Branch 






Search Begins for New Federal Judicial Center Director 



The Board of the Federal Judicial 
Center has begun its search for a 
successor to Judge Rya W. Zobel, 
who has announced that she will 
return to the District of Massachu- 
setts in July 1999. Zobel has served 
as Director of the Center since 1995. 
A search committee appointed by 
the Chief Justice will make recom- 
mendations to the Board. Chief 
fudge Marvin E. Aspen (N.D. 111.) 
:hairs the committee. Other mem- 
bers are Judge Bruce M. Selya (1 st 
3r.) and Judge Michael A. Telesca 
;w.d. N.Y.). 

The Center's statutory functions 
nclude 

| Conducting research and analysis 
ibout federal court administration, 
rase management, sentencing, and 
he litigation process, primarily for 
:ommittees of the Judicial Confer- 
ence. 

| Providing orientation and 
:ontinuing education for judges 
ind court employees, through 
;eminars and workshops, edu- 
ction publications, satellite broad- 
:asts, and multi-media programs. 
I Fostering judicial federalism, 
nternational judicial education, and 
nreservation of federal court 
listory. 

The Center has a staff of 145 and 



a fiscal 1999 appropriation of 
$17,716,000. 

The Board expects the director to 
relocate to the Washington, D.C., 
area and commit to a term of at least 
four years, with the expectation that 
the tenure will not exceed seven 
years. There are no other mandatory 
criteria, although the Board has 
asked the committee to consider, 
among other things, applicants' 
personal, management, and leader- 
ship skills and qualifications in the 
fields of education and research, 
including scholarship. Substantial 
familiarity with the federal courts 
and their operations is important. 
The Board has specified that at least 
one of the names 
recommended to 
it by the search 
committee be that 
of a federal judge, 
but it also seeks 
applications from 
nonjudges with 
the listed qualities. 

All interested 
persons should 
contact the 
committee by 
letter (in tripli- 
cate) expressing 
interest in the 



position and enclosing a resume. 

28 U.S.C. § 133(b) provides that if 
an active federal judge becomes 
Center director, the President shall 
appoint an additional judge for the 
director's court, although if the 
director returns to the court as an 
active judge, the next vacancy will go 
unfilled. 

All expressions of interest should 
be sent to Chief Judge Aspen, 
preferably by February 7, 1999, at the 
U.S. District Court, Everett McKinley 
Dirksen Building, 219 South 
Dearborn Street, Chicago, Illinois 
60604. 

The committee expects to submit 
its recommendations to the Board in 
late March and the Board expects to 
select the next director in April. ^^ 



Nominations Open for 1998 Devitt Award 

Nominations for the 17 th annual Edward J. Devitt 
Distinguished Service to Justice Award are open. The 
award, named for the late Judge Edward J. Devitt (D. 
Minn.), recognizes the dedicated public service of 
members of the federal Judiciary. All Article III 
federal judges are eligible for nomination. Entries 
should describe the nominee's accomplishments and 
professional activities that have contributed to the 
cause of justice. Any interested person or organiza- 
tion may submit a nomination by January 15, 1999, to 
Devitt Distinguished Service to Justice Award, 180 
North Michigan Avenue, Suite 600, Chicago, IL. 
60601-7401. $. 



members Deserve Pay Raise, Livingston Says 



Shortly after his election as House 
>peaker, Representative Bob 
.ivingston (R-LA) appeared on the 
JBC news show Meet the Press. 
Unong the questions fielded by the 
iew Speaker was one on the timeli- 
iess of a congressional pay raise, 
lere's his response. 

"Well, we've not had a cost-of- 
iving adjustment in the last year. We 
iad one the previous year. I think 
bat when you compare to all the 



cost-of-living adjustments for both 
military and civilian employees, 
you'll see that the members of 
Congress have gotten a lot fewer 
cost-of-living adjustments. I'm not 
against giving members of Congress 
a cost-of-living adjustment." 

When asked if he would push for 
a pay raise bill, Livingston replied: 

"I haven't made up my mind 
whether I'll push for it, but I think 
that the members, frankly, deserve 



it. One thing I'd like to say about 
that is that Republican and Democrat 
alike, members of Congress are hard- 
working people. I realize they get a 
bad rap in the media, and at election 
time, frankly, we're all targets for 
political reasons. But every single 
member represents about 600,000 
people back home, and they work 
hard to represent those people. If 
they don't work hard, they're tossed 
out, and rightfully so. I think that, 
frankly, periodically, it's not unrea- 
sonable that they should be entitled 
to a pay raise." £«^ 



The Third Branch 



December 1998 



ir 



Interview continued from page 1 

admirable, are simply not suffi- 
ciently consistent, comprehensive, 
and authoritative to protect victims' 
rights adequately. Moreover, the 
rights created by the various state 
statutes and constitutional provi- 
sions provide no minimum baseline 
of protections for victims and instead 
have developed into a patchwork of 
rights, often different in scope and 
effectiveness from jurisdiction to 
jurisdiction. 

The Attorney General has stressed 
the need to craft a Victims' Rights 
Amendment that preserves the 
fundamental protections of those 
accused of crimes. While conflicts 
between victims' rights and the 
protections accorded defendants by 
the Bill of Rights and the Fourteenth 
Amendment likely would be rare, 
the Attorney General has said that in 
those rare instances "we must as a 
society ensure that a fair trial is not 
jeopardized." The Victims' Rights 
Amendment accordingly should 
include "express language stating 
clearly that the rights the amend- 
ment creates shall not be applied in a 
manner that violates those irreduc- 
ible rights to which a criminal 
defendant is constitutionally en- 
titled." 

Q. The Judicial Conference 
• also has questioned the 
federalization of state crimes, for 
example the prosecution of hate 
crimes in federal courts, contending 
these offenses are already adequately 
prosecuted in state courts, and that 
these and other prosecutions 
threaten to overwhelm the federal 
courts. Would DOJ like to see more 
state crimes brought into federal 
courts? And why? 



A 



# Clearly there are many 

• crimes that are traditionally 



INTERVIEW 



best addressed by state and local law 
enforcement. However, even where 
state and local law enforcement take 
the lead in combating these crimes, 
federal resources may lend critical 
support to their efforts by providing 
leadership and investigative and 
prosecutive coordination. And, in 
some circumstances, the nature of 
the criminal conduct demands that 
federal authorities have primary 
responsibility for addressing the 
problem. For example, state and 
local law enforcement have neither 
the resources nor the authority to 
combat all aspects of the offenses 
committed during the multidistrict 
trafficking in drugs, weapons, or 
aliens. Further, small jurisdictions on 
occasion have become overwhelmed 
by crime largely local in nature and 
have solicited federal help in hand- 
ling the problem. 

We are sensitive to the concerns 
expressed by the Judiciary that the 
federalization of crimes not be 
allowed to overwhelm the federal 
court system. In the area of hate 
crimes, for instance, state and local 
law enforcement agencies continue 
to play the primary role in the 
investigation and prosecution of all 
types of hate crimes. The federal 
government prosecutes only a 
limited number of such cases. We 
predict that the enactment of a 
proposal like the Hate Crimes 
Prevention Act of 1998, which was 
under consideration by the Congress 
during its last session, would result 
in only a modest increase in the 
number of hate crimes prosecutions 
brought each year by the federal 
government. 



Q # There has been much 
• criticism of Congress and the 
White House over the slow pace of 
judicial nominations and confirma- 
tions. DOJ reviews all nominations. 




Deputy Attorney General Eric H. Holder, Jr. 



Has this process contributed to the 
slow pace? 

A # The Justice Department 
• has a quick review that is an 
essential step in the screening 
process for judicial nominations. The 
DOJ receives the names of individu- 
als who are potential nominees to the 
federal bench. The DOJ immediately 
reviews the candidate's credentials 
and qualifications, interviews the 
candidate in person, and makes 
inquiries of the legal community in 
which the candidate works. 

Following successful completion 
of this process, the FBI conducts a 
full-field background investigation, 
which usually takes between four 
and six weeks. The American Bar 
Association also conducts an inde- 
pendent evaluation during this same 
period. If the candidate is deter- 
mined to be qualified on the basis of 
these reviews, the Attorney General 
then recommends nomination by the 
President. 

Since the conclusion of the 105 th 
Congress last month, the DOJ and 
the Administration have continued 
to work to review potential nominees j 



10 



The Third Branch m December 1998 



: or the pending circuit and district 
:ourt vacancies. The executive branch 
ntends to continue to prepare as 
nany candidates as possible for 
nomination in January 1999, so that 
ve can continue our work with the 
Senate to fill vacancies and to 
?rovide federal litigants with a full 
>ench of excellent judges. We hope 
hat the progress we enjoyed during 
he second session of the 105 th 
longress will continue when the 
06 th Congress convenes in January. 



2. The Judicial Conference's 
• Subcommittee on Federal 
)eath Penalty Cases recently pro- 
luced a report on the cost, availabil- 
ty and quality of defense representa- 
ion in federal death penalty cases, 
"he report found that the average 
ost of defense representation is 
easonable, while recommending 
/ays to reduce costs. How does DOJ 
iew prosecution costs? 

A # As we gain more experi- 
-~~V • ence in prosecuting capital 
ases, the cost of prosecution will 
kely decline. That experience, thus 
ir, has led us to devote a substantial 
mount of time and effort to evaluat- 
ig and improving the manner in 
fhich capital cases are handled by 
?deral prosecutors. 

In February of this year, we 
wited all assistant U.S. attorneys 
\USAs) who have prosecuted 
ipital cases to come to Washington 
>r a two-day meeting to exchange 
leas and suggestions on more 
fficient and effective ways to handle 
lese cases. 

We have established a unit within 
le Criminal Division dedicated to 
le review of U.S. attorneys' indict- 
tents and submissions on capital 
efendants. This unit will staff the 
mior DOJ officials who serve on the 
apital Cases Review Committee 
id will provide advice, as well as 
tigation support, to AUSAs han- 
ling these cases. In addition, we 



have established a resource center 
that includes both electronic and 
hard copy collections of briefs, 
motions, and responses to motions 
on all capital punishment constitu- 
tional issues. This resource center is 
available to all AUSAs prosecuting 
capital cases and can significantly 
aid them by reducing the amount of 
time devoted to research. 



Q # As you know, Congress 
• has passed legislation to give 
Executive Schedule employees, 
members of Congress, and federal 
judges only a single cost-of-living 
adjustment since 1993. Since DOJ has 
an interest in recruiting the best 
qualified nominees and for retaining 
judges on the bench, will DOJ urge 
the administration to support 
COL As or pay increases in 1999? 

A # The Congress adjourned 
• for the year without provid- 
ing for any kind of a pay increase for 
the Judiciary in fiscal year 1999. We 
do support a cost-of-living adjust- 
ment for the Judiciary and are 
hopeful that authority to fund such 
an increase will be included in the 
fiscal year 2000 appropriations. 



Q. The Judicial Conference 
• has urged that U.S. trustees 
be removed from the political 
appointment process and placed in 
an independent agency. How would 
DOJ view such a change? 

A # The Department of Justice 
• has taken a position strongly 
opposing any proposal to take the 
U.S. Trustee Program out of the DOJ. 
Being a part of the DOJ gives the 
trustee program litigators credibility 
and facilitates their relationship with 
other DOJ components such as the 
U.S. attorneys, the litigating divi- 
sions, the FBI, and the Inspector 
General. Not only do these and other 
DOJ units play an important part in 



helping the program carry out its 
mandate, but access to them is a 
major cost saving to the program. In 
addition, the recruitment of top 
flight U.S. Trustees, managers, 
lawyers, and accountants has been 
greatly aided because they are an 
agency within the DOJ. Efforts to 
convince the Congress of both the 
substantive positions on bankruptcy 
matters and the validity of the 
program's appropriations requests 
also have been reinforced by their 
support by the DOJ. 

In addition, the DOJ disagrees that 
the U.S. Trustees should be removed 
from the political appointment pro- 
cess. The selection of U.S. Trustees 
was patterned after the process used 
for selecting U.S. attorneys, U.S. 
marshals, and federal judges. 
Appointment by the Attorney 
General has added stature to the U.S. 
Trustee position and brought highly 
qualified bankruptcy practitioners to 
the program. 



Q. In some cases, the 
• Judiciary must provide 
public defenders for criminal defen- 
dants whose assets have been seized 
by DOJ. Would DOJ support funding 
of public defender attorneys from 
the Asset Forfeiture Fund (AFF)? 

A. The DOJ strongly sup- 
• ports appropriate funding 
levels for public defenders. We 
supported the efforts of the Adminis- 
trative Office to remove the Nickles 
amendment from the 1999 appro- 
priations act which would have put a 
ceiling on monthly compensation for 
CJA-appointed attorneys to make 
such compensation equivalent to the 
monthly salary paid to U.S. attor- 
neys. In addition, we have supported 
efforts by the Administrative Office 
and others to raise the awareness on 
Capitol Hill about the need to fully 
fund the defense side of the criminal 
justice system. 

See Interview on page 12 



u , 



" t 



11 



The Third Branch 



December 1998 



.; 
1 1 



■ :■ 



Interview continued from page 11 

However, we do not believe 
that it is appropriate to finance the 
CJA program through the AFF. 
While there are instances of the 
Judiciary having to appoint a public 
defender to defend a defendant 
whose assets have been seized, the 
greatly expanding costs of the CJA 
program cannot be tied to the assets 
forfeiture program. We believe that it 
makes more sense to work toward 
educating the Congress about the 
need for adequate funding for 
criminal defense and leaving the AFF 
for the purposes that it was intended 
to be used. 



Q # Hidden in the Omnibus 
• Appropriations Act is a 
provision that would require federal 
prosecutors to comply with state 
laws and rules governing attorneys 
in states where the attorney engages 
in his or her duties. Won't this 
provision make multi-state investiga- 
tions difficult? 



A. The provision will seriously 
• interfere with the work of 
prosecutors to enforce federal law, 
and we are urging Congress to 
amend or repeal it before it takes 
effect in April. The provision effec- 
tively cedes authority over the con- 
duct of federal attorneys to states and 
state bars, and in so doing, it may 
allow states and state bar authorities 
to control how federal law is en- 
forced in those states. State bar 
authorities pass rules that not only 
impact ethical conduct by attorneys, 
but also attempt to regulate the steps 
that prosecutors and agents may 
take in investigating crime. State 
bars have established rules, for 
example, limiting whether investiga- 
tors supervised by prosecutors may 
speak with corporate whistle- 
blowers, and controlling how 
prosecutors may investigate witness 
tampering and obstruction of justice. 
Ceding such authority in these areas 
to state bars would seriously under- 
mine federal law enforcement. 

In addition, by requiring federal 
prosecutors to comply with a web of 



conflicting rules in all 50 states, the 
provision will make it far more dif- 
ficult to conduct a single, coordinated 
nationwide or multi-state investiga- 
tion of criminal conduct. Recently we 
have successfully prosecuted such 
multi-state cases as the Oklahoma 
City bombing, a number of drug 
cartel conspiracies, and 
telemarketing fraud conspiracies. 
The new provision could frustrate 
the prosecution of crimes that are of 
the same magnitude as these cases. 



Q: 

rules? 



Shouldn't federal prosecu- 
tors be governed by ethics 



A. Federal prosecutors already 
• have strict, effective ethics 
rules. They are governed by ethics 
rules in the states where they are 
licensed, in the federal courts where 
they practice, and by federal regula- 
tion. The provision in the omnibus 
act would not make prosecutors 
more ethical; it would only burden 
prosecutors and delay justice. 



THE THIRD BRANCH 

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t 



THE 



THIRD 



03 






SRANCH 



Newsletter 
of the 
Federal 
Courts 



Vol. 31 
Number 1 




January 1999 SpBClal \W& 



V&?° 



qv*' 



he 1998 Year-End Report of the Federal Jodiciary 



Overview 



The federal Judiciary enters the 
ist year of the 20 th century immersed 
i many of the same struggles that 
ave defined our federal system of 
overnment for 210 years. The ad- 
linistration of justice is affected not 
rdy by the relationships among the 
idiciary and the other two branches 
E the federal government, but also 
v the balance of power between the 
deral and state governments. In 
as, my 13 th Year-End Report, I will 
idress several of the problems 
fecting the Judiciary in 1998. 

I am pleased to report on the 
-ogress made in 1998 by the Senate 
id the President in the appointment 
\d confirmation of judges to the 
deral bench — a need that I raised in 
y 1997 Report as one for which 
)th the Executive and Legislative 
■anches bore responsibility. The 
■nate confirmed 65 judicial nomi- 
?es in 1998, a figure that is above 
e average number of judges 
)minated and confirmed in recent 
iars. These appointments will help 
Idress the disparity between the 
'Urts' workload and their resources. 
Jso note my gratitude to senior 
deral judges who, despite their 
mi-retired status, continue to help 
se backlogs in courts around the 
untry. 



I also extend my thanks to Con- 
gress for continuing to provide 
adequate financial support to the 
Judiciary as we work together to 
maintain a balanced budget. The 
Judiciary remains committed to 
fiscal responsibility, and for its 
part, requested the smallest percent- 
age funding increase in 20 years 
for fiscal year 1999, even as it faces 
a growing caseload. The Third 
Branch is particularly appreciative of 
the appropriation for the construc- 
tion of 13 new or expanded court- 
house facilities for fiscal year 1999. 
The new courthouses will replace 
aging and obsolete facilities and are 
much needed to alleviate over- 
crowded conditions and reduce 
security risks. 

Appointments, Jurisdiction, and Salaries 

Although the Judiciary is 
strengthened by the progress made 
on important issues in 1998, serious 
problems continue to confront us. 
The most pressing of those problems 
are not new, but they have grown in 
importance either from the neglect or 
ambivalence of the other branches of 
government. They are: (1) the failure 
to appoint any Commissioners to the 
United States Sentencing Commis- 
sion — all seven Commissioner 
positions are vacant; (2) the growing 
caseload in the federal Judiciary 



resulting from continued expansion 
of federal jurisdiction; and (3) the 
continuing relative decline in judicial 
salaries. There are, of course, many 
challenges facing the Judiciary. I 
focus primarily on these three 
problems, however, because they 
need immediate attention. All three 
are soluble. 



Appointments to the United States 
Sentencing Commission 

The political impasse on the 
appointments to the United States 
Sentencing Commission, which has 
been problematic for the past few 
years, has now reached stunning 
proportions. There currently are no 
Commissioners at the Sentencing 
Commission and no nominations are 
pending. The failure to fill these 
vacancies is all the more egregious 
when one considers the fact that the 
seven Commissioners authorized by 
statute have staggered six-year 
terms, and that there are additional 
statutory constraints to insure a 
bipartisan Commission. For ex- 
ample, at least three of the Commis- 
sioners must be federal judges, and 
no more than four can be members 
of the same political party. The fact 
that no appointments have been 
made to fill any one of these seven 

see Report on page 2 



i:; 

i i: 

I 



vacancies is paralyzing a critical 
component of the federal criminal 
justice system. 

The Sentencing Commission was 
created under the Sentencing Reform 
Act provisions of the Comprehensive 
Crime Control Act of 1984. Its 
principal purposes are to reduce 
disparity in sentencing in the federal 
courts; to establish sentencing 
policies and practices for the federal 
courts, including guidelines prescrib- 
ing the appropriate form and 
severity of punishment for 
offenders convicted of 
federal crimes; to advise and 
assist Congress and the 
Executive Branch in the 
development of effective and 
efficient crime policy; and to 
collect, analyze, research, 
and distribute a broad array 
of information on federal 
crime and sentencing issues, 
serving as an information 
resource for Congress, the 
Executive Branch, the courts, 
criminal justice practitioners, 
the academic community, 
and the public. 

Although the staff of the 
Commission has been able to 
carry on the Commission's 
routine functions, in its 
present state the Commission 
is unable to perform some of 
its core and crucial responsi- 
bilities. For example, there 
are no Commissioners to propose 
guideline amendments or to take 
action on Congressional directives or 
implement legislation. There are no 
Commissioners to resolve or address 
circuit conflicts in Sentencing Guide- 
lines interpretations. Every commis- 
sion needs to make adjustments or 
respond to changing circumstances 
or new information. The Sentencing 
Commission is unable to do so until 
Commissioners are appointed. With 
criminal cases in federal courts 
reaching historic levels, the Judiciary 
needs a fully functioning Sentencing 
Commission. If we are going to have 



Sentencing Guidelines, the Sentenc- 
ing Commission must be empowered 
to do its work. The President and the 
Senate should give this situation 
their immediate attention. 



Caseload and Expanding Jurisdiction 

The number of cases brought to 
the federal courts is one of the most 
serious problems facing them today. 
Criminal case filings in federal courts 



!«*• 



"The trend to 
federalize crimes 
that traditionally, 
' ave been handled 
i state courts not 
only is taxing the 

iiciary's resources 
and affecting its 
budget needs, but it 
also threatens to 
change entirety the 
nature of our fede 
system. ' A 



rose 15% in 1998 — nearly tripling the 
5.2% increase in 1997. Over the last 
decade, Congress has contributed 
significantly to the rising caseload by 
continuing to federalize crimes 
already covered by state laws. A 
series of such laws have been enacted 
in the past few years, including, to 
name a few, the Anti-Car Theft Act 
of 1992, the Child Support Recovery 
Act of 1992, the Animal Enterprise 
Protection Act of 1992, and the recent 
arson provisions added to Title 18 in 
1994. In contrast, the effect that the 
Antiterrorism and Effective Death 
Penalty Act and the Prison Litigation 



Reform Act are having on hab< 
corpus proceedings and prisoners' 
actions continues to appear positive. 
The trend to federalize crimes that 
traditionally have been handled in 
state courts not only is taxing the 
Judiciary's resources and affecting its 
budget needs, but it also threatens to 
change entirely the nature of our 
federal system. The pressure in 
Congress to appear responsive to 
every highly publicized societal ill or 
sensational crime needs to be 
balanced with an inquiry into 
whether states are doing an 
adequate job in these particu- 
lar areas and, ultimately, 
whether we want most of our 
legal relationships decided at 
the national rather than local 
level. Federal courts were not 
created to adjudicate local 
crimes, no matter how 
sensational or heinous the 
crimes may be. State courts 
do, can, and should handle 
such problems. While there 
certainly are areas in crimi- 
nal law in which the federal 
government must act, the 
vast majority of localized 
criminal cases should be 
decided in the state courts 
which are equipped for such 
matters. This principle was 
enunciated by Abraham 
Lincoln in the 19 th century, 
and Dwight Eisenhower in 
the 20 th century — matters that can be 
handled adequately by the states 
should be left to them; matters that 
cannot be so handled should be 
undertaken by the federal govern- 
ment. 

Recently, the Commission on 
Structural Alternatives for the 
Federal Courts of Appeals, chaired 
by Retired Justice Byron R. White, 
noted that the structure and align- 
ment of the appellate courts is 
affected by the volume of appeals, 
which is in turn driven by the 
jurisdiction of the federal courts. The 
Commission said in its Final Report 



The Third Branch m January 1999 



hat "significant changes need to be 
lade in the jurisdiction of the 
?deral courts," and emphasized the 
nportance of "restraint in confer- 
ing new jurisdiction on the federal 
3urts, particularly in areas tradi- 
onally covered by state law and 
aved by state courts...." 

In 1995, the Judicial Conference of 
le United States, after much study, 
iopted the Proposed Long-Range 
\an for the Federal Courts for the next 
?ntury. Recommendation 1 of the 
mg-Range Plan reads as follows: 
Congress should commit itself to 
unserving the federal courts as a 
istinctive judicial forum of limited 
risdiction in our system of federal- 
m. Civil and criminal jurisdiction 
lould be assigned to the federal 
►urts only to further clearly defined 
id justified national interests, 
aving to the state courts the 
sponsibility for adjudicating all 
her matters." In accordance with 
is principle, the Long-Range Plan 
commends that federal courts 
ould only have criminal jurisdic- 
>n in five types of cases: 

) offenses against the federal 
government or its inherent 
interests; 

I criminal activity with substantial 
multi-state or international 
aspects; 

i criminal activity involving 
complex commercial or institu- 
tional enterprises most effectively 
prosecuted using federal re- 
sources or expertise; 
serious high level or widespread 
state or local government corrup- 
tion; and 

criminal cases raising highly 
sensitive local issues. 

Although Congress need not 
low the recommendations of the 
licial Conference, this Long-Range 
n is based not simply on the 
?ference of federal judges, but on 
! traditional principle of federal- 
i that has guided the country 
oughout its existence. 



Similarly, Justice White and Judge 
Gilbert Merritt included a separate 
statement in the Final Report of the 
Commission on Structural Alterna- 
tives for the Federal Courts of 
Appeals that describes the core 
functions of federal courts, the role 
federal courts should appropriately 
have in criminal matters, and the 
factors that should be considered 
before assigning new responsibilities 
to the federal courts. Those factors 
include determining whether the 
proposed legislation would assign 
work to the federal system that is 
within its core functions; whether 
states are inadequately addressing 
the perceived need; whether the 
federal courts have the capacity to 
take on new business without 
additional resources or restructuring; 
and the extent to which proposed 
legislation is likely to affect the 
caseload, and in turn whether the 
federal courts have the capacity to 
perform their core functions and 
fulfill their mandate for "just, speedy, 
and inexpensive determination" of 
actions. Other factors include the 
cost of delay to litigants and whether 
the perceived needs are, or could be, 
served as well by alternatives such as 
alternative dispute resolution or 
administrative proceedings. 

Many others have written on how 
Congress might appropriately 
balance jurisdiction between state 
and federal courts. A common 
element of the recommended thresh- 
old standards for federal criminal 
legislation is remedying demon- 
strated state failure. Such an ap- 
proach would reduce the likelihood 
that a particularly high profile or 
egregious event would be enough on 
its own to justify new federal laws. 
Such an approach also is more 
consistent with judicial federalism 
and with Alexander Hamilton's 
observation in the Federalist No. 82 
that "the national and State systems 
are to be regarded as ONE WHOLE." 

A re-examination of diversity 
jurisdiction is also warranted. 



Diversity jurisdiction was originally 
enacted as part of the Judiciary Act 
of 1789 when there was reason to 
fear that out-of-state litigants might 
suffer prejudice at the hands of local 
state court judges and juries, and 
there was legitimate concern about 
the quality of state courts. Condi- 
tions have changed drastically in 
two centuries. At the very least, 
there simply is no need to allow in- 
state plaintiffs to avail themselves of 
diversity jurisdiction to remove 
matters to federal court. These 
lawsuits account for a substantial 
percentage of the federal caseload, 
and as state law is applied in such 
cases in any event, there is no good 
reason to keep them in federal court. 

I have requested Chairman 
Howard Coble of the Subcommittee 
on Courts and Intellectual Property 
of the House Judiciary Committee to 
conduct hearings in the next session 
of Congress on the issue of the 
general expansion of federal juris- 
diction caused by federalizing state 
crimes, and on curtailing federal 
diversity jurisdiction. Chairman 
Coble has demonstrated an interest 
in the federal courts' caseload and, 
in the most recently concluded 
session of Congress, sponsored the 
Alternative Dispute Resolution Act, 
which directs federal courts to 
provide alternatives to litigation in 
court and gives them flexibility in 
how to do so. 



Judicial Salaries 

For the fifth time in the past six 
years, Congress has denied federal 
judges, top officials in the Executive 
Branch, and its own members cost- 
of-living salary adjustments. Since 
January 1993, the value of the 
salaries for these positions has 
declined 16% when measured 
against the Consumer Price Index. 
The relative cumulative loss of 
purchasing power during this 
period for a federal district judge 
exceeds $77,000. 



.« , 



, i 



i r 



The Third Branch m January 1999 



i 1, 
i i: 



Federal judges, who have made a 
lifetime commitment to federal 
service, should not be required to 
bear these continuing financial 
penalties. The vast majority of career 
government employees and retirees 
receive inflation adjustments annu- 
ally. Career employees may also 
receive added locality pay adjust- 
ments. Denying cost-of-living 
adjustments to top officials is a 
regressive approach to compensa- 
tion and is counter-productive to the 
common sense goal of encouraging 
capable individuals to enter the 
Judiciary. The 1989 law providing 
for annual cost-of-living salary 
increases for these positions should 
be allowed to operate as intended. 

Panel Attorney Compensation 

Another issue of concern is the 
rate of pay that court-appointed 
attorneys receive to defend individu- 
als in criminal cases. By statute, the 
Judiciary bears the responsibility for 
ensuring that defendants in federal 
criminal cases receive legal represen- 
tation. If the defendant is unable to 
pay, the Judiciary must provide a 
lawyer to vindicate the defendant's 
rights. This responsibility is met 
through Federal Defender Offices, 
Community Defender Offices, and 
attorneys in private practice who are 
appointed by the court, generally 
referred to as "panel attorneys." 

Congress established maximum 
hourly rates of compensation for 
panel attorneys in 1964 with the 
passage of the Criminal Justice Act. 
Since the first adjustments to those 
rates in 1970, the maximums have 
fallen far behind inflationary effects. 
In 1986, Congress authorized the 
Judicial Conference to set higher 
maximum hourly rates of up to $75. 
Since then, the Judicial Conference 
has approved the higher rate in 93 of 
94 judicial districts upon a finding of 
demonstrated need. However, 
Congress has appropriated funds 
only sufficient to pay up to the $75 



rate in part or all of 16 districts. In 
other districts, because of a one-time 
authorized increase, panel attorneys 
may only be paid $65 for in-court 
work and $45 for out-of-court work. 
The Judiciary's budget request for 
fiscal year 2000 will include funds 
sufficient to pay all panel attorneys 
at the $75 rate. I respectfully urge 
Congress to give very serious 
consideration to this request. Inad- 
equate compensation for panel 
attorneys is seriously hampering the 
ability of judges to recruit attorneys 
to provide effective representation. 
The Judiciary, in turn, is taking steps 
to insure that defender services' 
costs are reasonable. 



Technological Advancements 

The federal Judiciary continues to 
progress toward the next century 
with the help of technological 
advancements. Installation of a 
nationwide data communications 
network in the Judiciary was com- 
pleted in October, one year ahead of 
schedule. More than 700 Judiciary 
sites and 28,000 Judiciary employees 
are now linked electronically by a 
secure internal electronic communi- 
cations network. Similarly, the Judi- 
ciary's Internet sites are increasingly 
used to disseminate publications, 
statistics, and other information 
about the federal Judiciary and its 
programs. Use of this technology is 
expected to generate savings of about 
$1 million annually in paper and 
postage costs. Judicial opinions are 
regularly posted on the Internet in 
many circuits, as are schedules, local 
rules, fee schedules, and job vacan- 
cies. Prototype electronic case files 
systems which could allow courts to 
receive, send, store, and retrieve 
case-related documents in electronic 
format also have been developed 
and are being tested in a number of 
district and bankruptcy courts. 

This year, the Administrative 
Office of the U.S. Courts completed a 
preliminary assessment of the use of 



courtroom technologies — video evi- 
dence presentation, videoconferen- 
cing, electronic methods of taking the 
record, and access to external 
databases — which confirmed that 
such technologies can, in many cases, 
reduce trial time and litigation costs, 
and improve fact-finding, jury 
understanding of evidence, and 
access to court proceedings. This 
year also, the Federal Judicial Center, 
along with the Administrative Office 
of the U.S. Courts and the U.S. 
Sentencing Commission, launched 
the Federal Judicial Television 
Network to provide some education 
and information to judges and staff 
throughout the country without the 
need for travel. 



Information Assistance to Foreign Judiciaries 

Representatives from judicial 
systems of countries from around the 
world who are engaged in reforming 
their systems continue to seek to learn 
more about our Judiciary. This year 
more than 500 representatives of 41 
foreign judiciary systems formally 
visited the Supreme Court of the 
United States alone seeking informa- 
tion about our system of justice. 
Information was provided on topics 
ranging from judicial independence 
to judicial review, the Rule of Law, 
and the work of the federal courts. 
The International Judicial Relations 
Committee of the Judicial Confer- 
ence also continues to play an impor- 
tant role in providing information 
and technical assistance to develop- 
ing judicial systems worldwide. 



Special Commissions 



Commission on Structural Alternatives 
for the Federal Courts oi Appeals 

In December 1997, pursuant to a 
law passed by Congress creating the 
Commission on Structural Alterna- 
tives for the Federal Courts of 
Appeals, I appointed Retired Justice 



4 



The Third Branch m January 1999 



Byron R. White; Judge Gilbert S. 
Merritt of the United States Court of 
Appeals for the Sixth Circuit; Judge 
Pamela Ann Rymer of the United 
States Court of Appeals for the Ninth 
Circuit; Judge William D. Browning 
of the United States District Court for 
Arizona; and N. Lee Cooper, former 
President of the American Bar 
Association, to serve as Commission- 
ers. The Commission elected Justice 
White as Chair and N. Lee Cooper as 
Vice Chair. The Commission was 
created to study the structure and 
alignment of the Federal Courts of 
Appeals, with particular reference to 
the Ninth Circuit. In less than nine 
months, the Commission held six 
public hearings across the country, 
took testimony from 89 witnesses, 
and, with the assistance of the 
Federal Judicial Center, conducted 
extensive research on structural 
alternatives, including surveys of all 
district and circuit judges and a large 
sample of appellate lawyers. The 
Administrative Office of the U.S. 
Courts also provided valuable 
assistance to the Commission. On 
December 18, 1998, the Commission 
filed a comprehensive Final Report 
with Congress and the President 
which contains a thorough analysis 
of both historical and contemporary 
information about the federal circuit 
system. The Commission's recom- 
mendations are thought-provoking 
and should serve as a useful guide to 
Congress and the Judiciary for years 
to come. I commend the Commission 
for its thorough work in such a short 
time. 

Additionally, in 1998 I appointed 
an Ad Hoc Committee of the Judicial 
Conference — chaired by Judge Wm. 
rerrell Hodges, and consisting of 
[udges William H. Barbour, Jr., 
Boyce F. Martin, Jr., Robert L. Miller, 
[r., and Stephanie Kulp Seymour — to 
>tudy certain aspects of the Federal 
fudicial Center's strategic plan as it 
related to the Administrative Office 
I the U.S. Courts. The Ad Hoc 
Committee recommended two 



motions to the Judicial Conference of 
the United States which more clearly 
define the judicial educational and 
training roles of the Federal Judicial 
Center and the Administrative Office 
of the U. S. Courts. Both motions 
were approved by the Judicial Confer- 
ence, and the Judiciary extends its 
gratitude to this Committee. 




The Federal Courts' Caseload 

For the first time in 26 years, 
criminal filings experienced a 
double-digit increase, growing by 15 
percent. In 1998, filings of criminal 
cases grew 15 percent to 57,691 cases. 
This means that, on average, each 
authorized federal judge handles 89 
criminal filings per year. Not since 
1972 have the criminal filings risen 
by double digits. That year, filings 
rose 14 percent, and the courts 
received more immigration cases 
than fraud cases. Twenty-six years 
later, immigration filings have once 
again exceeded the number of fraud 
filings, making immigration-related 
offenses the second most significant 
offense category after drug law 
violations. The increase in filings 
related to drugs and immigration 
occurred primarily along the south- 
western border districts, although 
drug-related filings rose or remained 
stable in more than 57 districts across 
the nation. Nationwide, immigration 
filings rose 40 percent to 9,339 cases, 
and drug filings rose 19 percent to 
16,281 cases. 

Filings in U.S. courts of appeals 
and U.S. bankruptcy courts also 
rose, by 3 percent and 5 percent, 
respectively. Appeals filed in the 
12 regional courts of appeals rose 
3 percent in 1998 to a record level 
of more than 53,800. The overall 
increase resulted from civil and 
bankruptcy appeals, which rose 6 
percent and 4 percent, respectively. 
Criminal appeals remained stable, 



while administrative agency appeals 
and original proceedings dropped 
14 percent and 8 percent, respec- 
tively. Although bankruptcy peti- 
tions increased from approximately 
1,350,000 to more than 1,400,000, 
attaining a record high for the 11 th 
consecutive quarter, the 5 percent 
increase represented a slowing of 
the double-digit growth seen in the 
two previous years. Filings under 
Chapter 7 accounted for more than 
70 percent of all bankruptcies and, 
with a 7 percent growth, were the 
main cause of the continued climb 
in the bankruptcy numbers. Chapter 
13 filings, which made up 28 percent 
of all bankruptcy filings, rose a 
modest 1 percent. Chapter 1 1 filings 
and Chapter 12 filings, each of 
which constitutes less than 1 percent 
of all bankruptcy filings, dropped 
22 percent and 9 percent, respec- 
tively. 

In contrast, civil filings declined 
6 percent. The number of civil filings 
in the U.S. district courts was 
256,787. The 6 percent decline in 
filings was attributable primarily to 
decreases in federal question 
litigation, filings involving the 
United States as a defendant, and 
diversity of citizenship filings. 
Federal question litigation filings 
dropped 6 percent from 156,596 to 
146,827. The overall decline in 
these filings was largely a result of 
a 22 percent decline in personal 
injury cases, of which the 4,300-case 
decline in product liability filings 
(mostly breast implant cases) had 
the greatest effect. In addition, a 
significant decline in federal ques- 
tion litigation involved state pris- 
oner petitions, which dropped by 
more than 3,200. The overall reduc- 
tion in state prisoner petitions likely 
results from the continuing effects 
of the Prison Litigation Reform Act, 
which, among other provisions, 
places limitations on how prisoner 
petitions may be filed. Filings with 
the United States as defendant fell 
by 12 percent from 39,038 to 34,463. 

5 



The Third Branch m January 1999 



it 

1 i: 



This decline stemmed chiefly from 
a 34 percent decrease in prisoner 
petitions filed by federal prisoners. 
Motions to vacate sentence 
decreased 46 percent (nearly 5,400 
filings), mostly as a result of the 
subsiding effects of the Bailey v. 
United States Supreme Court 
ruling, which restricted the imposi- 
tion of enhanced penalties for 
using firearms in violent crimes 
or drug trafficking offenses, and 
the 1996 Antiterrorism and Effective 
Death Penalty Act, which provided 
a one-year limitation period for 
filing state habeas corpus petitions 
and federal motions to vacate 
sentence. Diversity of citizenship 
filings declined 6 percent (more than 
3,200 cases) largely because of the 
drop in personal injury /product 
liability filings related to breast 
implants. 

The Supreme Court of the United States - 
Caseload Statistics 

The total number of case filings in 
the Supreme Court increased from 
6,634 in the previous term to 6,781 in 
the 1997 Term — an increase of 
slightly more than 2.2 percent. 
Filings in the Court's in forma paup- 
eris docket increased from 4,578 to 
4,694 — a 2.5 percent rise. The in- 
crease in the Court's paid docket was 
by only 30 cases, from 2,055 to 
2,085 — a 1.46 percent increase. 
During the 1997 Term, 96 cases were 
argued and 91 signed opinions were 
issued, compared to 90 cases argued 
and 80 opinions issued in the 1996 
Term. No cases from the 1997 Term 
were scheduled for re-argument in 
the 1998 Term. 



Administrative Office of the 
United States Courts 



The Administrative Office of the 
U.S. Courts serves as the central 
support agency for the administra- 



tion of the federal court system. The 
agency provides core administrative 
services and support in many areas 
and implements and promotes 
Judicial Conference policies and 
programs by issuing guidelines, 
standards, and procedures; provid- 
ing technical assistance and training; 
and conducting reviews and evalua- 
tions. 

The Administrative Office also 
prepares and submits the Judiciary's 
budget to Congress. This year, the 
Administrative Office enhanced the 
Judiciary's long-range planning and 
budgeting process to anticipate 
budget and program needs over the 
next five years. This process will 
strengthen the connections between 
project plans and budget formulation 
and execution processes, thereby 
improving the Judiciary's ability to 
set priorities, determine resource 
requirements, and implement 
program plans. 

The agency also has been working 
with court staff to address computer 
programming issues relating to the 
advent of the year 2000. The 
Judiciary's national case manage- 
ment systems and software have 
been successfully modified and 
tested to ensure they are Year 2000- 
compliant. Agency staff are also 
working with individual courts to 
make necessary modifications to 
their locally developed systems. 

The agency implemented a new 
advisory structure in 1998, streamlin- 
ing how it obtains input and advice 
from judges, court managers, and 
other Judiciary employees essential 
to the development of policy recom- 
mendations and the deployment of 
useful programs, systems, and 
services. 

As part of a report to Congress 
this year on the rising costs of the 
federal defender services programs, 
the Administrative Office developed 
a list of recommendations for 
containing defender service costs. 
Independent consultants also 
studied the cost, availability, and 



quality of appointed counsel in 
federal death penalty cases. Their 
final report made a number of 
recommendations to ensure that 
expenditures in federal death 
penalty cases stay within reasonable 
limits. 

The Administrative Office com- 
pleted an analysis of the federal 
probation and pretrial services 
system's home confinement pro- 
gram, which monitors non-violent 
federal offenders and defendants in 
their homes on a daily basis as an 
alternative to pretrial detention or 
post-conviction incarceration. The 
findings demonstrated that home 
confinement is both a successful and 
cost-effective alternative. The 
estimated average daily cost of 
federal custody in 1997 was $64.32, 
while the estimated average daily 
cost of home confinement supervi- 
sion was $17.98. 

The Administrative Office re- 
ceived two awards for excellence this 
year. In recognition of the Judiciary's 
long-range facilities planning process 
used to forecast space requirements 
for the federal courts, the agency 
received the General Services 
Administration's 1998 Annual 
Achievement Award for Real 
Property Innovation. It also received 
the National Performance Review's 
"Hammer Award," which recognizes 
efforts to help build a federal gov- 
ernment that works better and costs 
less, for a collaboration with the 
Department of Veterans Affairs 
resulting in reduced costs for office 
supplies for Judiciary and Depart- 
ment of Veterans Affairs' offices 
nationwide. 



The Federal Judicial Center 



The Federal Judicial Center 
improves the operation of the federal 
courts through research and educa- 
tion. This April, the FJC began 
operation of the Federal Judicial 
Television Network, which broad- 



/ he I hirii liraiu h 



I am i an/ 1999 



asts education and information to 
lore than 200 court sites with 
atellite receiving equipment in- 
tailed by the Administrative Office, 
he Judiciary's broadcasting net- 
work is the second largest in the 
xleral government, behind only the 
ocial Security Administration. By 
Hilary 1999, the Network will 
roadcast more than 500 hours of 
rogramming, including 39 pro- 
rams that the FJC produced specifi- 
illy for the network. 

Appropriately, Congressman 
arold Rogers of Kentucky intro- 
jced the FTC's first broadcast. 
bairman Rogers believes strongly 

"distance education" — providing 
iucation without the money and 
Tie that travel requires. So does the 
C. Last year, over three-fourths of 
e 30,000 participants in its educa- 
)n programs used distance educa- 
)n technologies including but not 
nited to the Network. 
Technology and science also 
fluence the substance of FJC 
iucation because they affect the 
igation process. Satellite broad- 
sts show probation officers how 
fenders under supervision may be 
ing the Internet illegally and 
lped judges handle evidentiary 
oblems created by the use of 
mputer simulations to recreate 
ents. 

At the request of a Judicial 
>nference committee, the FJC is 
aluating whether panels of experts 
pointed by judges in the breast 
plant litigation might be appro- 
iate for other types of litigation. It 
working with the American 
sociation for the Advancement of 
lence and the National Academy 
Sciences to help federal judges 
10 want to call on the scientific 
mmunity for assistance with 
entific evidence. The FJC is 
sparing a new edition of its 
ference Manual on Scientific Evi- 
ice to help judges exercise their 
entific evidence "gatekeeping" 
e, and it has provided research 



and analysis for the Mass Tort 
Working Group that I appointed last 
year to assess the seemingly intrac- 
table problems posed by mass tort 
litigation. In anticipation that judges 
will benefit from additional advice in 
this area, I have appointed a new 
Board of Editors, chaired by Judge 
Stanley Marcus of the Center's 
Board, to work with the FJC on 
revisions to its Manual for Complex 
Litigation. 

These efforts are only part of the 
FJC's much broader offerings that 
orient new judges and court staff, 
analyze legislative and case law 
developments that affect their work, 
hone skills of court and case man- 
agement, and inform all members 
of the Judicial Branch of their 
obligations under the codes of 
conduct and ethics statutes that 
govern them. 



The United States 
Sentencing Commission 



In the absence of Commissioners, 
the Commission staff has continued 
its work on tasks such as developing 
policy options to implement recent 
amendments in criminal statutes and 
to further previously established 
priorities; providing training and 
technical assistance to the criminal 
justice community; preparing the 
fiscal year 1998 annual report and 
sourcebook of federal sentencing 
statistics; conducting sentencing- 
related research; and serving as a 
clearinghouse for federal sentencing 
information. 

In January 1998, the Sentencing 
Commission published for comment 
a number of proposed amendments 
implementing broad changes in the 
guidelines covering theft, fraud, and 
other economic crimes and address- 
ing issues relating to telemarketing 
fraud, congressional initiatives, and 
proposals to eliminate conflicts 
among circuits. Subsequently, three 



public hearings were held to receive 
comments on the proposed amend- 
ments. 

On May 1, 1998, when some 
Commissioners remained in office, 
the Sentencing Commission sent to 
Congress 1 1 sentencing guideline 
amendments, which took effect 
November 1, 1998. Several of these 
amendments resolved conflicting 
appellate court interpretations. The 
Commission also adopted an 
amendment providing for increased 
punishment in fraud cases involving 
mass marketing or sophisticated 
concealment techniques, crimes that 
impact large numbers of vulnerable 
victims. The sophisticated conceal- 
ment amendment was modified by 
additional guideline amendments 
adopted by the Commission in 
September in response to the 
Telemarketing Fraud Prevention Act 
of 1998. Commission research staff 
estimates the combined effect of the 
amendments will be to increase 
sentences in telemarketing fraud 
cases from a current average of 21 
months to a minimum of 33 months, 
representing an approximate 57 
percent increase. 

Throughout 1998, Commission 
staff continued to include as one of 
its top priorities the systematic 
study and analysis of the guidelines 
for fraud, theft, and tax offenses. 
Additionally, in advancing the 
Commission's research and informa- 
tion dissemination agenda, Commis- 
sion staff in the fall presented a 
number of papers at the Annual 
Meeting of the American Society of 
Criminology. Topics included 
computer offense conduct, immigra- 
tion offenses, methamphetamine 
offenses, and sentencing guidelines 
for juveniles. In 1998, the Commis- 
sion received documentation on 
more than 50,000 cases in which 
sentences were imposed under the 
guidelines and trained approxi- 
mately 2,400 individuals at 44 
training sessions, including ongoing 
programs sponsored by the Federal 



t 



The Third Branch m January 1999 



it 

1 1: 



judicial Center and the Department 
of Justice. 

While the staff has been able to 
carry on its routine functions, the 
Commission needs commissioners to 
develop necessary guideline amend- 
ments to implement legislation, 
address circuit conflicts in guidelines 
interpretation, and remedy any other 
application concerns. 



In Memoriam 



This year, the Judiciary lost a 
friend and colleague, and the nation 
lost a distinguished servant, when 
Lewis F. Powell passed away on 
August 25. Justice Powell was 
appointed to the Supreme Court by 
President Richard M. Nixon in 
December 1971. He took the oath of 
office in January 1972 and served for 
more than 15 years before retiring in 
1987. A true patriot and public 
servant, he practiced law before 
volunteering to serve in the Air Force 
in World War II and again before 



accepting the appointment to the 
Supreme Court. Lewis Powell was a 
warm, good man of uncommon 
influence, personal grace, and fair- 
mindedness. He endeared himself to 
all who worked with him, and he 
will be greatly missed. 



Conclusion 



As we prepare to complete the 
work of this millennium and embark 
upon the next, the Judiciary may 
take a fair measure of satisfaction in 
that, despite the challenges we face, 
the United States court system 
continues to serve as a global stan- 
dard of excellence. We must dedicate 
ourselves to maintaining the splen- 
did tradition of our Judiciary, and to 
preserving a proper balance with the 
other branches of government and 
the states as we continue to work 
together. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 273-0107 
Our homepage address is 
http: / / www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



II 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
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1. 



THE 



THIRD 

BRANCH., 

Judiciary Takes Dual Budget Hite **^^, 




budget Includes 
Negative Allowance for 
udiciary, Nixes Court 
Construction Funds 

The President has decided to 
•ropose a "negative allowance" in his 
seal year 2000 budget submission to 
iongress, which will be applied to 
ie Judiciary's budget request. This 
ccurs despite a projected budget 
urplus of over $76 billion, a statutory 
squirement that the Judiciary's 
udget be transmitted to Congress 
without change," and a meeting 
litiated by federal judges and 
idministrative Office Director 



Former White House 
Counsel Abner 
Mikva, Judge 
Richard Arnold (8 th 
dr.), Judge John 
Heyburn (W.D. 
Ky.), Judge Norman 
Stahl (V dr.), 
Judge David Hansen 
(8 th dr.), and AO 
Director Leonidas 
Ralph Mecham met 
with White House 
and OMB leadership 
in late December to 
discuss the 
Judiciary's concerns. 



Leonidas Ralph Mecham to present 
the Judiciary's concerns to the White 
House Chief of Staff and the head of 
the Office of Management and 
Budget (OMB). 

In addition, for the third consecu- 
tive year the Administration has 
struck funds for federal courthouse 
construction from the budget. The FY 
2000 budget submitted by the Execu- 
tive Branch will not ask Congress to 
provide funds for the General Ser- 
vices Administration (GSA) to 
construct new courthouse facilities. 

In mid-December 1998, Mecham, 
Judge David Hansen, chair of the 
Judicial Conference Committee on the 

See Budget on page 2 



Newsletter 
of the 
Federal 

Courts 



Vol 31 
Number 2 
February 1999 




Courthouse Funds Nixed pg. 2 

Courts Anticipate ADR Provisions pg. 4 

Judiciary Submits Report on Resources pg. 6 



106* Congress 
Finalizes Committees 

The 106 th Congress named com- 
mittee chairs and members early 
in the first session, the ratio of 
Democrats to Republicans on key 
committees reflecting a slight gain 
by Democrats in the November 
elections. Most committee chairs 
and ranking minority members 
remained the same on the com- 
mittees dealing with Judiciary- 
related business. One change was 
the naming of Representative Bill 
Young (R-FL) as chair of the House 
Committee on Appropriations, 
replacing Bob Livingston (R-LA). 

With other business to con- 
sider, both the House and Senate 
have been slow to complete 
subcommittee rosters. The follow- 
ing are the committee members 
for both the Senate and House 
Appropriations and Judiciary 
Committees. New committee 
members are indicated in italics. 

Senate Appropriations Committee 

Ted Stevens, R-AK, chairman 
Thad Cochran, R-MS 
Arlen Specter, R-PA 
Pete V. Domenici, R-NM 
Christopher S. Bond, R-MO 
Slade Gorton, R-WA 
Mitch McConnell, R-KY 
Conrad Burns, R-MT 
Richard C. Shelby, R-AL 

See Committees on page 3 



Budget continued from page 1 
Judicial Branch; Judge Norman Stahl, 
chair of the Committee on Security 
and Facilities; Judge John Heyburn, 
chair of the Budget Committee; 
Judge Richard Arnold, and former 
judge and White House Counsel 
Abner Mikva met with President 
Clinton's Chief of Staff John Podesta 
and OMB Director Jack Lew. Osten- 
sibly, the meeting was to discuss the 
entire Judiciary budget, but three 
issues were of prime importance: a 
salary adjustment for federal judges, 
a reminder that the President was 
required to submit the Judiciary's FY 
2000 budget unchanged, and fund- 
ing for construction of new court 
buildings. The Administration was 
sympathetic to the inequities caused 
by the absence of cost-of-living 
adjustments for federal judges over 
five of the last six years. On the topic 
of funding for courthouses and the 
Judiciary's FY 2000 budget, however, 
there was little empathy. OMB's Lew 
cited the impact of discretionary 
budget caps and the need to fund 



Courthouses Affected 


by the FY2000 Budget 


Los Angeles, CA 


Site & Design 


Seattle, WA 


Construction 


Richmond, VA 


Site & Design 


Biloxi, MS 


Construction 


Washington, DC 


Construction 


Buffalo, NY 


Site & Design 


Miami, FL 


Construction 


El Paso, TX 


Site & Design 


Mobile, AL 


Site & Design 


Norfolk, VA 


Site & Design 


Las Cruces, NM 


Site & Design 


Salt Lake City, UT 


Construction 


Rockford, IL 


Site & Design 


Cedar Rapids, LA 


Site & Design 


Nashville, TN 


Site & Design 


Erie, PA 


Construction 


Savannah, GA 


Construction 



Presidential priorities as the driving 
factors in OMB's proposals affecting 
the Judiciary budget and courthouse 
construction. Quite clearly the needs 
and priorities of the Judiciary are not 
shared by the Administration. This 
was reflected when, on February 1, 
the budget was submitted with the 
negative allowance and without 
courthouse funding. OMB, which 
does not review the Judiciary budget 
request, is of the mistaken opinion 
that our FY 2000 request is excessive 
in comparison to Executive Branch 
requests. 

Negative Allowance Against Judiciary 

The Administration is required by 
31 U.S.C § 1105 (b) to include in the 
fiscal year budget the judicial 
branch's request "without change." 
OMB has circumvented this law by 
including in the budget request a 
recommendation that the overall 
budget be reduced by a certain 
amount, or a "negative allowance," 
and then informally recommending 
to Congress that reductions be made 
in the Judiciary's budget to cover the 
negative allowance. OMB has 
attempted to include negative 
allowances in four other fiscal year 
budgets, and was successful only the 
first time in FY 1990. Each succeed- 
ing time, after discussion by former 
Budget Committee chair, Judge 
Richard Arnold, with the President, 
the Judiciary's budget request was 
submitted without change. The 
informal understanding between the 
branches has been based upon the 
Judiciary's successful efforts to 
impose cost-saving measures and 
efficiencies, and to hold down 
budget requests. (For the story on 
the Judiciary's on-going efforts to 
cut costs and maximize resources, 
see page 6.) "The Judiciary has kept 
faith with the Administration by 
asking only for what is needed to 
maintain services," said Mecham. 
"Any increase we have requested 
helps the Judiciary keep pace with 



expanding federal caseloads and the 
added workload for probation and 
pretrial services. So by substantially 
reducing our budget, the Adminis- 
tration is curtailing the anti-crime 
and other services we will be able to 
provide." 

Ultimately, it is up to Congress 
and not the Administration, to 
determine Judiciary funding. 
Heyburn and Mecham with AO staff 
will be working over the next month 
to undo the damage done by OMB. 
In addition, legislation is being 
considered to strengthen the prohibi- 
tion against executive branch inter- 
ference in the Judiciary's budget. 

Courthouse Funds Nixed 

In a letter written recently on 
behalf of the Judicial Conference to 
leadership in the House and Senate, 
Mecham also argued the desperate 
need for new and expanded court- 
houses. He made the point that not 
only has the caseload in the federal 
courts increased tremendously, the 
number of judges and staff has 
expanded to handle the workload. 
However, the majority of existing 
court facilities were built 50 years 
ago and are not only showing their 
age, they cannot be modified easily 
to accommodate staff, additional 
courtrooms, the new electronic 
technology that contributes to better 
case management, or even the 
increased security measures that are 
now part of public life. Mecham 
noted GSA support for timely 
construction of the new and ex- 
panded courthouses. "GSA estimates 
that construction costs increase an 
average of 3-4 percent for each year 
of delay," wrote Mecham, "and the 
costs of scarce urban sites are 
expected to increase even more 
dramatically. For each construction 
project, GSA performed an economic 
analysis, which determined that 
building was more cost-effective 
than leasing additional space. In 

See Budget next page 



The Third Branch m I ebruary 1999 



ominittees continued from page 1 




ed Stevens, R-AK 



Committee continued 
idd Gregg, R-NH 
obert Bennett, R-UT 
?n Nighthorse Campbell, R-CO 
irry Craig, R-ID 
ay Bailey Hutchison, R-TX 
nKyl r R-AZ 

obert C. Byrd, D-WV, ranking 
inority member 
aniel K. Inouye, D-HI 




ibert C. Byrd, D-WV 



Ernest F. Hollings, D-SC 
Patrick J. Leahy, D-VT 
Frank R. Lautenberg, D-NJ 
Tom Harkin, D-IA 
Barbara A. Mikulski, D-MD 
Harry Reid, D-NV 
Herb Kohl, D-WI 
Patty Murray, D-WA 
Byron Dorgan, D-ND 
Dianne Feinstein, D-CA 
Richard Durbin, D-IL 

Senate Judiciary Committee 

Orrin G. Hatch, R-UT, chairman 




Orrin G. Hatch, R-UT 



Strom Thurmond, R-SC 
Charles Grassley, R-IA 
Arlen Specter, R-PA 
Jon Kyi, R-AZ 
Mike DeWine, R-OH 
John Ashcroft, R-MO 
Spencer Abraham, R-MI 
Jeff Sessions, R-AL 
Robert C. Smith, R-NH 

Patrick J. Leahy, D-VT, ranking 
minority member 




Patrick J. Leahy, D-VT 



Edward Kennedy, D-MA 
Joseph Biden, D-DEL 
Herb Kohl, D-WI 
Dianne Feinstein, D-CA 
Russell Feingold, D-WI 
Robert Torricelli, D-NJ 
Charles E. Schumer, D-NY 

House Committee on Appropriations 

C.W. Bill Young, R-FL, chairman 

Ralph Regula, R-OH 

Jerry Lewis, R-CA 

John Edward Porter, R-IL 

Harold Rogers, R-KY 

Joe Skeen, R-NM 

Frank R. Wolf, R-VA 

Tom DeLay, R-TX 

Jim Kolbe, R-AZ 

Ron Packard, R-CA 

Sonny Callahan, R-AL 

James Walsh, R-NY 

Charles H. Taylor, R-NC 

David L. Hobson, R-OH 

Ernest J. Istook, Jr., R-OK 

See Committees on page 9 



Budget continued from previous page 

eased facilities, the courts end up 
laying a high commercial rent and 
i subsidy to GSA for new building 
ind are forced into inadequate 
ipace, and the federal government 
las no asset as a result of its 
;xpenditure." 

The lack of funding for court- 
uxises in the FY 2000 budget is 



perplexing in light of the many 
steps urged by Congress that the 
Judiciary and GSA have taken to 
prioritize planning of courthouse 
construction, to initiate major 
economies in construction and 
design, including a comprehensive 
review of the U.S. Courts Design 
Guide, and to increase the efficiency 
of new courthouses through policies 
on courtroom sharing by visiting 



and senior judges. 

In the coming months, Stahl and 
Mecham will mount a campaign 
similar to the one waged success- 
fully last year to obtain necessary 
courthouse funding. Legislation 
also is being discussed that will 
allow the judicial branch to seek 
funds itself for these critical projects 
instead of relying on the executive 
branch. 



The Third Branch m February 1999 



It 

i i; 



New Law Authorizes ADR In All District Courts 



Most Provisions 
Anticipated by Federal 
Courts 

The Alternative Dispute Resolu- 
tion Act of 1998 (P.L. 105-315) was 
signed into law by the President at 
the end of October. The new law 
requires district courts to have an 
ADR program, but how that pro- 
gram is structured is left up to the 
individual courts, and in fact, most 
courts already meet the new law's 
requirements. 

■ Each district court is required to 
implement its own ADR program and to 
authorize the use of at least one form of 
ADR. Forms of ADR include but are not 
limited to mediation, early neutral 
evaluation, minitrial, and voluntary 
arbitration 

The Judicial Conference has long 
supported the use of voluntary ADR 



by district courts. Recommendation 
39 of the Long Range Plan for the 
Federal Courts encouraged district 
courts to "make available a variety 
of alternative dispute resolution 
techniques, procedures, and re- 
sources to assist in achieving a just, 
speedy, and inexpensive determina- 
tion of civil litigation." In the district 
courts, the first mediation and 
arbitration programs date from the 
1970s. According to a 1996 resource 
guide by the Federal Judicial Center 
and the CPR Institute for Dispute 
Resolution, mediation programs are 
the most common with arbitration as 
the second most frequently autho- 
rized ADR program. Nearly 80 
district courts have authorized or 
established at least one court-wide 
ADR program. Almost all courts, 
even those with no formal ADR 
programs, frequently use district 
judge- or magistrate judge-hosted 
settlement conferences. 



New Member Named to Executive Committee 



Chief Justice William H. 
Rehnquist has named Chief Judge 
Edward R. Becker (3 rd Cir.) to the 
Executive Committee of the 
Judicial Conference. Becker 
replaces Judge Henry A. Politz (5 th 
Cir.), who recently stepped down 
as chief judge of the Fifth Circuit. 

The eight-member Executive 
Committee, chaired by Judge Wm. 
Terrell Hodges (M.D. Fla.), acts on 
behalf of the Conference between 
regular meetings held in March 
and September. The Committee 
also reviews the jurisdiction of 
Conference committees, reviews 
and approves the Judiciary's 
annual financial plans, prepares 
proposed discussion and consent 
calendars for Conference meet- 
ings, and establishes and pub- 




Chief Judge Edward R. Becker (3 rd Cir.) 

lishes procedures for assembling 
agendas and schedules of events in 
preparation for Conference ses- 
sions. 



■ l.ach district court is required to 
adopt local rules requiring litigants in 
civil cases to consider the use of an ADR 
process and providing for the confidenti- 
ality of ADR processes. 

Many local court rules already 
require attorneys to discuss ADR 
options with their clients. In the 
initial case management conference, 
attorneys may also be expected to 
help determine, with the judge, 
whether ADR would be effective in 
the case, and, if so, what type of 
ADR process. A number of courts 
provide brochures on ADR at filing 
to help parties learn about their 
options. 

■ Districts may exclude cases or 
categories of cases that would not be 
appropriate for ADR. 

The Act recognizes that there may 
be cases or types of cases that are not 
suitable for ADR. Districts have the 
flexibility to exclude these cases from 
the ADR process. 

■ Each district is required to designate 
an employee or judicial officer to oversee 
its ADR program. 

Nearly a dozen courts have ADR 
administrators or directors whose 
full-time responsibility is to manage 
and monitor the ADR programs, and 
others have assigned these duties to 
the clerk's office staff. In some 
courts, magistrate judges run suc- 
cessful ADR programs. 

■ All districts, if they so desire, are now 
allowed to use voluntary arbitration as a 
form of ADR in cases where damages do 
not exceed $150,000. Only those 
districts that were previously authorized 
to conduct mandatory arbitration are 
still permitted to do so. 

The new Act permits all courts, if 
they so wish, to establish voluntary 
arbitration programs for cases where 
damages do not exceed $150,000. 
However, mandatory arbitration 
programs are still limited to those 
courts that were previously autho- 
rized under the Judicial Improve- 
ments and Access to Justice Act of 
1988, P.L. 100-72. 



4 



The Third Branch m February 1999 



lew AO Chiefs Named 

Two new chiefs have been named 

head divisions at the Administra- 
te Office: Michael W. Dolan in the 
rticle III Judges Division and 
sbert Lowney in the District Court 
dministration Division. 

Dolan was previously deputy 
lief of the Article III Judges divi- 
jn, a position he has held since 
94. From 1985 to 1994, he worked 
ith the Washington office of 
inthrop, Stimson, Putnam & 
)berts, a Wall Street law firm. From 
71 to 1985, he held positions in the 
free of Legislative Affairs of the 
apartment of Justice. During the 
>t six years with the Department, 

served as career Deputy Assistant 
torney General for Legislative 
fairs. 

Joining Dolan in April will be his 
w deputy chief, Bob Wily, previ- 
sly clerk of the bankruptcy court 
the Eastern District of Virginia. 
The Article III Judges Division 
dresses the needs and concerns of 
Iges through the operations of the 
dicial Compensation and Benefits 
anch, which handles payroll and 
rsonnel for all judges, along with 
/eral retirement systems and the 
tancial Disclosure Office, which 
nually processes over 3,000 reports 




Michael W. Dolan 



submitted by judges and staff, and 
through assistance to the Judicial 
Conference committees dealing with 
financial disclosure, international 
relations, and intercircuit assign- 
ments. The division also is respon- 
sible for the orientation to the AO of 
new chief judges and the introduc- 
tion to the federal court system of 
individuals nominated to Article III 
judgeships. 

Lowney, the new chief of the 
District Court Administration 
Division (DCAD), has been involved 
in clerk of court issues since his 
arrival at the AO in 1988. Before 



Robert Lowney 



FJTIil in March 



The Judiciary's internal broad- 
asting network, the Federal 
adicial Television Network (FJTN) 
; already the second-largest 
etwork of its kind in the federal 
ivilian government. Judiciary 
mployees can access programs on 
verything from the impact of the 
ew ADR Act to how WordPerfect 
forks. March brings a special 
;port on Y2K, with the first 
howing on March 1. On March 16, 
lere's a live show on the Judiciary 
enefits Initiative, using viewer 



response systems. Airing every 
Monday and Tuesday, this month's 
In Camera features a conversation 
with Judge Norman Stahl (1 st Cir) 
on courthouse construction. And 
throughout the month News Breaks 
keeps you up to date on news from 
the Hill and around the country 
affecting the Judiciary. For the 
latest schedule check the Judiciary's 
J-Net at http://156.132.47.230/ 
docs/EDUPROG/Calendar.html 
and the insert in this month's Third 
Branch newsletter. £»^ 



joining the AO, he was deputy clerk 
in the U.S. District Court for the 
District of Columbia and in the 
Northern District of California. He 
began at the AO as a program 
specialist in the Court Administra- 
tion Division, then served as special 
assistant to the division's chief. 
When the division was reorganized, 
Lowney was appointed special 
assistant for court administration to 
the Assistant Director, Office of 
Court Programs. In addition to his 
new responsibilities, Lowney will 
continue his role as Deputy for Court 
Administration in the Office of Court 
Programs, a position he has held 
since 1995. 

DCAD's support of district 
courts, includes the allocation of 
staffing and other resources, the 
management of projects such as the 
deployment of a new case manage- 
ment system with electronic filing 
capability, the jury management 
system, and programs such as court 
reporting and interpreting. The 
division also helps support three 
Judicial Conference committees, the 
Judicial Resources Committee, the 
Committee on Court Administration 
and Case Management, and the 
Committee on Automation and 
Technology. £^ 



The Third Branch m February 1999 



Judiciary Makes the Most ot Resources Now— aod For The Millennium 



Ik 

1 1: 



Working effectively and cost 
efficiently may be the Judiciary's 
watchwords as it nears the millen- 
nium. In its third yearly Report to 
Congress on the Optimal Utilization of 
Judicial Resources, submitted this 
month, the Judiciary outlines still 
more initiatives to improve the 
workings of the Judiciary and 
enhance services, while using its 
appropriated dollars economically. 
The full report is available on the 
Judiciary's website at 
www.uscourts.gov. 

Throughout 1998, with additional 
projects slated for 1999 and 2000, the 
Judiciary has been improving 
methods of determining court 
staffing and judicial officer require- 
ments; reviewing the space planning 
and acquisition program; improving 
management of defender services 
program resources; improving the 
efficiency and effectiveness of the 
probation and pretrial services 
system; enhancing the quality and 
efficiency of court proceedings; 
creating efficiencies by automating 
labor intensive work processes; 
enhancing services to court system 
users; reducing meeting, training, 
and communications costs; improv- 
ing the capabilities of court employ- 
ees through training; and enhancing 
long-range planning and budgeting 
efforts. 

The following is a sampling of the 
Judiciary's work in progress: 

■ A two-year study will update 
formulas for determining staffing 
requirement in the courts. The new 
formulas will be used to allocate 
court staff resources beginning in 
fiscal year 2001 and to estimate 
personnel requirements beginning 
with the FY02 budget request. 

■ Over the next several years, the 
Judiciary plans to include some level 
of courtroom technology — including 
video evidence presentation systems, 



videoconferencing capabilities, 
electronic court-reporting systems — 
in every new construction and 
renovation project. The technologies 
can reduce trial time, lower litigation 
costs, improve fact-finding, en- 
hance understanding of information 
and improve access to court proceed- 
ings. 

■ District courts with a level of 
prisoner civil rights case filings above 
the national average will have 
videoconferencing capabilities. At the 
end of FY98, 35 district courts were 
using videoconferencing for these 
cases, and the program will expand to 
eight more locations by the end of 
FY99 and nine more locations by the 
end of FY2000. 

■ Digital audio technology will be 
introduced in six district and bank- 
ruptcy courts to take the official 
record of court proceedings. Follow- 
ing assessment of the technology, the 
Judiciary will determine whether to 
designate the technology as an official 
method of taking the court record. 

■ Telephone interpreter services — 
court interpreter services from a 
remote location by phone — will be 
available to courts at six sites, and 
plans are in the works to expand the 
program over the next two years. The 
program is used in proceedings such 
as pretrial hearings, initial appear- 
ances, arraignments, motion hearings, 
and probation and pretrial services 
interviews. 

■ An electronic case filing system is 
currently being tested in nine district 
and bankruptcy courts. Electronic 
filing could improve service through 
more accurate up-to-date records, and 
quicker, easier access to documents by 
the public. 

■ The bankruptcy Public Access to 
Court Electronic Records (PACER) 
system will be upgraded to allow 24- 
hour real-time access to a court's 



database of publicly available 
records. The upgrade also will 
allow courts to maintain several 
years of data on-line. It is being 
tested in 15 courts with full distri- 
bution expected early in 1999. 

■ Individual courts are being 
encouraged with grants to find 
more ways to increase public access 
to records. 

■ The Internet could give the 
public electronic access to court 
information. Nearly 100 courts now 
use the Internet to post filing 
instructions, jury instructions, court 
calendars and directions. Trans- 
mitting bankruptcy notices through 
the Internet will make the service 
more practical for smaller creditors 
and bankruptcy practitioners, as 
well as cheaper than paper 
noticing. 

■ Automating the collection of 
magistrate judge statistics will 
capture data automatically during 
docketing, eliminating manual data 
entry, facilitating data analysis, and 
producing a uniform reliable way to 
collect data on the duties and 
workloads of magistrate judges and 
on cases in district courts. 

■ Start-up of PACTS, a nationwide 
case management system, will 
provide electronic storage and 
retrieval of most probation and 
pretrial services reports and 
records, as well as defendant/ 
offender imaging. 

■ Mobile computing will increase 
the productivity of probation and 
pretrial services officers on super- 
vision and investigation activities. 
The Judiciary completed a two-site 
study on its use in April 1998, and 
found it makes information more 
accessible and data entry more 
efficient. 

■ A new jury management system 
will soon go nationwide. The new i 



ird Branch m I i-hnmry 1999 




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system promises to modernize and 
standardize current processes — 
including in-house jury selection, 
management, and tracking — for 
managing juries in district courts, 
reducing or eliminating inefficient, 
time-consuming manual work and 
rising vendor support costs. 

■ More use of videoconferencing is 
planned for administrative meetings, 
conferences, and training seminars. 
As of January 1999, video- 
conferencing capabilities were 
installed in 85 court locations, with 
more district courts interested in 
acquiring the technology. 

■ Opportunities for distance learn- 
ing are being pursued with plans to 
include interactive video teletraining, 
computer-based training, and 
desktop videoconferencing. The 
Judiciary currently broadcasts to 
courts over 20 hours weekly on 
retirement benefits, procurement, 
human resource management, and 
travel regulations. The Judiciary 
reduced its travel budget request by 
$1 million in FY99 in anticipation of 



savings generated by distance 
learning programs. 

■ With the completion of the Data 
Communications Network in Sep- 
tember 1998, the Judiciary now has 
an internal electronic communica- 
tions link for all Judiciary employees. 
The DCN means easy sharing of case 
information, opinions, and e-mail, 
and provides an infrastructure for 
Judiciary-wide software and com- 
munication and financial systems. 

■ A comprehensive study of the 
Judiciary's space and facilities pro- 
gram will be completed in FY 2000. 
The study should produce recommen- 
dations to further improve planning 
processes and reduce future costs. 

■ Taking the initiative to contain the 
cost of defender services, the Judicial 
Conference approved the recommen- 
dations of the report, Federal Death 
Penalty Cases: Recommendations 
Concerning the Cost and Quality of 
Defense Representation, and the 
Judiciary continues to implement the 
recommendations including in the 
January 1998 Report on Costs and 



Recommendations for the Control of 
Costs of the Defender Services Program. 
While concluding that "overall, the 
average cost of representation is 
reasonable in relation to the obliga- 
tions imposed on defense counsel 
and the costs of prosecuting such 
cases," the report offered numerous 
steps to keep expenditures in these 
cases within limits. In early FY99, 
courts and counsel were notified 
about and encouraged to comply 
with these recommendations. 

■ The Judiciary also is examining 
the reasons for the disparity on 
representation costs in federal capital 
habeas corpus cases among districts 
and circuits, including a comprehen- 
sive statistical analysis of private 
panel attorney costs, in a March 1999 
report to Congress. 

■ To improve management of the 
panel attorney program, the Judi- 
ciary is starting a new payment and 
management information system 
that promises a more efficient means 
of collecting additional, more timely, 
and better quality data. &^ 



Administrative Office Hosts Summit on Judges' Pay Freeze 



Last month, the Administrative 
Office hosted a meeting, chaired by 
Judge David R. Hansen, to discuss 
the problem of the pay freeze, 
which has eroded the real salaries 
of high-level 
officials in all three 
branches of gov- 
ernment. Partici- 
pants discussed 
solutions to the 
problem of pay, as 
well as how to 
coordinate activi- 
ties to increase the 
salaries of judges, 
members of 
Congress, and top 
executive branch 
officials. 



In attendance were representa- 
tives from the Federal Judges 
Association, the National Con- 
ference of Bankruptcy Judges, 
the Federal Magistrate Judges 



Association, the American Bar 
Association, the American College of 
Trial Lawyers, the American Judica- 
ture Society, the Federal Bar Associa- 
tion, the National Bar Association, 
and the Senior Executives Associa- 
tion. &w 




The Third Branch m February 1999 



IK 

r 



JUDICIAL MILESTONES 



Appointed: Richard M. Berman, as 

U.S. District Judge for the Southern 
District of New York, November 23. 

Appointed: Edward J. Damich, as 

Judge, U.S. Court of Federal Claims, 
December 1. 

Appointed: Nancy B. Firestone, as 

Judge, U.S. Court of Federal Claims, 
December 4. 

Appointed: Donovan W. Frank, as 

U.S. District Judge for the District of 
Minnesota, November 2. 

Appointed: Alvin K. Hellerstein, as 

U.S. District Judge for the Southern 
District of New York, November 30. 

Appointed: Robert S. Lasnik, as U.S. 
District Judge for the Western 
District of Washington, December 2. 

Appointed: Norman A. Mordue, as 

U.S. District Judge for the Northern 
District of New York, December 4. 

Appointed: Jeanne E. Scott, as U.S. 
District Judge for the Central District 
of Illinois, November 30. 

Appointed: Margaret B. Seymour, as 

U.S. District Judge for the District of 
South Carolina, October 30. 

Appointed: Aleta Arthur Trauger, as 

U.S. District Judge for the Middle 
District of Tennessee, December 1 . 

Elevated: Judge R. Allan Edgar, to 

Chief Judge, U.S. District Court for 
the Eastern District of Tennessee, 
succeeding James H. Jarvis, Novem- 
ber 24. 

Elevated: Judge Joe Billy McDade, 

to Chief Judge, U.S. District Court for 
the Central District of Illinois, 
succeeding Michael M. Mihm, 
November 19. 

Senior Status: Judge William L. 
Dwyer, U.S. District Court for the 



Western District of Washington, 
December 1 . 

Senior Status: Judge Robert P. 
Patterson, Jr., U.S. District Court for 
the Southern District of New York, 
December 31. 

Senior Status: Judge Anna Diggs 
Taylor, U.S. District Court for the 
Eastern District of Michigan, Decem- 
ber 31. 

Senior Status: Court of Appeals 
Judge David R. Thompson, U.S. 
Court of Appeals for the Ninth 
Circuit, December 31. 

Retired: Judge Edward N. Cahn, 

U.S. District Court for the Eastern 
District of Pennsylvania, December 31. 

Retired: Bankruptcy Judge Henry 
Clyde Pearson, U.S. Bankruptcy 
Court for the Western District of 
Virginia, November 30. 

Resigned: Magistrate Judge Marga- 
ret B. Seymour, U.S. District Court 
for the District of South Carolina, 
October 29. 

Deceased: Senior Judge James W. 
Kehoe, U.S. District Court for the 
Southern District of Florida, Decem- 
ber 13. 

Deceased: Senior Judge Dennis 
Raymond Knapp, U.S. District Court 
for the Southern District of West 
Virginia, December 25. 

Deceased: Senior Judge David S. 
Nelson, U.S. District Court for the 
District of Massachusetts, October 21. 

Deceased: Senior Judge Earl F. 
O'Connor, U.S. District Court for the 
District of Kansas, November 29. 

Deceased: Senior Judge Joseph E. 
Stevens, Jr., U.S. District Court for 
the Western District of Missouri, 
December 18. 



THE 

THIRD 

BRANCH 



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DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
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MANAGING EDITOR 
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ASSISTANT EDITOR 
Sharon F. Marsh 

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JUDICIAL BOXSCORE 




As of February 1,1999 




Courts of Appeals 
Vacancies 


17 


Nominees 


7 


District Courts 




Vacancies 


41 


Nominees 


10 


Court of International Trade 




Vacancies 


1 


Nominees 





Courts with 




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25 


For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



i rd Branch m I rlnimry 1999 



Committees continued from page 3 

tot Appropriations continued 

Henry Bonilla, R-TX 

Joe Knollenberg, R-MI 

Dan Miller, R-FL 

Jay Dickey, R-AR 

Jack Kingston, R-GA 

Rodney P. Frelinghuysen, R-NJ 

Roger F. Wicker, R-MS 

Michael P. Forbes, R-NY 

George R. Nethercutt, Jr., R-WA 

Randy Cunningham, R-CA 




C.W. Bill Young, R-FL 




David R. Obey, D-WI 



Todd Tiahrt, R-KS 
Zack Wamp, R-TN 
Tom Latham, R-IA 
Anne Northup, R-KY 
Robert Aderholt, R-AL 
Jo Ann Emerson, R-MO 
John E. Sununu, R-NH 
Kay Granger, R-TX 
John E. Peterson, R-PA 

David R. Obey, D-WI, ranking 
minority member 
John P. Murtha, D-PA 
Norman D. Dicks, D-WA 
Martin Olav Sabo, D-MN 
Julian C Dixon, D-CA 
Steny H. Hoyer, D-MD 
Alan B. Mollohan, D-WV 
Marcy Kaptur, D-OH 
Nancy Pelosi, D-CA 
Peter J. Visclosky, D-IN 
Nita M. Lowey, D-NY 
Jose E. Serrano, D-NY 
Rosa L. DeLauro, D-CT 



James P. Moran, D-VA 
John W. Olver, D-MA 
Ed Pastor, D-AZ 
Carrie P. Meek, D-FL 
David E. Price, D-NC 
Chet Edwards, D-TX 
Robert E. Cramer Jr., D-AL 
James E. Clyburn, DSC 
Maurice D. Hinchey, D-NY 
Lucille Roybal-Allard, D-CA 
Sam Fan, D-CA 
Jesse L. Jackson, Jr., D-IL 
Carolyn C. Kilpatrick, D-MI 
Allen Boyd, D-FL 

House Judiciary Committee 

Henry J. Hyde, R-IL, chairman 
F. James Sensenbrenner Jr., R-WI 
William McCollum, R-FL 
George Gekas, R-PA 



Howard Coble, R-NC 
Lamar Smith, R-TX 
Elton Gallegly, R-CA 
Charles Canady, R-FL 
Bob Goodlatte, R-VA 
Stephen Buyer, R-IN 
Ed Bryant, R-TN 
Steve Chabot, R-OH 
Bob Barr, R-GA 
William Jenkins, R-TN 
Asa Hutchinson, R-AR 
Edward Pease, R-IN 
Christopher Cannon, R-UT 
James Rogan, R-CA 
Lindsey Graham, R-SC 
Mary Bono, R-CA 
Vacancy 

John Conyers Jr., D-MI, ranking 
minority member 




John Conyers, D-MI 




Henry J. Hyde, R-IL 



Barney Frank, D-MA 
Howard Berman, D-CA 
Rick Boucher, D-VA 
Jerrold Nadler, D-NY 
Robert Scott, D-VA 
Melvin L. Watt, D-NC 
Zoe Lofgren, D-CA 
Sheila Jackson Lee, D-TX 
Maxine Waters, D-CA 
Martin Meehan, D-MA 
William Delahunt, D-MA 
Robert Wexler, D-FL 
Steven Rothman, D-NJ 
Tammy Baldwin, D-WI 
Anthony Weiner, D-NY 



The Third Branch u February 1999 



INTERVIEW 



Ik 



Committee Addresses Crisis in Federal Pay 



Judge David R. Hansen (8"' Cir.) was 
appointed to the District Court for the 
Northern District of Iowa in 1986 and 
elevated to the Eighth Circuit in 1991. 
He became chair of the Judicial Confer- 
ence Committee on the Judicial Branch 
in 1998. 



Q. Judges have received only a 
• single cost-of-living adjust- 
ment since 1993, the one in January 
1998. What has this meant in terms 
of the erosion in take-home dollars 
for a judge's salary? 



A. Since January 1993, the value 
• of a judge's salary has 
declined over 16 percent when 
measured against the Consumer Price 
Index. What that means is that each 
judge's annual salary is worth about 
$22,000 less today than it was in 1992. 
In the aggregate, since 1993, each 
judge has lost over $77,000 in pur- 
chasing power. On the other side of 
the coin, the caseloads of district 
judges have increased by more than 
15 percent. This situation of having 
more work to do for less real pay is 
disheartening, discouraging, and de- 
moralizing to judges. But, we are not 
alone in feeling the real pain of con- 
stant salary erosion. The compensa- 
tion of each member of Congress and 
high-level executive branch official 
has slipped in the very same way. 



Q # The assumption had been 
• that the annual Employment 
Cost Index adjustment mechanism 
built into the 1989 Ethics Reform Act 
would eliminate this kind of prob- 
lem. What went wrong? 



A 



After 1989, annual cost-of- 
living salary adjustments 



were something that judges and 
other top government officials were 
not supposed to worry about. The 
Ethics Reform Act provided for 
indexed cost-of-living salary adjust- 
ments in each year that the pay of the 
rank and file federal employees was 
adjusted. The Act worked well for 
the first two or three years, and the 
Congress, the Judiciary, and the 
senior Executive Branch officials 
received the salary adjustments 
contemplated when the Act was 
passed— adjustments that were 
statutorily designed to maintain 
what had been determined by the 
Congress in 1989 to be fair and 
adequate salaries. In 1993 all of 
government joined in a belt-tighten- 
ing effort because of the size of the 
projected budget deficit and the 
perceived state of the economy, and 
no government employee received a 
COLA. Every year thereafter, with 
the exception of 1997 when Congress 
authorized a 2.3 percent cost-of- 
living adjustment payable in 1998, 
the Congress has seen fit to deny 
itself the annual cost-of-living 
adjustment already authorized by 
the 1989 Act, and in so doing, it has 
also denied the Act's benefits to the 
Judiciary and the senior officials of 
the executive branch. 

The problem is that only Congress 
can fix the pay of its members, 
judges, and other top government 
officials, or create a mechanism for 
doing so. Members of Congress 
recognize the delicate nature of this 
conflict, and they are often reluctant 
to allow themselves to receive even 
modest cost-of-living salary adjust- 
ments because they fear an adverse 
public reaction. I wish the media 
would help explain their financial 
needs, including the need of many of 
them to maintain two homes. 




Judge David Hansen 



Q. The Ethics Reform Act also 
• created a Citizens Commis- 
sion on Public Service and Compen- 
sation. What was its original pur- 
pose? And what happened to the 
Commission? 

A. In 1989, Congress adopted a 
• new approach to the prob- 
lem of setting the salaries of top 
government officials by establishing 
a Citizens' Commission on Public 
Service and Compensation to replace 
what was informally known as the 
Quadrennial Salary Commission. 
The Citizens' Commission is sub- 
stantially different from the Qua- 
drennial Salary Commission, and 
Congress adopted the new system 
because members believed that the 
public was unhappy with certain 
features of the former process. In 
particular, many members believed 
that the public was irate because the 
Quadrennial Commission's recom- 
mendations could take effect in an 
automatic fashion without a re- 
corded vote. 

The Citizens' Commission, like 
the Quadrennial Salary Commission, 
was to be appointed every four 
years with the mission of recom- 



10 



The Ihird Branch ■ / ebruary 1999 



mending salary levels for top gov- 
ernment officials. The first commis- 
sion was to be convened in 1993; 
however, Congress rescinded its 
funding, and only four of 11 
members were named. The Chief 
Justice named two appointees, and I 
understand that the President pro 
tempore of the Senate made appoint- 
ments as well. 

Prior to 1967, which is the year the 
Quadrennial Salary Commission 
system was established, there was no 
established mechanism for adjusting 
the pay of judges and other top 
government officials. As a result, top 
government employees went years 
without salary adjustments. The 
Quadrennial Salary Commission was 
intended to bring a degree of fairness 
and regularity to the politically 
charged issue of federal compensa- 
tion. This system, while not perfect, 
did lead to some periodic upward 
adjustments in pay. 



Q # Where has the Judicial 
• Conference stood on the 
issue of salary adjustments for 
judges? 

A. The Judicial Conference 
• strongly believes that 
Congress and the President should 
let the Ethics Reform Act's Employ- 
ment Cost Index mechanism work. 
The crisis in federal pay in the 1980's 
came about largely because of the 
absence of such annual and auto- 
matic cost-of-living salary adjust- 
ments. When the Ethics Reform Act 
was enacted, it was understood that 
the Employment Cost Index mecha- 
nism would provide top government 
officials with regular cost-of-living 
salary adjustments which would 
alleviate the future need for major 
"catch-up" adjustments of the type 
enacted in 1989. 

The Conference also supports a 
pay adjustment for judges to recoup 
lost annual cost-of-living salary 
adjustments. Such an adjustment 



would not raise in absolute terms the 
salaries of judges and other top 
government officials, it would 
simply restore their lost purchasing 
power. 

The Conference also wants to 
address the problem of salary 
compression. Within the Judiciary, 
the salaries of court unit executives 
are bumping up against (and, in 
some instances, surpassing) the 
salaries of bankruptcy judges and 
magistrate judges. Similar compres- 
sion is affecting the pay of executive 
branch officials, as well. In San 
Francisco, officials in the top four 
levels of the Senior Executive Ser- 
vice (SES) are bumping up against 
the salary cap of $125,900. In most 
other localities, officials in the top 
three levels of the SES have hit this 
cap. 



Q # Your Committee on the 
• Judicial Branch has made 
recommendations in the past on 
judicial salaries. What is the 
Committee's agenda for the 106 th 
Congress? 

A. The Committee is deeply 
• concerned about the pattern 
of pay slippage that has emerged 
due to the denial of annual cost-of- 
living salary adjustments. In 1989, 
judges, in return for the assurance of 
annual and automatic cost-of-living 
salary adjustments, accepted severe 
limits on income earned from 
outside sources and honoraria. If 
Congress and the President do not 
reverse this pattern of salary neglect, 
it will threaten judicial indepen- 
dence, as well as the ability of the 
Judiciary to attract and retain 
talented, public-spirited people who 
could and do earn much more 
money elsewhere. It has not escaped 
our notice that pursuant to legisla- 
tion passed last year, the IRS is now 
authorized to pay its most senior 
managers salaries equal to that paid 
to the Chief Justice. 



Q. What is the public percep- 
• tion of COLA-type pay 
adjustments for elected officials and 
federal judges? 

A. I believe that a majority of 
• the public supports compen- 
sating its government's top officials 
fairly, and that includes some 
method of protecting the pay of 
those officials from the effects of 
inflation. Good modern government 
demands the sharpest minds and the 
sharpest talents to solve the prob- 
lems of an ever increasingly complex 
society, and government must be at 
least reasonably competitive with the 
salaries and benefits offered in the 
private sector. 

Judges, like any other employees, 
do not expect to receive real salary 
increases annually; however, judges 
also do not accept judicial appoint- 
ments anticipating that their pur- 
chasing power will shrink annually. 
I sometimes wonder how quickly 
those judges appointed in 1993 
would have accepted their commis- 
sions if they had been told then that 
their real pay would be worth 
$22,000 less per year by 1999. We 
live in a society where cost-of-living 
salary adjustments to maintain 
purchasing power — whether such 
adjustments are made pursuant to a 
collective bargaining agreement or a 
statute (as in the case of Social 
Security) — are a fact of economic life. 
The danger in denying top govern- 
ment officials annual cost-of-living 
salary adjustments to protect them 
against salary erosion is that the best 
and the brightest will refuse to enter 
government service because it will 
entail too great a financial sacrifice. 
Able lawyers are more than willing 
to make some sacrifices for the 
prestige and sense of public service 
that the Judiciary offers, but psychic 
income does not protect you from 
increases in the cost of living, nor 
does it buy a house and pay a 
mortgage, or send children to college. 

See Interview on page 12 



11 



The Third Branch m February 1999 



Interview continued from page 11 

Q # In your opinion, what is the 
• single greatest impediment 
to a cost-of-living increase for 
judges? 

A # The reluctance of the Con- 
• gress to let the 1989 Act 
work as it was intended to grant its 
members a cost-of-living adjustment. 



Q # Legislation on judicial 
• benefits surfaced briefly 
in the 105 th Congress. What hap- 
pened to the bill, and what do you 
expect, legislatively, in the coming 
session? 

A. Last summer, the Judiciary 
• sought legislation authoriz- 
ing it to establish a flexible benefits 
plan, including a cafeteria plan, for a 
period of five years for federal 
judicial officers and employees. 



Flexible benefits plans and cafeteria 
plans are almost universal in the 
large employee private sector and 
are also very common within state 
governments. In fact, the Judiciary's 
proposed plan is very similar to one 
proposed for House members and 
employees by the House Oversight 
Committee in 1996. 

Essentially, a flexible benefits 
plan allows an employee to divert 
salary to an employee's benefits on 
a pre-tax basis, thus transforming 
the benefits into non-taxable fringe 
benefits. An employee would save 
money by not paying taxes on the 
portion of the employee's salary that 
pays insurance premiums. In this 
way, employees may have easier 
access to such essential benefits as 
health care and dependent care 
While the Judiciary would continue 
to offer judges and employees the 
current federal benefits package, this 
statutory change would authorize 
the Director of the Administrative 



Office to make new supplemental 
benefits available, including dental 
benefits, short- and long-term 
disability benefits, long-term care 
insurance, and vision care. Last yeai 
our proposed legislation was in- 
cluded in an omnibus civil service 
bill containing over 40 provisions, 
some provisions of which were 
strongly opposed by federal em- 
ployee unions, as well as by some 
key members of the House Civil 
Service Subcommittee. In the face ol 
strong opposition to many of the 
draft bill's provisions, then House 
Civil Service Subcommittee Chair- 
man John Mica (R-FL) agreed to 
pursue only several provisions that 
had the unanimous support of 
subcommittee members. As a result, 
the Judiciary's flexible benefits 
legislation did not make it out of 
subcommittee. 

I believe that the Judiciary will 
seek to have similar legislation 
introduced this year. £^ 



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-BRANCH 



Newsletter 
of the 

Federal 
Courts 



Vol. 31 
Number 3 
March 1999 




Bare Bones Budget Request Carries Risks 




Despite a significant growth in 
vorkload, the federal Judiciary's 
iscal year 2000 budget request is a 
)are bones one that will allow the 
ourts to function at their current 
ervices level and will freeze staffing 
or the second year in a row, a federal 
ndge told a House appropriations 
ubcommittee. 

"We ask for no new initiatives, no 
tew programs . . . and no new court 
lerk's staff or probation and pretrial 
ervices officers," said Judge John G. 
feyburn II (W.D. KY), chair of the 
udicial Conference Budget Commit- 
ee. In developing its proposed 
'udget, the Judiciary made several 
ssumptions concerning workload, 
incontrollable expenses, and produc- 
ivity enhancements due to automa- 
ion and technology. This approach is 
isky, and if the assumptions prove to 



Testifying before a 
House subcom- 
mittee on the 
Judiciary's FY 2000 
budget were (I. to r.) 
Federal Judicial 
Center Director 
fudge Rya Zobel, 
Judge John G. 
Heyburn II, Chief 
Judge Lawrence L. 
Piersol and AO 
Director Leonidas 
Ralph Mecham. 



be incorrect "it will force us to make 
some very unsatisfactory and even 
dangerous choices," Heyburn told the 
House Appropriations Subcommittee 
on Commerce, Justice, State, the 
Judiciary, and Related Agencies. 

Heyburn was accompanied at the 
hearing by Chief Judge Lawrence L. 
Piersol (D. S.D.), who also is a mem- 
ber of the Budget Committee and 
Leonidas Ralph Mecham, Director of 
the Administrative Office, and a 
member of the Conference's Execu- 
tive Committee. Judge Rya W. Zobel, 
Director of the Federal Judicial 
Center, presented the Center's budget 
request. 

Mecham told the subcommittee 
members that, despite substantial 
growth in workload, the AO's budget 
request would maintain current 

See Budget on page 2 



106th Congress Names Subcommittee Members pg. 4 

ABA Task Force Looks at Federalization pg. 6 

Survey Shows Belief in U.S. Justice pg. 9 



Judiciary Wins Delay 

Insurance Rate 
Increase On Hold 

Calling the action "legally 
objectionable and poor public 
policy," the Judiciary is attacking 
a recent determination by the 
Office of Personnel Management 
(OPM) to nearly double the 
Federal Employees Group Life 
Insurance (FEGLI) premiums of 
Article III judges 65 years of age 
or older. 

The premiums, which are due 
to increase May 1, may cost some 
judges over $13,000 more per 
year for life insurance. Collec- 
tively, the 494 Article III judges 
who are older than 60 now will 
pay $3.5 million more in premi- 
ums annually. These judges will 
not receive extended coverage or 
additional benefits — their coverage 
does not change. 

Shortly after OPM announced 
the increase, Judge Jon Newman 
(2 nd Cir.), designated by the 
Judicial Conference Executive 
Committee to lead the delega- 
tion; Judge Joyce Hens Green (D. 
D.C.), a member of the Conference 
Judicial Branch Committee; 
Judge W. Earl Britt (E.D. N.C.), 
past-president of the Federal 
Judges Association; and Admin- 
istrative Office Director Leonidas 
Ralph Mecham met with OPM 

See FEGLI on page 3 



III 

IB 



Budget continued from page 1 

services levels, not add staff. "We 
felt it would be imprudent to request 
additional staff in FY 2000 when none 
are requested for the courts, regard- 
less of our need," said Mecham. "Con- 
sequently, it is imperative that the 
AO receive its full request; otherwise 
critical staff and support functions 
for the courts will be in jeopardy." 

At the hearing subcommittee 
Chairman Harold Rogers (R-KY) 
questioned the "negative allowance" 
the Office of Management and 
Budget (OMB) imposed on the 
Judiciary when it reduced its FY 2000 
request by $159 million. "What 
business is it of the President to say 
how much money the courts should 
get? Where in the Constitution does 
it say that the President should 
decide how much money the courts 
should get? I resent it terribly," said 
Rogers. "OMB is overreaching in 
every respect. It's outrageous." 

Mecham agreed with Rogers, 
pointing out that the OMB action 
was deceptive as well as illegal, since 
the President's budget, by statute, 
must be sent to Congress "without 
change." 

Rogers also referred to "the next 
potential calamity" on June 15, when 
FY 99 funding runs out for the 
Judiciary and others covered by the 
Commerce, State, Justice appropria- 
tions bill. Because Congress and the 
Administration could not reach an 
agreement on the upcoming census, 
they decided to provide only partial 
funding for the Department of Com- 
merce, which administers the census, 
as well as the Judiciary and others 
contained in the same funding bill. It 
was hoped that the issues would be 
resolved by the Supreme Court prior 
to June 15 and full funding would be 
restored. The Supreme Court already 
has ruled on the case, but funding 
has not been restored and many 
major issues remain. Both Rogers 
and the subcommittee's ranking 
minority member, Jose Serrano (D- 
NY) said they would attempt to free 



the Judiciary from the funding ex- 
clusion. Mecham strongly urged the 
subcommittee members to remove 
the Judiciary entirely from the June 
15 cutoff. He pointed out that the 
Judiciary is an independent branch 
of government and should not be 
placed in the middle of a political 
fight involving two branches of 
government. He said the Judiciary 
must remain neutral and should not 
be pulled into a political fight merely 
because its funds are in the same bill 
as the census appropriations. 

The Judiciary's total request 
for FY 2000 is for $4.39 billion in 
obligated funds. The requested 
$342 million increase over FY 99 is 
largely to pay for uncontrollable 
expenses such as rent, annual pay 
increases, and other mandatory costs 
associated with law enforcement, 
defender services, and increased 
security needs. If the Salaries and 
Expenses request of $3.45 billion is 
not fully funded, the following are 
possible: 

■ a refocusing by probation officers 
of their supervision efforts on 
offenders who are the most obvious 
risk to the community, while remain- 
ing offenders receive minimal 
supervision; 

■ a reduced level of drug and 
mental health treatment; 

■ an increase in the average time of 
disposition for civil and bankruptcy 
cases and appeals; 

■ delays in the implementation of 
important new automated systems; 

■ reduction in both public hours in 
clerks' offices and timeliness in 
responding to public inquiries; 

■ shutdown of non-resident visiting 
court facilities, which would mean 
added travel and related costs to 
litigants and could impose signifi- 
cant hardship on citizens in states 
where residents are geographically 
dispersed. 



in FY 2000, approximately $430 
million is requested for Defender 
Services, which represents a 5 percent 
increase in total obligations to cover 
standard pay and inflationary in- 
creases, anticipated growth in criminal 
filings that will increase the number 
of Criminal Justice Act (CJA) repre- 
sentations, and an increase in the low 
hourly rates paid to CJA attorneys. 

"An impending crisis threatens the 
entire criminal justice system," 
Heyburn said. "The crisis is caused 
by the inordinately low hourly rate 
currently paid private panel attor- 
neys in non-capital cases." The 
current rates — $45 for out-of-court 
work and $65 for in-court work — 
often don't cover overhead expenses 
and many judges are reporting that 
they are having difficulty finding 
qualified attorneys to accept CJA 
appointments. 

"To solve this inequity of only one 
small rate increase in 15 years and to 
avert the impending crisis, the Judicial 
Conference requests an increase . . . 
to allow all judicial districts to in- 
crease the hourly rates up to the sta- 
tutorily authorized level of $75 per 
hour," Heyburn said. "We believe that 
the time has come to raise rates to at 
least a minimally acceptable level." 

For the court security program, a 
total of $206 million is requested. 
"Providing an adequate level of 
security to all citizens entering our 
federal courthouses remains an 
ongoing concern of the Judicial Con- 
ference," Heyburn said. "Federal 
courts are among the most vulnerable 
security risks of any facilities in the 
nation." 

For the jurors program, a total of 
$72 million is requested. A four 
percent increase in "juror days" is 
expected in FY 2000. 

Heyburn also told the subcommit- 
tee about the numerous steps the 
Judiciary is taking to economize 
while increasing efficiency. "Know- 
ing the problem Congress faces in 
balancing the budget, the Judiciary is 
doing everything possible to contain 4 



I In- third Branch 



Miinh 1999 



costs," he said. "The ability of the 
courts to handle an ever-growing 
workload with no additional staff in 
either fiscal year 1999 or 2000 is 
dependent upon the potential 
savings and productivity improve- 
ments associated with these initia- 
tives." The highlights of the Judi- 
ciary's cost-saving efforts are con- 
tained in its annual report entitled 
Optimal Utilization of Judicial Resources, 
which can be found on the Judici- 
ary's web site at www.uscourts.gov. 

Finally, Heyburn asked the sub- 
committee to provide fair and ade- 
quate compensation to top govern- 
ment officials in all three branches of 
the federal government. Since 1993, 



these officials have received only a 
modest 2.3 percent pay adjustment. 
"We live in a society where cost-of- 
living adjustments to maintain pur- 
chasing power are a fact of economic 
life," Heyburn said. "I believe that a 
majority of the American public 
supports fair compensation for its 
government's top officials. With that 
in mind, we are hopeful that Congress 
will allow the mechanisms of the 
1989 Ethics Reform Act to work, and 
that all top government officials will 
be provided a COLA in FY 20000." 

Representative Lucille Roybal- 
Allard (D-CA) expressed concern 
about the failure of the White House 
to provide in the General Services 



Administration budget the funds re- 
quired to build vitally needed build- 
ings for the Judiciary. She specifically 
noted that money for a new court 
building in Los Angeles was deleted 
from the request by the White House. 
Mecham strongly urged that she and 
the other members of the committee 
fully fund the Judiciary's request of 
$579 million to build 17 buildings in 
fiscal year 2000. He pointed out that 
for three years in a row, the Clinton 
Administration had failed to request 
money for Judiciary buildings. In 
another appropriation subcommittee 
meeting that same week, Allard had 
raised a similar question with OMB 
Director Jacob Lew. £«^ 



FEGLI, continued from page 1 

Director Janice R. Lachance. Their 
discussion resulted in OPM agreeing 
:o hold the rate increase in abeyance 
: or a year. The Judiciary has and will 
continue to aggressively explore all 
x)ssible solutions to the rate increase. 

For example, upon learning that 
(udge Ann Williams (N.D. 111.), 
president-elect of the Federal Judges 
\ssociation, and Magistrate Judge 
Robert Collings (D. Mass.) would be 
neeting with White House Chief of 
Staff John Podesta, the President's 
Zhief Counsel, Charles Ruff, and 
DMB Assistant Director Michael 
Deich on judicial pay matters, 
Vlecham alerted Williams to the 
:rirical problem for judges posed by 
he increase in their insurance 
premiums. At his urging, she ex- 
panded her agenda at the White 
-louse to include insurance. Ruff was 
iware of the action through conver- 
sations with Chief Judge Proctor Hug 
9 th Cir.) and former federal judge 
ind White House Counsel Abner 
Vlikva. They promised to review the 
situation promptly and to contact 
3PM Director Lachance to be sure 
hat the Judiciary's position was fully 
ronsidered before any final decision 
vas made. 

For historical and statutory 




reasons, Article III judges have 
viewed FEGLI as whole life insur- 
ance that would protect their families 
against untimely death and be used 
as an estate builder. The increase in 
rates will adversely impact Article III 
judges covered by FEGLI, but it is 
particularly hard on senior judges, 
who choose to work when they could 
enjoy retirement, and who now, due 
to age or health, may not be insurable 
by a private insurance carrier. 

In a letter to OPM, Mecham wrote 
that the change in the premium rate 
"imposes an unfair financial penalty 
on voluntary judicial service. Pres- 
ently, senior judges voluntarily 
adjudicate more than 15 percent of 
the federal judicial caseload. This 
steep increase in premium rates 
primarily will affect these judges. As 
a consequence, some of them may be 
forced to retire completely from the 
judicial office and obtain more 



(/. to r.) AO 
Director Leonidas 
Ralph Mecham, 
Judge W. Earl 
Britt, Judge Joyce 
Hens Green and 
Judge Jon Newman 
reviewed the 
Judiciary's position 
prior to their 
meeting with OPM 
Director Lachance. 



lucrative employment in the private 
sector in order to pay the increased 
cost of FEGLI premiums." 

The increase in FEGLI premiums 
adds to the depressing financial pic- 
ture for judges. Repeatedly denied 
cost-of-living adjustments, judges 
have seen their salaries erode so that 
their pay checks already are worth 
$22,000 less today than they were in 
1992. 

Questions also have been raised 
on the need to expand the table age 
bands and the resulting extreme 
increase of the premiums. The 
FEGLI's Employees Life Insurance 
fund's reserves are currently about 
$19 billion and OPM reports sub- 
stantial increases in revenues in 
recent years. OPM has not competi- 
tively bid the FEGLI contract since 
1954, and the program's rates are 
significantly higher than those in the 
private sector. ^v^ 



The Third Branch 



March 1999 






it 

IK 
r 



106 lh Congress Names Subcommittee Members 



Making up for lost time, 
Congress finished naming 
its subcommittee members 
and started its legislative 
work for the first session. 
A listing follows of the sub- 
committees that will con- 
sider some of the major 
legislation affecting the 
Judiciary in the 106 lh Con- 
gress. Italics indicate a new 
member or subcommittee. 

Senate Appropriations 
Subcommittee on Commerce, 
Justice, State and the Judiciary 

Judd Gregg, R-NH, 
chairman 




Judd Gregg, R-NH 



Ted Stevens, R-AK 
Pete V. Domenici, R-NM 
Mitch McConnell, R-KY 
Kay Bailey Hutchison, R-TX 
Ben Nighthorse Campbell, 
R-CO 




Ernest F. HoIIings, D-SC 

Ernest F. Hollings, D-SC, 

ranking minority member 
Daniel Inouye, D-HI 
Frank Lautenberg, D-NJ 



Barbara Mikulski, D- MD 
Patrick Leahy, D-VT 

Senate Appropriations 
Subcommittee on Treasury and 
General Government 




Ben Nighthorse Campbell, R-CO 

The Senate Appropria- 
tions Subcommittee on 
Treasury and General 
Government appropriates 
funds to the General 
Services Administration 
for constructing federal 
buildings, including 
courthouses. The Senate 
Environment and Public 
Works Subcommittee on 
Transportation and 
Infrastructure authorizes 
the expenditure of those 
appropriated funds. 

Ben Nighthorse Campbell, 

R-CO, chairman 
Richard C. Shelby, R-AL 
Jon Kyi, R-AZ 

Byron Dorgan, D-ND, 
ranking minority member 
Barbara Mikulski, D-MD 



Senate Judiciary Subcommittee 
On Administrative Oversight 
and the Courts 



Strom Thurmond, R 

chairman 
MikeDewine, R-OH 
John Ashcroft, K-MO 
Spencer Abraham, R-MI 
Jeff Sessions, R-AL 

Charles Schumer, D-NY, 
ranking minority member 




Charles E. Grassley, R-IA, 

chairman 
Jeff Sessions, R-AL 
Strom Thurmond, R-SC 

Spencer Abraham, (R-MI) 




Charles Schumer, D-NY 

Joseph R. Biden, D-DEL 
Robert G. Toricelli, D-NJ 
Patrick Leahy, D-VT 

Senate Environment and Public 
Works Subcommittee on 
Transportation and Infrastructure 



Robert G. Torricelli, D-NJ 

Robert G. Torricelli, D-NJ, 
ranking minority member 
Russell D. Feingold, D-WI 
Charles Schumer, D-NY 

Senate Judiciary Subcommittee 





Byron Dorgan, D-ND 



Strom Thurmond, R-SC 



George V. Voinovich, R-OH 

George V. Voinovich, R-OH, 

chairman 
John W. Warner, R-VA 
Robert Smith, R-NH 
Christopher S. Bond, R-MO 
James M. Inhofe, R-OK 
Craig Thomas, R-WY 

Max Baucus, DMT, 
ranking minority member 

Daniel Patrick Moynihan, 
D-NY 

Harry Reid, D-NV 4 



4 



hint I'ram It 



March 1999 




* Mr. Dixon is on leave of absence 
as Ranking Subcommittee 
Member during his term of 
service as Ranking Member of the 
Permanent Select Committee on 
Intelligence. 



Max Baucus. D-MT 



Bob Graham, D-FL 
Joseph I. Lieberman, D-CT 

House 

House Appropriations 
Subcommittee on Commerce, 
Justice, State, and the Judiciary 

For fiscal year 2000, the 
subcommittee has begun to 
consider the Judiciary's 
overall budget. A report on 
the House hearing is on 
pagel. 




Jose E. Serrano, D-NY 

House Appropriations 
Subcommittee on Treasury, Postal 
Service, and General Government 




Harold Rogers, R-KY 



Harold Rogers, R-KY, 

chairman 
Jim Kolbe, R-AZ 
Charles H. Taylor, R-NC 
Ralph Regula, R-OH 
Tom Latham, R-IA 
Dan Miller, R-FL 
Zach Wamp, R-TN 

Jose E. Serrano, D-NY, 

ranking minority member 
[ulian C. Dixon, D-CA* 
Alan B. Mollohan, D-WV 
Lucille Roybal-Allard, 
D-CA 



Jim Kolbe, R-AZ, chairman 
Frank R. Wolf, R-VA 
Michael P. Forbes, R-NY 
Anne Northup, R-KY 
Jo Ann Emerson, R-MO 
John E. Sununu, R-NH 



h 


Hll III: 
^^ r f 

' JMMpsS 
» t" " ' 





John E. Peterson, R-PA 

Steny Hoyer, D-MD, 

ranking minority member 
Carrie P. Meek, D-FL 
David E. Price, D-NC 
Lucille Roybal-Allard, D-CA 



and Infrastructure Subcommittee 
on Economic Development, 
Public Buildings, Hazardous 
Materials and Pipeline 
Transportation 

(Formerly the Subcommit- 
tee on Public Buildings 
and Economic Develop- 
ment.) 



Eleanor Holmes Norton, 
D-DC 

Ronnie Shows, D-MS 
James L. Oberstar, D-MN, 
(ex officio) 

House Judiciary Subcommittee 
On Courts And Intellectual 
Property 





Howard Coble, R-NC 



Bob Franks, R-NJ 



Bob Franks, R-NJ, chairman 
John Cooksey, R- LA, vice- 
chair 
Thomas Ewing, R-IL 
Stephen LaTourette, R-OH 



Howard Coble, R-NC, 

chairman 
F. James Sensenbrenner, 

R-WI 
Elton Gallegly, R-CA 
Bob Goodlatte, R-VA 
William L. Jenkins, R-TN 
Edward A. Pease, R-IN 
Christopher B. Cannon, 

R-UT 
James E. Rogan, R-CA 
Mary Bono, R-CA 




Bob Wise, Jr., D-WV, 



Steny Hoyer, D-MD 



J.C. Watts, Jr., R-OK 
Bud Shuster (ex officio) 

Bob Wise, Jr., D-WV, 
ranking minority member 



Howard L. Berman, D-CA, 
ranking minority member 
John Conyers Jr., D-MI 
Rick Boucher, D-VA 
Zoe Lofgren, D-CA 
William D. Delahunt, D-MA 
Robert Wexler, D-FL 



Vie Third Branch 



March 1999 



ABA Task Force on Federalization of Criminal Law 



is 

it 



Calling Congress' federalization of 
crimes traditionally handled in state 
courts "misguided and ineffectual," 
an American Bar Association Task 
Force reports that "state governments 
are neither incapable nor unwilling to 
exercise their traditional responsibil- 
ity to protect the lives and property 
of citizens." The report released last 
month agreed with Judiciary con- 
cerns that moving additional crimes 
into federal court places demands on 
an already strained federal court 
system and threatens the quality of 
essential federal justice. 

The ABA formed the Task Force 
on the Federalization of Criminal Law 
in response to what it termed wide- 
spread concerns over the number of 
new federal crimes being created an- 
nually by Congress. The 17-member 
task force was asked to determine if 
there has been an increase in federal 
crimes that duplicate state crimes, and, 
if so, whether that development ad- 
versely affects the proper allocation of 
responsibility between the national 
and state governments for crime pre- 
vention and law enforcement. Mem- 
bers included task force chair former 
Attorney General Edwin Meese III, 
Judge Jon O. Newman (2 nd Cir.), for- 
mer Senator Howell T. Heflin, former 
Representative Robert W. Kasten- 
meier, several former U.S. attorneys, 
and members from academia, law 
enforcement and private practice. 

The task force report identified a 
trend toward federalization and 
counseled against its continuation. 
The task force found that more than 
40 percent of the federal criminal pro- 
visions enacted since the Civil War 
have been enacted since 1970. It also 
tallies an estimated 1,000 bills dealing 
with criminal statutes that were intro- 
duced in the 105th Congress. The 
task force report cautioned that 
"Congress ought to reflect long and 
hard before it enacts legislation which 
puts federal police in competition 
with the states for the confidence of 



its citizenry and limited law enforce- 
ment resources." 

In his 1998 Year-End Report on the 
judiciary, Chief Justice William H. 
Rehnquist said the trend to federalize 
crimes traditionally handled in state 
courts "not only is taxing the 
Judiciary's resources and affecting its 
budget needs, but it also threatens to 
change entirely the nature of our 
federal system. The pressure in 
Congress to appear responsive to 
every highly publicized societal ill or 
sensational crime needs to be bal- 
anced with an inquiry into whether 
states are doing an adequate job in 
these particular areas and, ultimately, 
whether we want most of our legal 
relationships decided at the national 
rather than local level." 

The point, according to the task 
force report, is that "an increase in the 
volume of federal criminal cases, 
driven primarily by additional cases 
that could as well be tried in state 
courts, diminishes the separate and 
distinctive role played by federal 
courts." The role of the federal courts 
is not to simply duplicate the func- 
tions of the state courts. Although 
many of the newly federalized laws 
may be rarely used, their presence on 
the books presents prosecutorial 
opportunities that may be exploited at 
any time in the future. 

There are many other adverse 
implications of the federalization of 



criminal law that the report treats, 
including the impact for the federal 
prison system, local law enforce- 
ment efforts, on citizen perception 
of state and federal responsibility, 
and on the application of limited 
federal resources. Where federal and 
state laws exist for the same crime, 
a citizen prosecuted for a state crime 
is subject to a set of consequences 
appreciably different from one pro- 
secuted for a federal crime, and sen- 
tencing options — including the 
length of sentence and location and 
nature of confinement — as well as 
opportunities for parole and pro- 
bation, will differ greatly. 

The task force makes it clear it 
has no concerns when Congress ad- 
dresses crimes intruding upon fe- 
deral functions, harming entities or 
personnel acting in a federal capa- 
city; when it addresses offenses 
committed on sites where the federal 
government has territorial responsi- 
bility, or when it addresses matters 
of international crime. The task 
force agreed on a guiding principle 
concerning the creation of federal 
crime: "To create a federal crime, a 
strong federal interest in the matter 
should be clearly shown, that is, a 
distinctly federal interest beyond 
the mere conclusion that the 
conduct should be made criminal 
by some appropriate governmental 
entity." 

The report is available at http:// 
www.abanet.org/media/. #-^ 



ABA Supports Judiciary on Key Issues 



The ABA's House of Delegates, at 
its mid-year meeting, showed its 
support for the Judiciary through a 
number of resolutions addressing 
critical issues. 

■ Congress should de-link congres- 
sional pay from judicial pay and 
make judicial salaries subject to the 
same periodic and automatic cost- 
of-living adjustments granted career 
federal employees. 



■ Public officials should refrain 
from threatening judicial im- 
peachment proceedings because 
of disagreement with isolated 
decisions of a federal judge. 

■ The President should promptly 
advance nominees for current va- 
cancies for federal judicial posi- 
tions and the Senate should hear 
and vote on those nominations in 
an expeditious manner. £«^ 



The Third Branch 



March 1999 



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Legislation Revisits Issues Raised in Last Congress 



If legislation introduced so far in 
the first session of the 106 th Congress 
looks a lot like legislation from the 
105 th Congress, there is a good 
reason. Many key bills from the last 
Congress were either left in commit- 
tee or stranded on the House or 
Senate floor without a final vote and 
some, like the Bankruptcy Reform 
Act, have been reintroduced for 
another try in this session. Other 
bills are perennial favorites, such as 
comprehensive crime bills, and 
nearly every Congress sees a version 
introduced, amended, and passed in 
some form. One topic, however, that 
will be peculiar to the 106 th Congress 
will be the Year 2000 (Y2K) issue. 
Several Y2K bills that may affect the 
Judiciary already have been intro- 
duced. 



Crime Bills 

S. 9, the Safe Schools, Safe 
Streets, and Secure Borders Act Of 
1999, was introduced by Senator 
Thomas A. Daschle (D-SD). Senator 
Patrick Leahy (D-VT), one of the 
bill's co-sponsors, called S. 9 an 
updated version of a 1998 compre- 
hensive crime bill. Juvenile crime 
also is on the legislative agenda with 
the introduction of S. 254, the 
Violent and Repeat Juvenile 
Offender and Rehabilitation Act 
of 1999, introduced by Senator 
Orrin Hatch (R-UT), chairman of the 
Senate Judiciary Committee. While 
no major comprehensive juvenile 
crime bill has been introduced by 
the House leadership, the House 
[udiciary Committee held two days 
of hearings on juvenile crime in 
early March and legislation is 
expected later this spring. 

Congress is once again con- 
sidering proposals for a constitu- 
tional amendment on crime victims' 
rights, such as S. J. Res. 3, intro- 
duced by Senator Jon Kyi (R-AZ). 



S. 9, the Safe Schools, Safe 
Streets, and Secure Borders Act 
of 1999, provides a statutory alter- 
native to a victims' rights amend- 
ment. 

Representative Sheila Jackson Lee 
(D-TX) has introduced H.R. 77, the 
Hate Crimes Prevention Act of 
1999, which would provide for 
federal prosecution of a signifi- 
cant number of crimes that are 
traditionally prosecuted in the state 
courts. 

Speaking to an issue raised by 
the U.S. Sentencing Commission in 
1997, Senator Spencer Abraham 
(R-MI) addressed the punishment 
disparity between crack and powder 
cocaine in his bill S. 146, the Powder 
Cocaine Sentencing Act of 1999. 
Abraham's bill, already referred 
to the Judiciary Committee, would 
reduce the disparity between punish- 
ments for crack and powder cocaine 
by increasing the penalties for 
powder, lowering the amount 
necessary to trigger a five-year 
mandatory minimum sentence for 
possession of powder cocaine from 
500 grams to 50 grams, and the 
amount necessary to trigger a 
10-year mandatory minimum from 
five kilograms to 500 grams. The 
U.S. Sentencing Commission re- 
commended that the disparity 
between crack and cocaine punish- 
ments be mitigated by increasing the 
amounts necessary to trigger a 
mandatory sentence for possession 
of crack. 



Bankruptcy 

H.R. 833, the Bankruptcy Reform 
Act of 1999, was introduced in 
February by Representative George 
W. Gekas (R-PA), chair of the 
Judiciary Subcommittee on Commer- 
cial and Administrative Law. 
Through a needs-based system, the 
legislation would ensure that high- 



income filers who could repay some 
of what they owe are required to do 
so. The bill would authorize 18 new 
bankruptcy judgeships and extends 
several temporary bankruptcy 
judgeships. Senator Charles E. 
Grassley (R-IA), chair of the Senate 
Judiciary Subcommittee on Adminis- 
trative Oversight and the Courts, 
also is expected to introduce bank- 
ruptcy reform legislation. 

Y2K 

A number of bills that would 
limit lawsuits arising from computer 
program failures in the year 2000 
have been introduced. Generally, 
the bills require plaintiffs and 
defendants to attempt a solution to 
a Y2K computer problem before a 
suit can be filed. The bills establish 
national procedures in state and 
federal courts for Y2K claims and 
limit defendants' exposure to such 
suits, in part, by capping punitive 
damages. In addition, they require 
certain information to be included 
in a Y2K complaint, encourage the 
use of alternative dispute resolution, 
and expand federal jurisdiction over 
Y2K class actions. H.R. 775, Year 
2000 Readiness and Responsibility 
Act, was introduced in the House by 
Thomas M. Davis (R-VA). S. 96, the 
Y2K Act, was introduced in the 
Senate by Senator John McCain (R- 
AZ) and already has been reported 
favorably by the Senate Committee 
on Commerce, Science, and Trans- 
portation. S. 461, the Year 2000 
Fairness and Responsibility Act 
was introduced in the Senate by 
Senators Orrin G. Hatch (R-UT) and 
Dianne Feinstein (D-CA). A hearing 
on the bill was held March 1, at 
which the Department of Justice 
voiced its concerns with S. 461 and 
the substantial restrictions it may 
place on litigants' ability to pursue 
legitimate claims. &^ 



The Third Branch 



March 1999 



it 

IE 
I 

r 



JUDICIAL MILESTONES 



Appointed: William A. Fletcher, 

as U.S. Court of Appeals Judge 
for the Ninth Circuit, February 1 . 

Appointed: David O. Carter, as 

U.S. District Judge for the Central 
District of California, January 5. 

Appointed: Lawrence J. O'Neill, 

as U.S. Magistrate Judge for the 
Eastern District of California, 
January 26. 

Appointed: Sally A. Shushan, as 

U.S. Magistrate Judge for the 
Eastern District of Louisiana, 
February 1. 

Appointed: Michael J. Watanabe, 

as U.S. Magistrate Judge for the 
District of Colorado, February 12. 

Appointed: Jerry W. Venters, as 

U.S. Bankruptcy Judge for the 
Western District of Missouri, 
February 1. 

Elevated: Judge James T. Giles, 

to Chief Judge, U.S. District 
Court for the Eastern District of 
Pennsylvania, January 1, suc- 
ceeding Judge Edward Cahn, 
January 1. 

Elevated: Judge Paul R. Matia, to 

Chief Judge, U.S. District Court 
for the Northern District of Ohio, 
February 27, succeeding Judge 
George W. White. 

Elevated: Judge William G. 
Young, to Chief Judge, U.S. 
District Court for the District of 
Massachusetts, January 2, suc- 
ceeding Judge Joseph L. Tauro 

Senior Status: Chief Judge 
Richard H. Battey, U.S. District 



Court for the District of South 
Dakota, January 1. 

Senior Status: Judge Norma L. 
Shapiro, U.S. District Court for 
the Eastern District of Pennsylva- 
nia, December 31 . 

Senior Status: Judge Stanley 
Sporkin, U.S. District Court for 
the District of Columbia, Febru- 
ary 12. 

Senior Status: Chief Judge 
George W. White, U.S. District 
Court for the Northern District of 
Ohio, February 26. 

Retired: Judge Benjamin F. 
Gibson, U.S. District Court for 
the Western District of Michigan, 
January 31 . 

Resigned: Bankruptcy Judge 
Karen M. See, U.S. Bankruptcy 
Court for the Western District of 
Missouri, January 31. 

Deceased: Retired Associate 
Justice Harry A. Blackmun, 

Supreme Court of the U.S., March 
4. 

Deceased: Bankruptcy Judge 
Alfred C. Hagan, U.S. Bank- 
ruptcy Court for the District of 
Idaho, January 20. 

Deceased: Senior Judge 
Mary Johnson Lowe, U.S. Dis- 
trict Court for the Southern 
District of New York, February 

27. 

Deceased: Bankruptcy Judge 
James E. Yacos, U.S. Bankruptcy 
Court for the District of New 
Hampshire, December 30. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



JUDICIAL BOXSCORE 




As of March 1,1999 




Courts of Appeals 
Vacancies 


17 


Nominees 


7 


District Courts 




Vacancies 


43 


Nominees 


12 


Court of International Trade 




Vacancies 


1 


Nominees 





Courts with 




"Judicial Emergencies" 


27 


For more information on vacancies in 
the federal ludiciary visit our website 
at www.uscourts.gov. 



The Third Branch 



March 1999 






IBA Survey Shows Belief 
n Justice System 

The American public believes its 
.istice system is the best in the 
yorld, despite its flaws, according to 
urvey results released by the 
American Bar Association. The 
urvev on the perception of the U.S. 
astice system asked 1,000 respon- 
lents across the country what they 
new about their justice system and 
heir attitudes towards it. In an 
ssessment of the justice system and 
ther U.S. institutions, half of the 
espondents showed strong confi- 
ence in the U.S. Supreme Court, 
mile a third felt strongly confident 
i the other federal courts. Just 18 
ercent showed strong confidence in 
!ongress. But the media fared the 
rorst. Only eight percent of those 
nrveyed reported strong confidence 
i them. 

The study found that "the more 
nowledge people have about the 
istice system, the greater their 
Dnfidence in the justice system 
verall. . . " However, the survey 
iso indicated that knowledge of the 
istice system is uneven. Only 39 
ercent could identify the three 
ranches of government. And while 
? percent knew that anyone accused 
f a crime had the right to counsel, 
nly two-thirds knew a criminal 
efendant is innocent until proven 
Liilty. 

Of the survey participants, 78 
ercent believed the jury system was 
te most fair way to determine the 
uilt or innocence of an accused 
erson. However, 68 percent be- 
eved lawyers spend too much time 
?tting criminals released on techni- 
ilities, and 99 percent strongly felt 
lat wealthy people or companies 
Ften wear down their opponents by 
ragging out legal proceedings. As a 
suit, 78 percent felt court takes too 
mg and 77 percent said it was too 
)stly. 



Strongly Agree 
/Agree 



Neither Agree 
Nor Disagree 



Strongly Disagree 
/Disagree 



It takes too long for courts 








to do their job. 


78 


9 


12 


Juries are the most 


fla 




fl 


important part of 








our judicial system. 


69 


10 


21 










Generally, court 








personnel are courteous, 








helpful and polite. 


61 


19 


19 




Courts use information 








technology effectively. 


43 


29 


26 




Court decisions should 






• 


reflect the majority of 








public opinion 





7 


57 




Courts are effective in 








informing the public about 








court procedures and 




15 




services. 


28 


56 




In most cases, the courts treat 








all ethnic and racial groups 








the same. 


39 


14 


47 



Source: ABA, Perceptions of the U.S. Justice System, 1999, M/A/R/G® Research 



Eighty-nine percent of the respon- 
dents had participated in court pro- 
ceedings, a considerable increase 
over the 43 percent counted in 1978 
surveys. More men than women said 
they were knowledgeable about the 
justice system, and registered voters 
also believed themselves to be 
knowledgeable. People who knew 
the least about the justice system 
tended to be non-white, female, in 
the 18-29 age group, not highly 
educated, not registered to vote, and 
from lower income households. 
Those indicating interest in learning 
more appeared to be younger, 
middle income, non-white and 
college educated. Slightly over half 
of the survey respondents felt courts 
were not effective in informing the 
public about court procedures and 
services, although 57 percent of 
respondents said serving on a jury 



was an extremely or very important 
source of information. Almost all 
respondents thought schools should 
be required to teach about the justice 
system. 

Most people learned about the 
justice system in school, and 67 
percent said they learned through 
personal experience, with half the 
people saying jury duty was consid- 
ered an important part of this 
experience. Who did they want to 
teach them about the justice system? 
Seventy-five percent of the respon- 
dents wanted judges. 

Of the survey participants, 54 per- 
cent either strongly agreed or agreed 
that most judges are extremely well 
qualified for their jobs. Only 14 
percent strongly agreed or agreed 
that judges are not paid enough. 

The report is available at http:// 
www.abanet.org/media. £v^ 



The Third Branch 



March 1999 



INTERVIEW 



it 

'C 

IK 



Defenders Have Committee Support 



An interview with Judge Robin J. 
Cauthron, chair of the Judicial Confer- 
ence Committee on Defender Services. 



Q # In his 1998 Year-End Report, 
• the Chief Justice urged 
Congress to give serious consider- 
ation to paying all panel attorneys 
the $75 rate. Why is this an impor- 
tant issue? 

A. In most districts Criminal 
• Justice Act (CJA) private 
panel attorneys have received only 
one $5 increase to the $60 in-court/ 
$40 out-of-court hourly rates that 
were set more than 14 years ago. 
Since the purchasing power of 
these rates has eroded by nearly 35 
percent, it is not surprising that often 
the rates do not even cover an 
attorney's overhead expenses. While 
the Judicial Conference has autho- 
rized the alternative $75 rate for all 
but one judicial district, Congress 
has allowed us to implement the 
higher amounts across-the-board in 
only eight districts, and partially in 
eight others. As the Chief Justice 
stated in his Year-End Report, the 
Judiciary is responsible for ensuring 
that defendants who cannot afford 
counsel in criminal cases are pro- 
vided with attorneys capable of 
vindicating their rights. Our inability 
to pay fair compensation to the 
lawyers we appoint threatens our 
ability to fulfill this critical responsi- 
bility, and indeed, judges are now 
reporting that the low hourly rates 
are compromising their ability to 
find qualified attorneys to represent 
defendants. 



Q 



. Is there support outside the 
• Judiciary for this increase? 



A. I have been extremely 
• gratified by the recognition 
from outside the Judiciary of the 
critical importance of the Judiciary's 
request for the $75 CJA hourly 
rate. Our request has been endorsed 
not only by private bar associations 
(including the American Bar 
Association, the National Associa- 
tion of Criminal Defense Lawyers, 
and the National Legal Aid, and 
Defender Association) but also 
by the Department of Justice. 
The Department's support is 
particularly significant. All three 
components of the federal criminal 
justice system — courts, prosecution, 
and defense — agree that compensa- 
tion for defense counsel is inad- 
equate and threatens the proper 
functioning of the system. Hopefully, 
Congress will be persuaded to 
provide funding needed to imple- 
ment this long-overdue adjustment. 
Private associations of Judiciary 
officials also have expressed support 
for this initiative. The Federal Judges 
Association, the Federal Magistrate 
Judges Association, and the Associa- 
tion of Federal Defenders endorsed 
the $75 rate to ensure the appoint- 
ment of qualified and experienced 
counsel. 



Q # Over the last few years, 
• Congress has closely scruti- 
nized the federal defender program. 
What have been its concerns? 

A. Congress has expressed 
• concern about the growth in 
Defender Services spending. In 
particular, Congress wanted to 
know why costs were increasing at 
a higher rate than the rise in 
caseload. Judiciary studies under- 
taken to address these concerns 




Judge Robin J. Cauthron (W.D. Okla.) 



revealed that, overall, defender 
services costs are in line with the 
increase in the number of repre- 
sentations, the growing proportion 
of the more costly capital prosecu- 
tions and capital habeas represen- 
tations, and the costs incurred in a 
few extraordinarily expensive 
representations each year. Be- 
tween fiscal years 1993 and 1999, 
the number of appointments under 
the Criminal Justice Act grew 
from 84,000 to an anticipated 
108,500. In fiscal year 2000, it is 
projected that these appointments 
will number over 114,700. As the 
workload of the Defender Services 
Program increases, the Judiciary will 
continue to look for ways to contain 
costs while providing effective 
representation as required by the 
Constitution and congressional 
mandates. 



Q # What is the Judiciary doing 
• to contain costs and en- 
sure that the program is well man- 
aged? 



A: 



10 



Although the Judiciary 
cannot control the workload J 



hird tirumh m March 1999 



f the Defender Services Program, 
i recent years we have energetically 
nd creatively sought ways to make 
he most effective use of the funds 
hat Congress provides for the 
TOgram. Some of these include 
eveloping a comprehensive 
erformance measurement system 
3 better assess the value received 
">r the Defender Services Program 
ollar; routinely assessing the 
tanagement of federal defender 
rganizations to help the offices 
nprove the effectiveness and 
fficiency of their operations; imple- 
lenting budgetary procedures to 
Dntrol federal defender organiza- 
on spending; conducting a pilot 
roject to explore the benefits of 
sing a supervisory attorney to assist 
rith administering the panel of 
rivate attorneys accepting court 
ppointments; and replacing the out- 
\oded system for making compen- 
ition payments to private panel 
ttorneys and expert service provid- 
rs with a more efficient payment 
^stem. 



2. What part will the new CJA 
• improved payment system 
lay in cost containment and man- 
cement? 

A # The new CJA Panel Attorney 

JL • Payment System will pro- 
ide courts with on-line, consistent, 
)tal cost summaries not previously 
mailable for CJA panel attorney 
^presentations. The new system 
jllects and aggregates all represen- 
ition costs paid for an individual — 
icluding payments to attorneys and 
<perts and for transcripts and travel 
<penses. At any point in the pro- 
;ss, individual courts will have 
:cess to locally generated reports or 
rt-line screens reflecting accumu- 
ited cost data for representations in 
leir districts. This information can 
ssist the judicial officer's voucher 
;view for individual representations 
nd provide the court with informa- 



tion to use in developing case 
budgets for large, complex cases. The 
new system also provides added 
internal controls to reduce the 
possibility of duplicate payments 
and other opportunities for fraudu- 
lent activities. 

The new system will permit en- 
try of case details from the very 
beginning of the case when CJA 
panel counsel is appointed and 
also will capture important new 
data elements not previously col- 
lected — such as those associated 
with case disposition. At the same 
time, data elements such as the 
docket number and offense code 
will be consistent with those used 
in other Judiciary information 
systems. This will make it possible 
for the AO to perform additional 
data analyses without requiring 
court personnel to enter substantial 
amounts of information separately 
into different systems. These refine- 
ments will assist the AO in pro- 
jecting and explaining national CJA 
panel costs. 



Q 



. In the last year, several new 
• federal defender offices 
have been authorized to open 
around the country. What is the 
Judicial Conference position on the 
establishment of these offices and 
what is the status of the overall 
program? 

A # Four new federal defender 
• organizations, covering 
five judicial districts (Indiana- 
Northern, New York-Northern 
and Vermont [combined], South 
Dakota, and Utah), will open 
sometime this year. When they do, 
we will have a total of 67 federal 
defender organizations covering 
78 districts, a growth of 32 districts 
(70 percent) in the 1990s. The 
Judicial Conference fully supports 
the opening of new defender 
offices. Federal defender organiza- 
tions provide high quality represen- 



tation because their attorneys are 
federal criminal law specialists who 
receive regular training and under- 
stand the intricacies of the sentencing 
process. They also serve as a re- 
source to CJA panel attorneys and 
relieve courts of much of the admin- 
istrative burden related to the 
appointment and compensation of 
counsel. As a matter of fact, in a 
survey conducted of district court 
chief judges in 1997 and 1998, 84 of 
the 88 respondents (over 95 percent) 
rated the quality of legal services 
provided by federal defender 
organizations as "excellent" or "very 
good." 



Q # Looking to the future, what 
• long-range planning and 
budgeting initiatives is the commit- 
tee pursuing for the defender 
services program? 

A. The committee always has 
• deemed planning for the 
future of the Defender Services 
program as one of its core re- 
sponsibilities. All the initiatives 
we are pursuing, including the 
increase in the rate of pay for 
CJA panel attorneys and the cost- 
containment activities, advance 
the goals and objectives of the 
Defender Services program as 
articulated in the Long Range Plan 
for the Federal Courts. Recently, 
however, the Committee on De- 
fender Services decided to modify its 
approach to long-range planning and 
budgeting in response to a request 
from the Administrative Office and 
the Judicial Conference that commit- 
tees prepare for the possibility of 
increasingly tight budgets in the 
coming years. The Committee on 
Defender Services has formed a 
Subcommittee on Long Range 
Planning and Budgeting, which is 
exploring ways to set program 
priorities linked to budget projec- 
tions for up to five years into the 
future. ^^ 



11 



The Third Branch 



March 1999 



i! 



"Marching Toward Justice" 
Exhibit Unveiled at AO 

An 800-square foot exhibit tracing 
the black experience in America from 
early colonization through the 1950s 
was on display in February at the 
Thurgood Marshal Federal Judiciary 
Building. Opening ceremonies on 
February 3 drew such luminaries as 
Rosa Parks; Cecilia Marshall, widow 
of the late Supreme Court justice; 
and President Bill Clinton. 

Titled, Marching Toward Justice: 
the History of the 14 th Amendment, 
the exhibit was commissioned by the 
Damon J. Keith Law Collection of 
African- American Legal History at 
Wayne State University in Detroit. 
Judge Keith (6 th Cir.), who was 
instrumental in bringing the exhibit 
to Washington, served as master of 
ceremonies for the opening. In 
photographs, drawings, and repro- 
ductions of documents, the exhibit 
covers such topics as slavery, black 




President Bill Clinton spoke at the opening of the Marching Toward Justice exhibit joined on the 
dias by (left to right) Judge Damon Keith; Ms. Rosa Parks; Mrs. Thurgood Marshall; Irving D. 
Reid, President of Wayne State University; H. Patrick Swygert, President of Howard 
University; and AO Director Leonidas Ralph Mecham. 



soldiers in the Civil War, the Emanci- 
pation Proclamation, and ratification 
of the 14 th Amendment in 1868. It 
also highlights subsequent historical 
developments, such as the Recon- 
struction Era and the role of 



Thurgood Marshall, Charles Hous- 
ton, and other African- American 
lawyers in making the 14 th Amend- 
ment a reality. The exhibit will travel 
to New York City following its 
display in Washington. £^ 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PPJVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

PAID 

U.S. COURTS 
PERMIT NO. G-18 



FIRST CLASS 



U.S. Government Printing Office 1998-418-610-80010 



THE 



THIRD 



p£ o«tu 



-"BRANCH 



toPosrre 



Chief Justice Urges Congress to Release Judiciary 



On March 17, 1999, Chief Justice 
Nilliam H. Rehnquist sent the following 
ztter to congressional leadership, induci- 
ng House and Senate leaders of the 
udiciary and appropriations committees. 
Several have replied favorably. 

"I am writing to urge that appro- 
bations for the federal Judiciary 
>romptly be released from the June 
5, 1999, cutoff date that is currently 
>rovided in our appropriations act. 
)epartments of Commerce, Justice, 
nd State, the Judiciary and Related 
Agencies Appropriations Act, 1999, 
\L. 105-277, title VI, sec. 626. 

It is universally recognized that this 
tone 15 cutoff of the three cabinet de- 
•artments and the Judiciary was en- 
cted to ensure that the legislative and 
xecutive branches will come to an 
greement prior to the end of this fis- 
al year on the proper means of con- 
tacting the 2000 census. The judicial 
ranch should not, and does not, have 
ny role in this debate, as the resolu- 
ion of this issue very properly rests 
/ith the political branches of govern- 
nent. The Judiciary's appropriations 
hould, therefore, also be free from 
ntanglement in this political dispute. 

If funding for the Judiciary were to 
e cut off because of its inclusion in 
he June 15 cutoff date, every sector of 



the judicial branch will be affected, 
including probation and pretrial ser- 
vices officers who supervise 120,000 
released criminals and those accused 
of crimes. The public will be denied 
the services and the protections that 
they expect and to which they are en- 
titled. Respect for a separate and co- 
equal branch of government suggests 
the Judiciary be assured it can con- 
tinue its full level of operations at the 
funding level already approved. 

Three years ago in fiscal year 1996, 
a similar political situation obtained 
and resulted in funding lapses 
throughout much of the government, 
including initially the Judiciary. Con- 
gress quickly came to recognize the 
inappropriateness of freezing funds 
for the courts, however, and passed a 
special free-standing appropriation 
for the Judiciary two months before 
the impacted executive branch agen- 
cies were funded for the full fiscal year. 
In the same spirit which has motivated 
that action, I urge in the strongest 
possible terms that funding for the 
Judiciary quickly be made available 
for the remainder of this fiscal year." 

Sincerely, 



Justice Harry A. Blackmun Laid to Rest pg. 4 

Is There a COLA on the Horizon? pg. 5 

Federal Courts Report Record Caseload pg. 5 



Newsletter 
of the 
Federal 




Vol. 31 
Number 4 
April 1999 



Judicial Conference 
Seeks New Judgeships, 
Adequate Compensation 

Spurred by increasing 
caseloads and the rapidly declin- 
ing value of judicial salaries, the 
Judicial Conference last month 
voted to ask Congress to create 
new judgeships and to adjust the 
pay of the President, judges, 
members of Congress, and senior 
executive branch officials. 

In agreeing to vigorously seek 
an annual pay adjustment for 
government leaders, the Confer- 
ence also called for an easing of 
the pay compression for officials 
in all three branches of govern- 
ment by supporting an increase 
in the President's salary. The 
President's salary ($200,000 a 
year) has not changed in the past 
30 years, and any change that 
were to occur would be barred by 
Article II of the Constitution from 
affecting the current President. 
However, if the President's salary 
is not adjusted before January 20, 
2001, it will remain fixed at least 
until the next presidential oath of 
office on January 20, 2005. 

Between 1789 and 1987 the 
salaries of the Vice President, 
Speaker of the House, and Chief 
Justice have varied between 16 

See Conference on page 2 



it 



Conference continued from page 1 

and 58 percent of the President's 
salary. Currently they are 88 percent 
of the President's salary. The prob- 
lem of salary compression also 
means that some senior government 
officials are paid nearly as much and 
in some cases more than judges. 
Since 1969, inflation has gone up 100 
percent more than the growth in 
judges' salaries over the same time 
period. Each judge's annual salary is 
worth about $22,000 less today than 
it was in 1992. 

At its biannual meeting, the 
Conference also agreed to transmit to 
Congress a request for an additional 
seven permanent and four tempo- 
rary judgeships in the courts of 
appeals and 33 permanent and 25 
temporary district judgeships. The 69 
judgeships requested is up from the 
53 judgeships requested two years 
ago. The Conference also will ask 
Congress to convert 10 existing 
temporary judgeships to permanent 
positions in the district courts. New 
judgeships were last created in 1990. 
Since then, appeals filings have 
climbed by more than 30 percent and 
the number of cases filed in the 
district courts has increased by more 
than 20 percent. 

In addition, in recognition of 
congressional interest in judicial 
vacancies, for the first time the 
Conference used a process for 
evaluating the workload situation in 
district courts with low weighted 
caseloads where it may be appropri- 
ate to recommend not filling or 
eliminating a vacant judgeship. A 
similar process was used for courts 
of appeals, but none of the courts 
subject to the Conference standards 
met the criteria. As a result, the 
Conference recommended that a 
single existing or future vacancy not 
be filled in four districts: the District 
of Delaware, the District of Colum- 
bia, the District of Wyoming, and the 
Southern District of West Virginia. 
Presently, only the District of Colum- 



bia has a judicial vacancy. There are 
three vacant positions on the court. 
In determining which courts may 
be suitable for such a recommenda- 
tion, the Conference Committee on 
Judicial Resources first identified 
district courts where the per judge- 
ship weighted filings over the last 
three years would be below 365 with 
one fewer judgeship. The status of 
each court will be reviewed as part 
of the regular biennial survey of 
judgeship needs. 

In other action, the Conference 

■ Voted to oppose the provisions 
expanding federal court jurisdiction 
over Y2K class actions in bills (S. 96, 
S. 461, and H.R. 775) currently under 
consideration by the 106 th Congress. 
Eliminating the amount in contro- 
versy and permitting minimal 
diversity for Y2K class actions in 
federal court could be expected to 
shift most of this litigation into 
federal court. Federalization of class 
actions would deprive the judicial 
system of the contributions that state 
courts would otherwise make in 
meeting the substantial burdens that 
Y2K litigation may impose. One of 
the primary objectives of this legisla- 
tion is to facilitate the resolution of 
Y2K claims, and this shift of class 
action litigation holds the potential 
for overwhelming the federal courts, 
resulting in substantial costs and 
delays. In addition, the proposed 
Y2K class action amendments are 
inconsistent with the objective of 
preserving the federal courts as 
tribunals of limited jurisdiction and 
the reality that the federal courts are 
staffed and supported to function as 
courts of limited jurisdiction. 

■ Received a report on the impend- 
ing cut-off of all Judiciary appropria- 
tions on June 15, 1999. When Con- 
gress and the President agreed on 
the Commerce, State, Justice, the 
Judiciary, and Related Agencies 
appropriations bill for fiscal year 
1999, they provided sufficient funds 



\<>r operations only until June 15. 
Because Congress and the Adminis- 
tration could not reach an agreement 
on the upcoming census, only partial 
funding was provided for the 
Department of Commerce, which 
administers the census. The 
Judiciary's funding is contained in 
the same bill. While the Court has 
ruled in the census matter, the 
dispute does not appear to be 
resolved. As a result, judicial branch 
funding is trapped in a disagreement 
between the Democrats and Republi- 
cans in Congress and the White 
House. As a separate, independent 
branch of government, the Judiciary 
should not be caught in the middle 
of a political dispute between the 
other two branches. Unless the 
Judiciary is removed from this 
dispute and funded through the 
remainder of the fiscal year, funds 
appropriated to operate the federal 
court system will run out on June 15. 

■ Adopted a resolution calling for 
immediate necessary action to 
preserve the existing relationship 
between judges and the Federal 
Employees Group Life Insurance 
(FEGLI) program. The resolution 
states that administrative action by 
the Office of Personnel Management 
effectively doubles the FEGLI 
premiums of hundreds of Article III 
judges ages 70 and over. This action 
poses a serious threat to the financial 
security of the families of sitting 
judges and the future stability of the 
Judiciary, since many judges have 
reasonably relied on FEGLI as the 
keystone of their financial and estate 
planning. It could destroy the senior 
judges system. 

■ Endorsed the use of technologies 
in the courtroom subject to the 
availability of funds and priorities 
set by the Conference Committee on 
Automation and Technology. In 
addition, the Conference urged 
courtroom technology — including 
video evidence presentation systems, 
videoconferencing systems, and 



The Third Branch m April! 999 



lectronic methods of taking the 
?cord — be considered as necessary 
id integral parts of courtrooms 
ndergoing constmction or major 
novation and that these technolo- 
ies be retrofitted into existing 
mrtrooms or those undergoing 
terations as appropriate. 

Voted to continue to support the 
forts of its Committees on Codes of 
onduct and Financial Disclosure to 
iucate and inform judges of their re- 
lsal responsibilities in lieu of en- 
gaging all courts to maintain in the 
erk's office a recusal list for each 
idge that would be available to liti- 
ints upon written request. Although 
le Conference did not mandate use 
: recusal lists, information about 
lem will be distributed nationwide 



so that judges can determine individ- 
ually how best to proceed. Relevant 
Judicial Conference committees 
already have enhanced education 
and training in an attempt to ensure 
that judges are aware of their recusal 
responsibilities and are developing 
mociel checklists for judges to use in 
preparing recusal lists that can be 
used to identify conflicts. 

■ Agreed to amend the Travel 
Regulations for United States Justices 
and Judges to add a requirement that 
non-case related official travel be re- 
ported to the appropriate chief judge. 
Senator Charles E. Grassley (R-IA) 
had held various pieces of judicial 
legislation in his Judiciary Subcom- 
mittee on Administrative Oversight 
and the Courts until the Judiciary 



agreed that judges would make 
travel reports in the same manner as 
members of Congress. 

■ Agreed to transmit to Congress 
proposed legislation to create 24 new 
bankruptcy judgeships. New bank- 
ruptcy judgeships last were estab- 
lished in 1992. The number of bank- 
ruptcy filings has increased by nearly 
500,000 from 1992 to 1998. Two years 
ago only 18 judgeships were re- 
quested. 

■ Elected to the Board of the Federal 
Judicial Center: Judge Robert M. 
Parker (5 th Cir.), to replace Judge 
Bruce Selya (1 st Cir.); and Judge 
William H. Yohn, Jr. (E.D. Pa.), to 
replace Chief Judge Richard Matsch 
(D.Colo.). $^ 



udges and Justices Turn Out tur Judicial Conference Reception at Supreme Cuurt 

Judge Rya W. Zobel (D. Mass.), who is retiring as director of the 
ederal Judicial Center in July, was the guest of honor at a Supreme 
ourt reception hosted by Chief Justice William H. Rehnquist and 
administrative Office Director Leonidas Ralph Mecham, following the 
larch meeting of the Conference. Zobel has served as director of the 
ederal Judicial Center since 1995. Several associate justices and 
lembers of the Judicial Conference, along with executive staffs of the 
ederal Judicial Center and the Administrative Office, attended. The 
hief Justice presented Zobel with a resolution expressing the Confer- 
nce's gratitude "for her dedication to the administration of the federal 
jurts in her service as Director of the Federal Judicial Center." £»^ 




■ " n 
C IB* ^H 




hief Justice William H. Rehnquist and Judge Wm. Terrell Hodges (M.D. Fla.) at the 
ipreme Court reception. 



Top: Judge Rya W. Zobel receives the Judicial 
Conference resolution honoring her years as Federal 
Judicial Center Director from Chief Justice William H. 
Rehnquist. 

Above: Administrative Office Director Leonidas Ralph 
Mecham and Justice Byron White at the Supreme 
Court reception. 



The Third Branch m April 1999 



i; 

■r. 



Caseload Increase Since Last Judgeship Bill Shows Need 



New federal judgeships were 
last created by Congress in 1990. 
Since that time the caseload in both 
the courts of appeals and the dis- 
trict courts has continued to 
increase substantially. The number 
of appeals filed in the courts of 
appeals has grown by more than 30 
percent since 1990 while district 
court case filings are up more than 
20 percent. The Judicial Conference 
bases its recommendation for 
additional judgeships upon a bien- 
nial survey of needs, which includes 
reviews of a court's request and 



justification, an evaluation of how 
the court uses current resources, and 
the recent caseload per authorized 
judgeships. For courts of appeals, the 
Conference uses annual filings per 
authorized three-judge panel, 
adjusted to weight pro se cases as 
one-third of a case, as its primary 
measure of need. An adjusted level 
of 500 per panel is used as the 
standard for considering requests for 
additional judgeships. 

For district courts, the Conference 
uses weighted filings as its primary 
measure. The weights provide a 




Justice Harry A. Blackmun Laid tn Rest 

Retired Associate Justice Harry A. Blackmun died March 4 at the age of 
90 from complications following hip-replacement surgery. Appointed by 
President Richard M. Nixon to the Supreme Court, Blackmun served 24 
years, retiring in 1994. Chief Justice William H. Rehnquist called him "a 
worthy successor to the predecessors in the seat which he occupied — 
Joseph Story, Oliver Wendell Holmes, Benjamin Cardozo, Felix Frank- 
further," and said he would be missed by his friends and colleagues. 
President Clinton praised Blackmun as a great American citizen. "Every 
decision and every dissent," said Clinton, "was firmly grounded in the 
Constitution he revered, and his uncanny feel for the human element that 
lies just beneath the surface of all serious legal argument." 

Justice Blackmun lay in repose in the Great Hall of the Supreme Court 
on the same catafalque used for President Abraham Lincoln in 1865. The 
flag that draped the casket had also draped the casket of Blackmun's 
father. 



means of accounting for differences 
in the time required for judges to 
resolve various types of civil and 
criminal actions. A weighted caseload 
per judgeship of 430 or better is a 
Conference standard for considering 
requests for new judgeships. 

The overall increase of 32 percent 
in the appeals caseload has been 
driven primarily by a 74 percent 
increase in prisoner appeals. Appeals 
of other civil cases increased 18 
percent since 1990, while criminal 
appeals rose 9 percent. Reviews of 
administrative agency decisions, up 
nearly 50 percent, also have grown 
substantially since 1990. 

In the district courts, the total 
number of cases filed has grown 
by approximately 22 percent since 
1990. Civil filings were 29 percent 
higher in 1998 than in 1991. The 
growth was the result of increases 
in personal injury product liability 
cases (145.5 percent), civil rights 
cases (112.9 percent), Social Security 
cases (71 .4 percent), copyright, patent 
and trademark cases (49.4 percent), 
and prisoner petitions (29.3 percent). 
For example, following the enactment 
of the Civil Rights Act of 1990, filings 
rose from 19,892 in 1991 to 42,007 in 
1996. Prisoner civil rights cases 
increased through most of the years, 
but fell after prison litigation reform 
legislation was passed in 1996. (See 
story on page 6.) Significant increases 
in mass tort filings of asbestos and 
breast implant cases contributed to 
the overall increase in personal injury 
product liability filings. 

The number of criminal cases filed 
since 1991 increased 25 percent with 
the number of criminal defendants 
rising 21 percent. Some of the major 
categories of criminal cases saw 
substantial increases in that time. 
Drug-related filings increased 39 
percent. Immigration filings more 
than quadrupled from 1991 to 1998. 
And although the number of fraud 
cases has fluctuated, the number of 
cases increased 20 percent since 
1991. 



4 



The Third Branch m April 1999 



s There a COLA on the Horizon? 



Congressional leaders are not 
:ommitting themselves completely to 
i pay raise for members of Con- 
gress — and by extension, one for 
ederal judges and top executive 
>ranch employees. And yet there 
\ave been rumblings they might, as 
eported by the media. Speaker of the 
-louse J. Dennis Hastert (R-IL) has 
ndicated his support for an increase 
or members, as has House Minority 
.eader Richard Gephardt (D-MO). 
ienator Thomas Daschle (D-SD), in a 
;eneral discussion on a Sunday mor- 
ting talk show, said it was time for a 
ost-of-living adjustment for mem- 
>ers of Congress, but declined to say 
low much. Senate Majority Leader 
"rent Lott (R-MS) also reportedly 
avors a COLA this year. A growing 
ist of Members from both sides of 



the aisle have made statements in 
support of — and against — salary 
relief. 

The Judicial Conference Commit- 
tee on the Judicial Branch, Adminis- 
trative Office Director Leonidas 
Ralph Mecham, AO staff, and the 
judges associations are strongly 
urging Members of Congress and 
top executive branch officials to 
support a pay adjustment for judges 
and other high level government 
officials in January 2000. In connec- 
tion with this effort, Judge David R. 
Hansen (8 th Cir.), chair of the Judicial 
Branch Committee, and Director 
Mecham are scheduled to meet with 
Speaker Hastert in April to discuss 
pay issues. 

Under federal law, judges and 
members of Congress are automati- 



cally eligible to receive an annual 
cost-of-living increase when rank and 
file government employees receive 
theirs. This year a recommended 4.4 
percent increase is contained in the 
annual spending bills for general 
schedule employees. If there is a 
COLA, federal judges might receive 
a pay adjustment of 3.4 percent. 

However, only once since 1993 
have members taken a COLA or per- 
mitted one for judges. In past sessions, 
provisions denying cost-of-living 
adjustments for Members have been 
included in appropriations bills. As a 
consequence, the value of a district 
court judge's salary is worth $22,000 
less today than it was in 1992. 

The Judicial Branch Committee, 
the AO, and the judges associations 
also are working cooperatively on 
long-term solutions to the problem of 
salary compression. ^^^ 



: ederal Courts Report Record Caseloads Again 



The federal Judiciary, which 
eported historic caseload levels 
n fiscal year 1997, has reported 
ecord numbers of cases for FY98 in 
nost program areas, according to 
tatistics compiled by the Adminis- 
rative Office. The Judiciary's fiscal 



year ends October 1. The 1998 
caseload statistics can be found at 
www.uscourts.gov. 

Once again, record numbers of 
cases were filed in appellate and 
bankruptcy courts, which reported 
increases of 3 percent and 5 percent, 



Criminal Cases Filed 
1994-1998 



Thousands 



60 



50 



40 



30 



20 



10 




1994 



1995 



1996 



1997 



1998 



l Other Criminal ■Immigration Drugs 



respectively. Criminal case filings 
and the number of criminal defen- 
dants in cases filed in 1998 increased 
15 percent and 13 percent respec- 
tively — the first double-digit percent- 
age increases since 1972. However, 
the total number of civil and criminal 
filings in district courts went down 2 
percent, due to a 6 percent drop in 
the number of civil cases filed. Civil 
case filings were still 9 percent 
higher in 1998 than in 1994. Despite 
these increases, no new Article III 
judgeships have been created in 
eight years. Bankruptcy cases filed 
have continued to climb, numbering 
well over a million since 1996, yet the 
number of authorized bankruptcy 
judgeships has not changed since 
1992. 

Courts of Appeals 

For the third consecutive year, 
filings in the courts of appeals were 
at record-breaking levels, increasing 
3 percent in 1998 to 53,805. The 

See Caseloads on page 6 



The Third Branch m April 1999 



i! 

I 



Caseloads continued from page 5 

growth was due to a 6 percent in- 
crease in civil appeals and a 4 per- 
cent increase in bankruptcy appeals. 

In 1998, prisoner petitions rose 
8 percent. This increase, coupled 
with a 7 percent increase in civil 
rights appeals, drove an overall 
rise in appeals filed. Cases involving 
pro se litigants, 66 percent of 
whom are prisoners, rose 6 percent 
in 1998. Pro se cases make up 44 
percent of all appeals filed. Bank- 
ruptcy appeals climbed 4 percent 
in 1998, and criminal appeals re- 
mained relatively stable, rising less 
than 1 percent. Increases were 
reported in the number of appeals 
related to immigration laws and 
drugs. Filings of administrative 
agency appeals and original pro- 
ceedings declined 14 percent and 8 
percent, respectively. 

District Courts Criminal Caseload 

In 1998, criminal case filings 
climbed 15 percent from 50,363 in 
1997 to 57,691. The number of 
defendants grew 13 percent, from 
70,201 to 79,008. 

The combination of drug, fraud, 
and immigration filings accounted 
for 60 percent of all criminal cases 
and for 65 percent of all criminal 
defendants. Immigration filings 
rose 40 percent and accounted for 
16 percent of all criminal cases and 
13 percent of all criminal defen- 
dants. For the first time in 26 
years, immigration filings exceeded 
fraud filings to become second 
only to drug filings in numbers of 
cases. 

Drug case filings climbed 19 
percent, while defendants in drug 
cases filed increased 14 percent. 
These record high levels resulted 
from increased resources made 
available to U.S. attorneys in districts 
along the nation's southwestern 
border. 

Fraud case filings rose for the 
fourth consecutive year, growing 6 



percent primarily because of fraud 
filings associated with immigration 
law violations and to a lesser extent 
because of lending institution and 
security and exchange fraud. After 
rising for three consecutive years, 
filings of false claims and state- 
ments cases declined 4 percent in 
1998. Total weapon and firearms case 
filings climbed 14 percent, and 
defendants in such cases increased 11 
percent. 

Civil Caseload 

Civil case filings decreased 6 
percent in 1998, to 256,787— the first 
drop in civil filings in five years. The 
reduction was due primarily to a 6 



percent drop in private a> 
related to both federal question and 
diversity of citizenship litigation. 
Filings involving the U.S. as defen- 
dant also fell. 

The decline in federal question 
litigation was attributed mostly to a 
22 percent reduction in personal 
injury cases, of which product 
liability filings (mostly breast 
implant cases) fell 26 percent. In 
addition, federal question litigation 
involving state prisoner petitions 
also fell. 

Filings with the U.S. as defen- 
dant fell 12 percent, chiefly because 
of a drop in prisoner petitions filed 
by federal inmates and in motions 
to vacate sentence. 



Legislation Has Mixed Effect on Petitioos 



The Prison Litigation Reform Act 
(PLRA) and the Antiterrorism and 
Effective Death Penalty Act 
(AEDPA), both enacted in 1996, 
contain provisions aimed at reduc- 
ing prisoner petitions. The PLRA 
imposes mandatory filing fees; the 
AEDPA provides a one-year 
limitation period for filing state 
habeas corpus petitions and federal 
motions to vacate sentence. The two 
acts appear to have had a mixed 
effect on the number of prisoner 
petitions filed in federal courts. 

In 1997, following enactment of 
these two bills, the number of pri- 
soner petitions filed in appellate 
courts fell 5 percent. However, in 
fiscal year 1998 they were up 8 per- 
cent. Specifically, habeas corpus 
filings in appellate courts by state 
prisoners grew 36 percent, while 
motions to vacate sentence also rose 
5 percent. 

The number of civil rights pri- 
soner petitions in appellate courts 
appeared to be affected the most by 
the PLRA. They dropped 20 percent 
from 1996 to 1997, including those 
addressing prison conditions. These 



petitions continued to fall 11 
percent from 1997 to 1998. 

In the district courts, the effect 
of the PLRA could be seen in a 7 
percent drop in federal question 
litigation involving state prisoner 
petitions, mostly because prisoner 
petitions involving civil rights 
and prison conditions fell 8 
percent. 

Prisoner petitions filed by 
federal inmates dropped 34 per- 
cent in FY98 and motions to va- 
cate sentence dropped 46 percent. 
These filings had risen markedly 
from 1996 to 1997, because of the 
AEDPA and the Bailey v. U.S. 
Supreme Court ruling, which re- 
stricted the imposition of en- 
hanced penalties for using fire- 
arms in violent crimes or drug 
trafficking offenses. At that time, 
many federal prisoners serving 
such sentences sought to vacate 
them. The effects of Bailey and the 
AEDPA may be waning, as filings 
begin to return to lower levels. 
Combined, federal and state 
prisoner petitions declined 13 
percent in FY98. 



The Third Branch m April! 999 



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Filings with the U.S. as plaintiff 
increased 12 percent. This growth 
occurred primarily because filings 
related to defaulted student loans 
lumped 55 percent. Department of 
lustice officials continue to attribute 
the rise to efforts by the Department 
af Education to submit defaulted 
student loans for collection. 



Bankruptcy Filings 

Bankruptcy filings in fiscal year 
1998 totaled 1,436,964. While FY98 
ilings increased 5 percent over 
he same period in FY97, this 
growth was less than the 23 percent 
ncrease in FY97 and the 26 percent 
ncrease in FY96. In 1997, 93 of the 94 
districts recorded increased filings, 
n 1998, 76 districts reported higher 
lumbers. 

A 6 percent rise in nonbusiness, 
>r consumer, petitions caused 
his year's growth. Nonbusiness 
ilings have constituted an in- 
rreasingly larger percentage of 
werall bankruptcy filings for more 
han a decade. Business filings, 
vhich accounted for 3 percent of all 
ilings this year, dropped 13 percent 
n 1998 to their lowest level since 
[981. 



Civil Filings 
1994-1998 



80 
70 
60 
50 
40 
30 
20 
10 



Thousands 







1 




II 
























■ 


















I 


















I 


~ ' 








■1 


1 




_ 


■ ..,■ 


■ 




■ 




ll 



1994 



1995 



1996 



1997 



1998 



m Prisoner Petitions 
Social Security 



Recovery of Overpayments 
Civil Rights 



Of the total number of bank- 
ruptcy filings for FY98, there were 
1,026,134 chapter 7 filings, an 
increase of 7 percent over the 
958,045 filings in the same period in 
1997. The next largest group of 
filings was chapter 13 filings at 
401,151, a 1 percent increase over the 
397,097 filings in 1997. Chapter 11 
filings dropped to 8,765 in FY98, 
down from 11,221 in the same period 
in 1997. Chapter 12 filings also fell, 
going from 966 in 1997, to 879 in 
1998. 



Bankruptcy Filings 
1994-1998 



Thousands 




1994 



1995 



1996 



1997 



1998 



Chapter 7 All Other 



Probation and Pretrial Services 

On September 30, 1998, there 
were a total of 172,340 persons 
under supervision of federal proba- 
tion and pretrial services. The 
federal probation system super- 
vised 93,737 persons, a 3 percent 
increase over the number reported 
for FY 97. This number includes 
32,594 persons under probation, 
54,819 serving terms of supervised 
release, and 3,583 under parole. The 
number of persons serving terms of 
supervised release following their 
release from prison rose 7 percent in 
1998. 

In FY98, the number of defen- 
dants in cases activated in the pre- 
trial services system increased 13 
percent to 78,603, consistent with the 
growth in criminal filings in the 
district courts. Pretrial services 
officers interviewed 59,074 defen- 
dants and prepared 75,760 pretrial 
reports. Of the defendants released, 
31,116 were released with restrictive 
conditions. The most frequently 
ordered restrictive conditions in- 
volved substance abuse testing and 
treatment and were imposed on 21 
percent of the activated defendants. 
House arrest and electronic monitor- 
ing were ordered for 6 percent of the 
activated defendants. £v^ 



The Third Branch m April 1999 



JUDICIAL MILESTONES 



Appointed: Valerie K. Couch, as 

U.S. Magistrate Judge for the 
Western District of Oklahoma, 
March 8 



Appointed: Karen Wells Roby, 

as U.S. Magistrate Judge for the 
Eastern District of Louisiana, 
February 22 



Elevated: Judge Hector M. 
Laffitte, to Chief Judge, U.S. 
District Court for the District of 
Puerto Rico, March 16, succeed- 
ing Judge Carmen Consuelo 
Cerezo 



Elevated: Judge A. J. 
McNamara, to Chief Judge, U.S. 
District Court for the Eastern 
District of Louisiana, February 
27, succeeding Judge Morey L. 
Sear 



Elevated: Bankruptcy Judge 
Gerardo Carlo-Altieri, to Chief 
Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the District of 
Puerto Rico, March 1, succeeding 
Bankruptcy Judge Sara E. De 
Jesus 



Retired: Judge Cornelia G. 
Kennedy, U.S. Court of Appeals 
for the Sixth Circuit, March 1, 
1999 



Retired: Magistrate Judge 
Ronald L. Howland, U.S. District 
Court for the Western District of 
Oklahoma, March 27 



Retired: Bankruptcy Judge 
Laurence E. Howard, U.S. 
Bankruptcy Court for the West- 
ern District of Michigan, 
March 28 



Deceased: Senior Judge Clyde 
Atkins, U.S. District Court for the 
Southern District of Florida, 
March 11 



Deceased: Senior Judge Shane 
Devine, U.S. District Court for 
the District of New Hampshire, 
February 22 



Deceased: Senior Judge Robert 
E. DeMascio, U.S. District Court 
for the Eastern District of Michi- 
gan, March 23 



Deceased: Senior Judge Joseph 
L. McGlynn, Jr., U.S. District 
Court for the Eastern District of 
Pennsylvania, February 23, 1999 



Deceased: Judge Linda Hodge 
McLaughlin, U.S. District Court 
for the Central District of Califor- 
nia, March 7 



THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 
Our homepage address is 
http: / / www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Photos on pages 5 and 12 
by Franz Jantzen, Collection of the 
Supreme Court of the United States 

Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond@ao.uscourts.gov. 



JUDICIAL BQXSCORE 




As of April 1,1999 




Courts of Appeals 
Vacancies 


18 


Nominees 


10 


District Courts 




Vacancies 


47 


Nominees 


23 


Court of International Trade 




Vacancies 


1 


Nominees 





Courts with 




"Judicial Emergencies" 


28 


For more information on vacancies in 
the federal judiciary visit our website 
at www.uscourts.gov. 



The Third Branch m April 1999 



Congress Addresses Legislation on Range of Judiciary-Related Issues 



Several bills have been introduced 
in the 106 th Congress that, if enacted, 
could significantly affect the Judi- 
ciary in areas from employment to 
cameras in the courtroom. 

Y2K 

Bills limiting lawsuits arising from 
computer program failures in the 
war 2000 continue to move through 
Congress. (See The Third Branch, 
March 1999 for more on these bills.) 
The leading bills generally expand 
jurisdiction of the federal courts over 
Y2K class actions. The House Judi- 
ciary Committee has scheduled a 
hearing in mid-April on H.R. 775, 
the Year 2000 Readiness and Respon- 
sibility Act. The Senate Judiciary 
Committee has favorably reported 
5. 461, the Year 2000 Fairness and 
Responsibility Act, out of committee 
and the Senate Committee on 
Commerce, Science and Transporta- 
ion has reported out S. 96, the Y2K 
<\ct. Y2K legislation may move to the 
Senate floor for a vote within the 
nonth. The Judicial Conference 
apposes the provisions expanding 
ederal court jurisdiction over Y2K 
:lass actions, as well as those creat- 
ng specific pleading requirements. 

Jintfi Circuit Reorganization 

S. 253, the Federal Ninth Circuit 
Reorganization Act of 1999, intro- 
iuced by Senator Frank H. 
vlurkowski (R-AK), would imple- 
nent many of the recommendations 
nade by the Commission on Struc- 
ural Alternatives for the Federal 
lourts of Appeals. Provisions call for 
he organization of the Ninth Circuit, 
vithin 180 days of the bill's enact- 
nent, into three regional divisions. A 
ircuit division would be established 
o review any final decision rendered 
n any of the court's divisions. The 
>ill also would allow the judicial 
ouncil of each circuit to establish a 
listrict court appellate panel service 



composed of district judges of the cir- 
cuit to hear and determine appeals. 
Final decisions of the panels would 
be reviewed by the court of appeals 
at its discretion. The Judicial Confer- 
ence opposes the establishment of 
district court appellate panels. 

Cameras in the Courtroom 

S. 721, the Sunshine in the Court- 
room Act, was introduced by Senator 
Charles E. Grassley (R-IA) with 
Senators Charles Schumer (R-NY), 
Patrick Leahy (D-VT), Russell 
Feingold (D-WI), and Daniel 
Moynihan (D-NY). 

The bill would allow the photo- 
graphing, electronic recording, broad- 
casting and televising of federal 
court proceedings. S. 721 permits, but 
does not require, presiding appellate 
and district court judges to allow 
cameras in the courtroom. Non-party 
witnesses would have the right to 
have their voices and images obscured 
during their testimony. The bill also 
would authorize the Judicial Confer- 
ence to promulgate advisory guide- 
lines for use by presiding judges in 
determining the management and 
administration of photographing, 
recording, broadcasting, or televising 
the proceedings. The authority for 
cameras in federal courts would 
sunset in three years. A companion 
bill to allow media coverage of court 
proceedings, H.R. 1281, was intro- 
duced in the House by Representa- 
tive Steve Chabot (R-OH) and has 36 
co-sponsors from both parties. 

Following a three-year pilot pro- 
gram, the Conference declined to ex- 
pand camera coverage in civil pro- 
ceedings due to the potential adverse 
impact on witnesses and jurors. By 
federal rule, cameras are not allowed 
in criminal proceedings. The Confer- 
ence left to the courts of appeals the 
decision whether to permit camera 
coverage of appellate arguments. 
Only two circuits, the 2 nd and 9 th , 



subsequently voted to allow such 
coverage. 

Employment 

Representative Jesse L. Jackson, Jr. 
(D-IL) has introduced H.R. 1048, the 
Judicial Branch Employment Non- 
discrimination Act, which would 
amend Title VII of the Civil Rights 
Act of 1964 to include the federal Judi- 
ciary. The bill would allow individu- 
als to file appeals with the EEOC or 
to file suit in federal court for alleged 
acts of discrimination. With 41 co- 
sponsors, the bill has been referred to 
the House Judiciary Subcommittee 
on the Constitution, but no hearings 
have been scheduled. Presently, the 
courts of appeals and the district 
courts have, or are in the process of 
implementing, an Employment 
Dispute Resolution Plan, through 
which complaints of discrimination 
are resolved in an administrative 
process similar to what Congress 
offers to its own employees. 

Firearms Prosecution Projects 

The Senate approved an amend- 
ment to its version of H. Con. Res. 
68, the Congressional Budget for the 
U.S. Government, expressing the 
"sense of the Senate" that $50 million 
will be provided in fiscal year 2000 
to conduct intensive firearms pros- 
ecution projects in the 25 American 
cities with the highest crime rates. 
Under such projects, local, state, and 
federal law enforcement officials 
cooperate to prosecute in federal 
court virtually all crimes committed 
with firearms. As Congress takes 
steps to expand this project nation- 
wide, one such project in Richmond 
has inundated the Eastern District of 
Virginia with gun prosecutions. 

A recent federal court decision 
there said the project "represents 
a substantial federal incursion into 
a sovereign state's area of author- 
ity..." S^ 



The Third Branch m April 1999 



INTERVIEW 



Committee's Mission is Quality of Justice 



An Interview with Chief Judge D. 
Brock Hornby (D. Me.), chair of the 
Judicial Conference Committee on Court 
Administration and Case Management. 

Q # You chair the Judicial Confer- 
• ence Committee on Court 
Administration and Case Manage- 
ment. What are the responsibilities of 
the committee? 



A 



The Court Administration 



. • and Case Management 
Committee, as its name implies, has 
a fairly broad area of jurisdiction. In 
addition to making policy recom- 
mendations on case management 
issues for the appellate and district 
courts and governance issues for all 
court offices, the committee also 
addresses diverse issues such as fees, 
juries, court reporters and interpret- 
ers, and attorney admissions. I think 
this broad jurisdiction is beneficial 
for the committee. There is no single 
area or constituency that the commit- 
tee focuses on or feels the need to pro- 
tect. As one of my colleagues on the 
Budget Committee has said, we are 
the "quality of justice" committee. 
We are asked to take a broad perspec- 
tive and assess how a programmatic 
or budget proposal may impact the 
primary mission of the courts to 
provide justice to all. Appropriately, 
our committee has representation 
from each circuit and also includes a 
magistrate judge and a bankruptcy 
judge. A district court clerk is invited 
to attend our meetings. 



Q. Given this broad jurisdiction, 
• what is your relationship to 
the other Judicial Conference com- 
mittees? 



A 



# The committee often works 

• with other committees to 



suggest and implement policy. One 
illustration of our role in taking a 
Judiciary-wide perspective on issues 
was our work with the Space and 
Facilities Committee in providing a 
case management perspective to the 
development of Conference policies 
relating to courtroom usage and non- 
resident facilities. 

Most recently, the committee 
worked closely with the Judicial Re- 
sources Committee on the question of 
funding the death penalty law clerk 
program on a national basis. Death 
penalty law clerks serve both as a sub- 
stantive resource to the judges in 
death penalty habeas corpus matters, 
and as case management monitors. 
The Court Administration and Case 
Management Committee believed 
that the program provided much- 
needed assistance to the judges in the 
management of these difficult cases, 
but more importantly that this pro- 
gram increases the quality of justice 
the courts provide. The Judicial Re- 
sources Committee then considered 
our committee's analysis of the death 
penalty law clerk program in its delib- 
eration of whether resources should 
be allocated to the program. We have 
also worked with the Committee on 
Automation and Technology on the 
use of video conferencing in prisoner 
civil rights cases. 



Q # Recently, Alternate Dispute 
• Resolution legislation was 
enacted. What role has the commit- 
tee played in the development of 
ADR? 



A. The federal courts have had 
• ADR for 20 years, and our 
committee has been very involved in 
its development. In fact, the chair of 
the Committee on Court Administra- 
tion and Case Management has 




Chief Judge D. Brock Hornby 



testified on behalf of the Judicial 
Conference before the House Judi- 
ciary Committee several times 
regarding ADR legislation. Our 
committee and the Conference have 
encouraged courts to use their dis- 
cretion in developing the ADR pro- 
gram they think is appropriate to meet 
their specific needs. For example, the 
recently enacted ADR Act originally 
would have required each district 
court to establish a court-annexed 
arbitration program. Our committee 
worked very closely with Congress, 
the Department of Justice, the ABA, 
and other organizations to provide 
more flexibility in the Act so that 
district courts could have the ADR 
program that best suits their needs. 



Q 



# What programs have 

• continued since the sunset of 



the Civil Justice Reform Act? 

A. With the sunset of the Civil 
• Justice Reform Act, some of 
its provisions survived, either 
because they were required by the 
statute or because they were good 
programs that our committee 
recommended be continued. 

The RAND study, which was 
commissioned under the act, found 
that the CJRA public reporting re- 
quirements seemed to have a bene- 4 



10 



The Third Branch m April 1999 



ficial effect on reducing the number 
of three-year-old cases, and the com- 
mittee recommended the public re- 
porting requirements on motions and 
bench trials pending over six months 
and cases over three years be contin- 
ued. Congress also decided to make 
the reporting requirement permanent. 

In addition, our committee deter- 
mined that the CJRA software devel- 
oped by the AO to deal with public 
r eporting was mature enough for all 
:ourts to begin using it and recom- 
nended to the Conference that all 
rourts use it for the September 30, 
1998, report. A number of courts had 
:o do some work in terms of cleaning 
.ip their dockets, but it has been a 
/ery successful exercise, giving the 
rourts a better sense of the state of 
heir docket and more uniformity in 
vhat is being reported. Another 
promising development is WEB 
IHASER, which will enable all 
udges to see the status of the docket 
ind what the report will look like for 
he next reporting period. The Judi- 
cal Conference, on the committee's 
ecommendation, also has added 
wo more categories of items that 
vill be reported, bankruptcy appeals 
ind social security appeals. 

Our committee also recom- 
nended that the CJRA advisory 
groups continue after the sunset of 
he CJRA. They are made up of 
epresentatives of the court and the 
)ar, and even the public. We recom- 
nended that they continue to be 
lsed and suggested topics for them 
o consider such as jury service and 
low that can be made more efficient, 
he use and implementation of 
ilectronic technologies such as 
ilectronic filing and video evidence 
>resentations, as well as continuing 
o comment on the state of the 
rriminal and civil dockets. 



Q # With the growing caseloads 
• and the continuing problem 
)f judicial vacancies, what is your 
:ommittee doing to assist the courts? 



A # The committee has been 
• considering various case 
management tools that a chief judge 
might implement to manage the 
assignment of protracted and com- 
plex cases. In March, the Conference 
adopted the committee's recommen- 
dations to suggest case management 
tools that could be used voluntarily 
by the courts to help with the manage- 
ment of difficult cases. The first is to 
establish separate wheels on their case 
assignment systems for difficult and 
complex cases, so that they will be 
distributed equally among judges on 
the courts. The second recommenda- 
tion is that the courts consider 
developing procedures by which 
judges could voluntarily return cases 
to the case assignment wheel. 

We're also working on a litigation 
manual that pulls together all the 
lessons we've learned from the CJRA 
plans adopted by the courts and 
from the RAND and Federal Judicial 
Center studies. At the appellate 
level, we sponsored a case manage- 
ment information exchange last 
November in Chicago, and according 
to the reaction from the chief judges 
and other appellate judges who were 
there, it was a very helpful exercise. 
The judges who participated heard a 
lot of ideas about ways other circuits 
are doing things. We hope that it was 
a valuable tool for the circuits to use 
in reviewing and assessing their case 
management procedures. 



Q. In addition to case manage- 
• ment, your committee has 
jurisdiction over court administra- 
tion matters. What issues has your 
committee confronted in this area? 

A # Following a study conducted 
• by the National Academy of 
Public Administration on the admin- 
istrative structures of the federal trial 
courts, some districts expressed in- 
terest in combining or sharing 
administrative functions among 
different court units. Indeed one 



district reorganized to combine the 
administrative and operational 
functions of the district and bank- 
ruptcy clerk's offices. Our commit- 
tee, along with the Bankruptcy 
Committee, developed procedures 
for the courts to follow in analyzing 
whether consolidation is appropriate 
and in obtaining approval for a 
consolidation in accordance with the 
statutory structure. 

Another court administration 
issue came to the committee's 
attention through new chief district 
judges who suddenly discovered the 
enormous responsibility they had 
with regard to budgetary matters — 
and also realized how much they 
had to learn — and fast! With budget 
decentralization, most of the work 
done previously at the Administra- 
tive Office is now done at the court 
level. It is very important that the 
chief judge and indeed all the judges 
on the court have an understanding 
of budget decentralization and the 
budget-making process in their 
courts. Although significant training 
was done at the time budget decen- 
tralization was instituted, new chief 
judges have come on who have not 
had the training. Our committee 
worked with the Budget Committee 
and the Administrative Office and 
Federal Judicial Center to institute 
budget training in workshops 
provided by the FJC. We also have 
been working with them on adminis- 
trative budget models that courts 
might follow in establishing budget 
processes in their courts. 



Q # What issues do you see your 
• committee facing in the 
future? 

A # The committee is going to be 
• dealing with policies related 
to the new electronic case files and 
issues of privacy. Obviously, we 
will also be involved in the long- 
range budgeting and planning 
initiatives. £«^ 



11 



The Third Branch m April 1999 



;e 

it 



Judicial Conference of the United States, March 16, 1999 




Seated: (L to R) Chief Judge Juan R. Torruella (l sl dr.); Chief Judge Ralph K. Winter, Jr., (2 nd dr.); Chief Judge Edward R. Becker (3 rd dr.); 
Chief Judge J. Harvie Wilkinson III (4 th dr.); Chief Justice William H. Rehnquist; Chief Judge Carolyn Dineen King (5' h dr.); Chief Judge 
Boyce F. Martin, Jr. (6 lh dr.); Chief Judge Richard A. Posner (7 th dr.); Chief Judge Pasco M. Bowman II (8 lh dr.) 

Standing, Second Row: (L to R) Judge Joseph A. DiClerico, Jr. (D. N. H.); Chief Judge Charles P. Sifton (E. D. N.Y.); Chief Judge Donald 
E. Ziegler (W. D. Pa.); Chief Judge Harry T. Edwards (D. C. dr.); Chief Judge Haldane Robert Mayer (Fed. Cir); Chief Judge Joseph W. 
Hatchett (11 th dr.); Chief Judge Procter R. Hug, Jr. (9 ,h dr.); Chief Judge Stephanie K. Seymour (10 th dr.); Chief Judge Charles H. Haden II 
(S. D. W.V.); Judge Hayden W. Head, Jr. (S. D. Tex.) 

Standing, Third Row: (L to R) Judge Robert L. Miller, Jr. (N. D. Ind); Judge Thomas A. Wiseman, Jr. (M. D. Tenn.); Judge Lloyd D. 
George (D. Nev.); Judge Ralph G. Thompson (W. D. Okla.); Judge James M. Rosenbaum (D. Minn.); Judge Wm. Terrell Hodges (M. D. 
Fla.); Chief Judge Norma H. Johnson (D. D.C.); Chief Judge Gregory W. Carman (Int'l Trade); Leonidas Ralph Mecham (AO Director) 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
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Washington, D.C. 20544 



OFFICIAL BUSINESS 

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i 






THE 



THIRD 




'O 



Celebrates 60 Years of Service 




"You are very important to the 
■oper functioning and independence 

the Judiciary, and judges and 
dicial employees across the country 
>preciate your work." Those were 
e words of Chief Justice William H. 
?hnquist to the assembled staff of the 
dministrative Office of the U.S. 
ourts, as the agency marked its 60 th 
iniversary at a special ceremony last 
onth. 

The Chief Justice went on to corn- 
end the AO's efforts, especially un- 
5 Director Leonidas Ralph 
^echam's leadership, in helping to 



Chief Justice 
William H. 
Rehnquist (at the 
podium) celebrated 
the accomplish- 
ments of the 
Administrative 
Office over the last 
60 years at an 
anniversary celebra- 
tion in Washington 
last month. Chief 
Judge Edward B. 
Davis (S. D. Via.) 
and AO Director 
Leonidas Ralph 
Mecham (photo left 
to right) also ad- 
dressed AO em- 
ployees assembled 
to observe the 
milestone event. 



sustain the independence of the 
Judiciary. He cited as examples of 
that effort some of the important 
accomplishments of the AO over the 
past six decades, such as working 
with the Judicial Conference and 
other government agencies to coordi- 
nate and implement new legislation 
and procedures; supporting over 
2,000 judicial officers; guiding and 
supporting thousands of probation 
and pretrial services officers; provid- 
ing centralized core administrative 
functions, such as payroll and ac- 

See 60 Years on page 2 



House Says No to Courthouse Funds . 
Judge Arnold Receives Devitt Award 
Judgeship Bill Introduced 




Vol. . 

Number 6 
June 1999 



June 15 th Funding 
Cutoff Averted 

The good news/bad news 
scenario on the Judiciary's 1999 
funding finally resolved itself in 
May with the President's signa- 
ture on P.L. 106-31, legislation 
making emergency supplemental 
appropriations for the fiscal year 
ending September 30, 1999. The 
public law includes a provision to 
remove the limitation on funding 
after June 15 th . 

Last year, the good news was 
that Congress gave the Judiciary 
a 6 percent increase in obligations 
in the fiscal year 1999 omnibus 
appropriations bill. The bad 
news was that the funding ran 
out June 15 th for all agencies in 
the Commerce, Justice, State, the 
Judiciary and Related Agencies 
portion of the bill. It came down 
to a political controversy over 
census sampling in which the 
Judiciary became an unexpected 
hostage. 

"The Judiciary is extremely 
pleased that Congress has 
passed and the President has 
signed legislation that, among 
other provisions, will release 
the Judiciary from the June 15, 
1999, cutoff provision included in 
our 1999 appropriations act, " 
Administrative Office Director 

See Funding on page 3 



60 Years continued from page 1 
counting services; developing and 
supporting automated systems and 
technologies; and developing and 
executing the budget. 

In the years prior to 1939, the 
Department of Justice had primary 
responsibility for the administration 
of the courts. The role placed the 
executive and judicial branches in a 
very awkward and potentially 
compromising position. The incep- 
tion of the AO, 60 years ago, was to 
insure complete independence from 
the executive branch. "Since its 
creation, the Administrative Office 
has fulfilled one of its primary 
purposes in helping to sustain the 
independence of the Judiciary," 
Rehnquist said. "But the work is far 
from over. The Administrative 
Office plays no less significant a role 
today in maintaining the courts' 
independence by providing crucial 
support on issues including judges' 
salaries, judges' travel, funding for 




By unanimous resolution the 
Judicial Conference Committee on the 
Administrative Office recognized the 
60 th anniversary of the creation of the 
Administrative Office of the United 
States Courts, as follows: 

"In recognition of six decades of 
distinguished service to the Federal 
Judiciary, the Committee on the 
Administrative Office commends 
the Administrative Office of the 
United States Courts, its six Direc- 
tors, Henry P. Chandler (1939-1956), 
Warren Olney III (1958-1967), 
Ernest C. Friesen (1968-1970), 
Rowland F. Kirks (1970-1977), 
William E. Foley (1977-1985), and 



courtroom construction, insurance 
coverage for judges, and appropria- 
tions for the Judiciary," said 
Rehnquist. "Indeed, even today we 
face a continuing struggle with OMB's 
attempts to reduce the Judiciary's 
budget before it has been submitted to 
Congress. Each of these issues is im- 
portant to an independent Judiciary." 

Mecham congratulated the 
agency's employees on their long 
history of successes, and for their 
spirit of service, invention, and 
resourcefulness. "You've shown your 
best work when pressed for time, 
strapped for funding, and short on 
staff," said Mecham. 

Chief Judge Edward B. Davis 
(S. D. Fla.), chair of the Judicial 
Conference Committee on the Admin- 
istrative Office, also addressed AO 
employees celebrating the milestone. 
"It is hard to imagine the Judiciary 
without the AO's assistance," Davis 
said. "Make no mistake, you play a 
part in what happens every day in 
federal courts across the country. 

Left: Judge Davis presents Director Mecham 
with a framed copy of the AO Committee's 
resolution recognizing the AO's 60th 
anniversary. 



\ 



Above: President Franklin Delano Roosevelt 
signs the 1939 Act creating the Administratiu 
Office of the United States Courts. He is 
flanked by former Attorney General Homer S 
Cummings and then Attorney General Frank 
Murphy. 

Whether you talk to congressional 
staff, plan new courthouses, prepar 
contracts, run computer systems, 
collect and analyze statistics, pro- 
duce the budget, staff the Confer- 
ence committees, develop program; 
and procedures, or answer ques- 
tions from the courts or the public- 
remember all of the work done by 
the AO on behalf of the Judiciary 
makes justice possible.' 



The full text of remarks are available 

on the Judiciary's Internet site at 

www.uscourts.gov. 



Leonidas Ralph Mecham (1985- 
present); and their dedicated 
employees, for furthering the 
discipline of judicial administra- 
tion; for adhering to the highest 
standards of excellence in all 
endeavors; and for exemplary 
service to the Judicial Conference 
of the United States, federal judges, 
and the entire judicial family. 

During its 10-year history, this 
Committee has been particularly 
pleased with the initiatives of 
Director Leonidas Ralph Mecham, 
who has set high standards of 
equity and fairness in administrat- 
ing the Third Branch and has 
delegated numerous administrative 
authorities to court units through- 
out the United States so that 
decisions about the use of available 
resources are made by those who 
are most affected by those deci- 



sions. Director Mecham's leadership 
and proficiency — in budget and 
legislative matters, in expanding 
the federal courthouse construction 
program, in enhancing security for 
judicial officers and courthouses, 
and in implementing information 
technologies to support court opera- 
tions and improve public access to 
court information — have made a 
lasting contribution to the judicial 
branch. 

Whereas the Committee wishes to 
endorse the practices of the present 
Director that have empowered court 
units throughout the United States 
and promoted efficient operation of 
the Judiciary, the Committee con- 
gratulates Director Mecham and his 
staff and finds their work exemplary 
and in the best interests of a fair, 
efficient, and responsive judicial 
branch.' 



The Third Branch 



jlllir 1'V)<1 



A History Beginning with Service 



Several judges, as chairs of the 
Judicial Conference Committee on 
the Administrative Office, occupied 
a unique vantage point from which 
to view the development of the 
AO. In his article "Judiciary 
Reform: Recent Improvements in 
Federal Judicial Administration,"* 
Judge Harrington Wood, Jr. (7 th 
Cir.), the first chair of the AO 
Committee (1987 to 1991), looked 
back on the creation of the AO as 
an important step toward an 
integrated system that fully recog- 
nized the independence of the 
federal Judiciary. In fact, Wood 
refers to the AO's creation, along 
with that of the Judicial Confer- 
ence and the circuit judicial 
councils, as having a revolution- 
ary impact on federal judicial 
administration, that moved the 
courts away from "complete 
autonomy and toward more 
consistent practices." Although 
Wood credits the AO subsequent to 
1939 with providing the courts 
with classic administrative services, 
he dates the implementation of 
reforms that greatly improved the 
overall administration of the courts 
from the beginning of Leonidas 
Ralph Mecham's tenure as Direc- 
tor. "Director Mecham shifted from 



centralized to decentralized control 
because he believed that judges and 
administrators in the individual 
courts were better situated to make 
decisions about how to use re- 
sources most efficiently and effec- 
tively than a centralized staff. . . .," 
Wood wrote. 

Judge Thomas Penfield Jackson 
(D.D.C.), chair of the AO Commit- 
tee from 1991 to 
1994, relates that 
decentralization was 
perceived very 
favorably. "We were 
duly impressed with 
the rapidity with 
which the AO 
adapted to technol- 
ogy and the enthusi- 
astic responsiveness 
to the desires of the 
courts for local 
autonomy," he relates. He was 
particularly complimentary of AO 
personnel, calling AO staff "prob- 
ably the best" he had encountered 
in government, "very able, very 
conscientious, and very smart." 

Mecham also implemented the 
innovative AO planning and 
management objectives system, that 
according to Wood helped to focus 
the agency's limited resources on 




its most important tasks. Wood 
identified as key to the Judiciary's 
continued reform Mecham's initia- 
tion of a coordinated cost-contain- 
ment effort, both in the courts and 
at the AO, to identify opportunities 
for using limited resources more 
effectively. 

As retired Judge Ted Milburn, 
chair of the Committee from 1994 to 
1996, said, "Having witnessed first- 
hand its operations since Director 
Mecham's appointment, I 
can state unequivocally, 
that in my view, the 
Administrative Office is 
the best organized and 
most efficiently operated 
organization that I have 
ever encountered." 

The overall reforms 
prompted the late Judge 
John F. Gerry (D. N.J.)/ 
then chair of the Judicial 
Conference Executive 
Committee, to tell the Conference at 
its September 1994 session "[t]he 
past nine years have been the 
golden age of judicial administra- 
tion at the national level under 
Director Ralph Mecham and Chief 
Justice Rehnquist." £x^ 

* "L. Ralph Mecham & Federal Courts 
Administration: A Decade of Innovation and 
Progress." The American University Law 
Review, Vol. 44, Number 5, June 1995. 



unding continued from page 1 

.eonidas Ralph Mecham said shortly 
fter the bill was signed May 
1. "As Chief Justice William 
Rehnquist pointed out in his letter 
ent March 17 to congressional 
?aders, freezing funds to the courts 
/ould deny to the public the services 
nd protections they expect and to 
/hich they are entitled. We are 
articularly grateful for the support 
rom the Judiciary's friends in 
Congress, to the Chief Justice, and to 
ie numerous federal judges who 



urged that the appropriations be 
released." 

When the FY99 appropriations bill 
was passed last year, Representative 
Harold Rogers (R-KY) called the 
limitation "a serious mistake." In the 
Judiciary's fiscal year 2000 budget 
hearings in early March 1999 before 
Rogers' House Appropriations 
Subcommittee on Commerce, Justice, 
State, the Judiciary and Related 
Agencies, he referred to the June 15 th 
cutoff as "the next potential calam- 
ity." Rogers and the subcommittee's 
ranking minority member, Jose 



Serrano (D-NY), indicated then to 
Judge John Heyburn (D. Ky) and 
other Judicial Conference representa- 
tives that they would attempt to free 
the Judiciary from the funding 
exclusion. Mecham told the subcom- 
mittee that the Judiciary should not 
be pulled into the political fight over 
the census. However, when by mid- 
March the Judiciary was still threat- 
ened by a cutoff, Chief Justice 
Rehnquist weighed in, writing to 
congressional leadership to urge 
them to release the Judiciary from 
the cutoff date. £^ 



The Third Branch m June 1999 



Hearings Support Presidential Salary Increase 



The House held hearings on the 
salary of the President of the United 
States last month, and heard that 30 
years is a long time to go without a 
pay raise. Representative Stephen 
Horn (R-CA), chair of the House 
Committee on Government Reform 
and Oversight, Subcommittee on 
Government Management, Informa- 
tion and Technology invited a 
particularly notable line-up of bipar- 
tisan witnesses to testify on presiden- 
tial pay, including former White 
House chiefs of staff Alexander Haig, 
Kenneth M. Duberstein, Samuel K. 
Skinner, John H. Sununu, and 
Thomas R. "Mack" McLarty. 

"I can tell you as a former chief 
executive, or chief operating officer 
of one of our Fortune 500 multi- 
national companies," said Haig, "that 
government pay is very, very poor 
no matter what the office." Haig 
recommended that the salary of the 
President be $500,000, with a peri- 
odic salary review "to be sure that 
the dynamics of our economy are 
keeping pace with his just fundamen- 
tal requirements." 

McLarty observed that, "It is an 
honor to serve one's country and we 
do not and should not expect any of 
us to profit or become rich from 
government service." But, he added, 
"1 think it's fair to say that opportu- 
nity costs are high and they are in- 
creasing. And I am worried that we 
are attracting fewer citizens who have 
proven successful careers in private 
life to serve our country." McLarty 
also expressed his concern about the 
fixed presidential salary compressing 
the wages for others who serve in the 
public sector. "Common sense," 
McLarty said, "tells us that presiden- 
tial salaries should not be fixed for 30 
years. Fairness suggests that we end 
the pay compression for other public 
servants and the economic reality is 
that government competes with the 
private sector for talent and experi- 
ence and we should recognize that." 



In March 1999, the Judicial Con- 
ference, in agreeing to seek an annual 
pay adjustment for government 
leaders, also called for an easing of 
the pay compression for officials in 
all three branches of government by 
supporting an increase in the Presi- 
dent's salary. The problem of salary 
compression means that some senior 
government officials are paid nearly 
as much and in some cases more 
than judges. Under the Constitution 
any increase in the President's pay 
would not take effect until the next 
administration in 2001. If the Pre- 
sident's salary is not adjusted before 
January 20, 2001, it will remain fixed 
at least until the next presidential 
oath of office in January 2005. 

Skinner told the House subcom- 
mittee that although a pay raise 
mechanism is in place, it is not used 
because it is tied to congressional 
salaries. Pay compression results. 
"This compression problem has also 
created a very major problem," said 
Skinner, "where we're attracting 
candidates but we're not attracting 
really qualified candidates .... All 
these other people should not be tied 
to [congressional] salaries. ..." 

Subcommittee member Paul E. 
Kanjorski (D-PA) expressed similar 
concerns. "On the judiciary level, 
I've been a little annoyed with the 
idea of my good friends in the legal 
profession who entertain 7-figure 
salaries on a regular basis, and 
they're very difficult to persuade to 
sit on the bench, whether it be a 
district court or appeals court, or 
Supreme Court for that matter," said 
Kanjorski. "And it seems now almost 
the only people who will decide to 
sit on the Supreme Court already 
have amassed sufficient money that 
they are relatively independent with 
several million dollars in net assets. 
And that's unfortunate because some 
people won't have that opportunity, 
and therefore have to make terrible 
choices." &^ 



4 



House Says No To New 
Courthouse Fending 

New courthouse construction 
wasn't funded in this year's House 
appropriations bill, but six repair 
and alteration courthouse projects 
may go forward. Money for these 
R & A projects was included in 
the President's budget, although 
for the third year in a row, the 
White House refused to include 
money in the budget for new 
courthouses needed by the Judi- 
ciary. The House Appropriations 
Subcommittee on Treasury, Postal 
Service and General Government 
included money for the six repair 
and alteration projects when it 
marked up its fiscal year 2000 
appropriations bill last month. 

Subcommittee leaders failed 
to include courthouse money, 
indicating there was insufficient 
money to fund them. They did 
say if additional monies became 
available during the appropri- 
ations process they would recon- 
sider their position. The sub- 
committee included language in 
its mark-up of the FY 2000 appro- 
priations bill to allow the General 
Services Administration (GSA) to 
retain courthouse money appropri- 
ated in FY97. It is likely the full 
House Appropriations committee 
will mark up the bill in June. 
However, if the bill is not signed 
into law in FY99, the money will 
lapse. 

The House Transportation 
and Infrastructure Committee 
already has authorized the new 
courthouse projects. But without 
funds, 17 courthouse projects — 
some of which are ready to begin 
the construction phase — are left 
in limbo. "All of the projects have 
been delayed at least a year," 
said Judge Norman H. Stahl (l sl 
Cir.), chair of the Judicial Con- 
ference Committee on Security 
and Facilities. "Further delay 



I In- Ihinl Brum h 



limr 1999 



means we risk losing intended sites 
n a very competitive real estate 
narket, and inevitably we will see 
-lighter acquisition and construction 
:osts as time elapses. Most unfortu- 
lately, courts with critical space and 
security needs will not have these 
problems resolved in a timely 
nanner." 



Federal courthouses in the following cities may re- 
ceive funding in FY 2000 for needed repair and alteration 
projects: 



Phoenix, Arizona 
Anchorage, Alaska 
Montgomery, Alabama 



All of the courthouse projects 
vere developed under guidelines 
•ndorsed by Congress in previous 
rears. At Congress' request, the 
udiciary prioritized its courthouse 



construction projects in terms of 
greatest need. The Judiciary also 
has worked with the GSA to revise 
the U.S. Courts Design Guide and 
to stretch construction dollars. 
Despite this, the White House 
ignored Judiciary representatives' 
requests for funding in the FY2000 
budget, a request that was sup- 
ported by 
the GSA. 

In February, 
Administrative 
Office Director 
Leonidas Ralph 
Mecham wrote 
to leaders of the 
Senate and 
House budget, 
appropriations, and authorizing 
committees to urge courthouse 
funding. In February and March, 
Stahl and committee member Judge 
Jane Roth (3 rd Cir.) met with congres- 



Las Vegas, Nevada 
Albuquerque, New Mexico 
Dallas, Texas 



sional committee leaders to discuss 
the much needed funding. In March, 
Roth also testified in support of 
courthouse construction before the 
House Appropriations Subcommit- 
tee on Treasury, Postal Service and 
General Government. 

Meanwhile, judges and AO staff 
continue to keep members of Con- 
gress with courthouse projects in 
their states or districts aware of the 
delays — and of delay ramifications. 
As a consequence, 14 senators and 
representatives wrote leaders of the 
Committee on Transportation and 
Infrastructure to seek their assistance 
in getting authorization for the 
FY2000 courthouse projects. Indi- 
vidual members of Congress also 
contacted members of the House and 
Senate appropriations committees 
and Senate authorizing committees 
in support of the courthouse pro- 
gram, ^v. 



Arnold Receives Devitt Award 



Judge Richard S. Arnold (8 th Cir.) 
5 the recipient of the 17th annual 
•dward J. Devitt Distinguished 
Service to Justice Award. The award 
nnually honors an Article III judge 
vho has achieved an exemplary 
areer and has made significant 
ontributions to the administration of 
istice, the advancement of the rule 
if law, and the improvement of 
ociety as a whole. 

In a distinguished career as a 
irist, Arnold has earned the uni- 
ersal esteem of both his colleagues 
m the federal bench and fellow 
nembers of the bar. Present and 
ormer members of the Judicial 
Conference Executive Committee 
lescribed him in a joint letter as "a 
>illar of strength and a vital member 
if the committee, providing leader- 
hip and continuity. . . . He does not 
year his intellectual brilliance on his 
leeve, and he has always been 
nodest and unassuming in carrying 



out his vital roles as a 
leader of the Judiciary." 

Arnold graduated first in 
his class from Harvard Law 
School, then practiced law 
in Washington, D.C., and at 
his family's firm in 
Texarkana, Arkansas. In 
1978 he was appointed to 
the U.S. District Court for 
the Eastern and Western 
Districts of Arkansas. He 
was elevated to the Eighth 
Circuit Court of Appeals in 
1980 and served as that 
court's chief judge from 
1992 to 1998. A member of 
the Judicial Conference and 
the Conference Executive Commit- 
tee, Arnold also chaired the Confer- 
ence Budget Committee for 10 years. 

The Devitt Award, named for the 
late Edward J. Devitt (D. Minn.), is 
administered by the American 
Judicature Society. This year's award 




Judge Richard S. Arnold 



selection committee consisted of 
Associate Supreme Court Justice 
Clarence Thomas, Judge Phyllis A. 
Kravitch (11 th Cir.), and Judge D. 
Brook Bartlett (W.D. Mo.). £^ 



The Third Branch m June 1999 



Chief Justice Addresses Public Trust and Confidence 



Citing recent surveys that give the 
Judiciary high marks from the 
American public, Chief Justice 
William H. Rehnquist cautioned 
members of state, local, and federal 
judiciaries not to rest on their laurels. 
"The surveys also reveal areas in 
need of improvement, and a varia- 
tion of level of confidence for 
specific components of the system," 
Rehnquist said. 

He addressed his remarks to 
participants at the National Confer- 
ence on Public Trust and Confidence 
in the Justice System, held last 
month in Washington, D.C. A 
coalition of national bench and bar 
organizations organized the confer- 
ence, including the League of 
Women Voters, the Conference of 
State Chief Justices, the American 
Bar Association and the Conference 
of Court Administrators. Judge 
Walter Stapleton (3 rd Cir.), chair of 
the Judicial Conference Committee 
on Federal-State Jurisdiction headed 
a group of 10 federal judges as 
delegates to the Conference, along 
with representatives from the 
Administrative Office and the 
Federal Judicial Center. 

In his remarks to the Conference, 
Rehnquist asked how public confi- 
dence in the judicial system can be 



maintained and built, especially 
when losing litigants, lawyers, 
laymen, editorial commentators and 
legal journals criticize particular court 
decisions. "One would hope that the 
criticism would be informed and 
rational," said Rehnquist, "but as 
Justice David Brewer of our Court 
said more than a century ago: 'True, 
many criticisms may be, like their 
authors, devoid of good taste, but 
better all sorts of criticism than no 
criticism at all.'" 

Rehnquist went on to reject re- 
call of judicial decisions based on 
public opinion. "Recall of judicial 
decisions by some sort of a popular 
mandate ... is too high a price to pay 
for public approval. This does not 
mean that public criticism of judicial 
decisions does not serve a useful 
purpose," said Rehnquist. "Appellate 
judges who rendered a decision may 
later change their minds in response 
to criticism. And as judges of appel- 
late courts resign, retire, or die, public 
opinion through the appointing 
process . . . may change the judicial 
philosophy of the court. This is a slow 
process, but it is the only one consis- 
tent with the idea of an independent 
judiciary. Whatever may be the 
merits or demerits of a poll-driven 
executive or legislature, the specter of 



a poll-driven judiciary is not an 
appealing one." 

Greater public trust and confi- 
dence, consistent with the idea of 
judicial independence, can be 
pursued, said Rehnquist with 
"improved juror utilization, arrange 
ments by which jurors play a more 
active part in the deliberations of a 
court, and giving plain reasons for 
reaching a result." 

In closing, the Chief Justice ex- 
pressed his confidence that the con- 
ference speakers and panels would 
offer more in the way of useful in- 
formation and suggestions. "People 
today are far better educated and far 
more aware of their rights than they 
were when this nation began more 
than two centuries ago," said 
Rehnquist. "Yet the first Chief Justio 
of the Supreme Court of the United 
States, John Jay, said at that time: 
'Next to doing right, the great object 
in the administration of justice 
should be to give public satisfaction. 
Surely this remains a sound maxim 
to guide a conference such as this 
two centuries later." &*^ 



The full text of the Chief Justice's remarks 

to the National Conference on Public 

Trust and Confidence in the Justice 

System is available on the Judiciary's 

Internet site at www.uscourts.gov. 



Senate Begins to Focus on Judgeship Needs 



S. 1145 would create 69 
permanent and temporary 
judgeships. 

Congress "ignores the needs of 
the Federal judiciary at the peril of 
the American people," Senator 
Patrick Leahy (D-VT) warned as he 
introduced S. 1145, the Federal 
Judgeship Act of 1999, to create 69 
permanent and temporary judge- 



ships. Not since 1990 has Congress 
created new judgeships, "endanger- 
ing," said Leahy, "the administration 
of justice in our nation's federal 
courts." In that time, total civil case 
filings have increased 22 percent in 
federal courts. The number of criminal 
cases filed increased 25 percent, with 
the number of criminal defendants 
rising 21 percent. Appeals filings have 
climbed by more than 30 percent. 



"Overworked judges and heavy 
caseloads slow down the judicial 
process and delay justice," said 
Leahy. 

S. 1145 reflects the recommenda- 
tions of the Judicial Conference, 
which agreed at its spring meeting 
to transmit to Congress a request 
for an additional seven permanent 
and four temporary judgeships in 
the courts of appeals and 33 perma- 
nent and 25 temporary district 
judgeships. The 69 judgeships 
requested is up from the 53 judge- 



The Third Branch 



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ships requested two years ago. The 
Conference also asked Congress, as 
does S. 1145, to convert 10 existing 
temporary judgeships to permanent 
positions in the district courts. 

In addition to creating new 
judgeships, S. 1145 would extend 
Article III status to the existing 
federal courts in the Commonwealth 
of the Northern Mariana Islands and 
the U.S. Virgin Islands. 

As the Senate Judiciary Commit- 
tee begins consideration of the 
judgeship bill, Senator Charles E. 
Grassley (R-IA), chair of the Sub- 
committee on Administrative 
Oversight and the Courts, has 
written to Administrative Office 
Director Leonidas Ralph Mecham 
requesting the latest caseload 
statistics for the last five years for 
Bvery jurisdiction affected by the 
Conference's judgeship request. 



Grassley has asked for the documen- 
tation for each court's decision to 
make a judgeship request and a 
description of any support or oppo- 
sition for a judgeship. In addition, 
he has asked for detailed infor- 
mation on the utilization of senior, 
visiting and magistrate judges; 
recommendations by any committee 
or judges group on resource utiliza- 
tion; and non-case related travel by 
judges. 

Juvenile Justice Bill 
Includes Judgeships 

A week before Leahy introduced 
his judgeship bill, the Senate passed 
S. 254, the Violent and Repeat 
Juvenile Offender Accountability 
and Rehabilitation Act of 1999, the 
so-called Juvenile Justice bill. Within 
the miscellaneous provisions of the 



bill's Title XVI, is the Emergency 
Federal Judgeship Act of 1999, 
creating new district judgeships. 
The bill would create three perma- 
nent judgeships for the District of 
Arizona; four permanent judge- 
ships for the Middle District of 
Florida; and two permanent judge- 
ships for the District of Nevada. In 
total filings per judgeship, the 
District of Nevada, the Middle 
District of Florida, and the District 
of Arizona rank among the busiest 
in the nation. 

The judgeships are dependent, of 
course, on the Juvenile Justice bill 
first surviving a House vote with the 
provision intact. Senator Charles E. 
Grassley (R-IA), who has opposed 
new judgeships, has threatened to 
strip out the judgeships at the 
House-Senate conference on the final 
version of the bill. ^^ 



AO Selects Two Proven Leadens to Fill Key Senior Positions 



Two faces familiar to both the 
ederal court family and the Admin- 
strative Office have taken on new 
itles and new duties. Gregory D. 
lummings, formerly chief of the 
VO's Budget Division, has moved 
ip to be the new Deputy Assistant 
Director for the Office of Finance 
md Budget. John M. Hughes, 
ormerly the Deputy Chief Probation 
)fficer for the District of Arizona, is 
he new chief of the AO's Federal 
Corrections arid Super- 
ision Division. He 
ucceeds Eunice Holt 
ones, who retires this 
ummer. 

Cummings began his 
areer in federal 
;overnment in 1974, the 
ear he graduated from 
.atholic University of 
America with a degree 
i economics and 
ccounting. In the next 
4 years with the U.S. 




Gregory D. Cummings 



Secret Service, he served in the 
positions of accounting officer and 
budget officer. In 1988, he joined 
the Executive Office of the Presi- 
dent, where he was budget officer 
for the Office of Administration. 
That was followed by two years 
as director of administration for 
the Office of National Drug 
Control Policy. He joined the 
AO in January 1994 as deputy 
chief of the Budget Division and 
was promoted to chief 
of the Budget Division 
in 1996. 

Hughes has an exten- 
sive background in federal 
corrections. At the start of 
his career in corrections, 
he worked as a supervised 
release counselor for the 
Vera Institute of Justice in 
New York City. He began 
his federal career in 1977 
as a pretrial services 
officer in the Eastern 




District of New 
York. In 1983, 
he joined the 
Federal 
Corrections 
and Supervi- 
sion Division 
of the AO, 
where he 
served as a 
pretrial ser- 
vices specialist 
and a regional 
administrator. 
Promoted to chief of the Division's 
Administrative Services Branch in 
1990, Hughes became chief of the 
Operations Branch in 1993, and, 
beginning in 1995, served as chief of 
the Policy and Planning Branch. He 
also has worked in the AO's Office of 
Management Coordination. Hughes 
is a 1973 graduate of Iona College 
and holds a Master of Public Admin- 
istration degree from New York 
University. £s^ 



John M. Hughes 



The Third Branch m June 1999 






JUDICIAL MILESTONES 



Appointed: Raymond T. Lyons, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the District of New 
Jersey, April 13. 

Appointed: Lorraine Murphy Weil, 

as U.S. Bankruptcy Judge, U.S. 
Bankruptcy Court for the District of 
Connecticut, April 23. 

Appointed: Robert E. Bacharach, as 

U.S. Magistrate Judge for the 
Western District of Oklahoma, 
March 29. 

Appointed: William G. Bauer, as 

U.S. Magistrate Judge for the 
Western District of New York, 
January 4. 

Appointed: Jeffrey W. Johnson, as 

U.S. Magistrate Judge for the Central 
District of California, April 20. 

Appointed: Nancy M. Koenig, as 

U.S. Magistrate Judge for the 
Northern District of Texas, Decem- 
ber 28. 

Appointed: Karen Ballard Molzen, 

as U.S. Magistrate Judge for the 
District of New Mexico, April 
26. 

Elevated: Judge Roger L. Wollman, 

to Chief Judge, U.S. Court of Ap- 
peals for the Eighth Circuit, succeed- 
ing Judge Pasco M. Bowman II, 
April 24. 

Elevated: Bankruptcy Judge Bruce 
I. Fox, to Chief Bankruptcy Judge, 
U.S. Bankruptcy Court for Eastern 
District of Pennsylvania, succeeding 



Bankruptcy Judge David A. Scholl, 
April 5. 

Elevated: Bankruptcy Judge Arthur 
J. Spector, to Chief Bankruptcy 
Judge, U.S. Bankruptcy Court for 
the Eastern District of Michigan, 
succeeding Bankruptcy Judge 
Stephen W. Rhodes, April 14. 

Elevated: Bankruptcy Judge 
Douglas D. Tice, Jr., to Chief 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Eastern District of 
Virginia, succeeding Bankruptcy 
Judge Martin V. B. Bostetter, Jr., 
February 10. 

Elevated: Bankruptcy Judge 
Thomas F. Waldron, to Chief 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Southern District of 
Ohio, succeeding Bankruptcy Judge 
William A. Clark, April 30. 

Senior Status: Judge John M. 
Duhe', Jr., U.S. Court of Appeals for 
the Fifth Circuit, April 7. 

Retired: Chief Judge George W. 
White, U.S. District Court for the 
Northern District of Ohio, February 
26. Q u dge White was incorrectly 
listed in the March issue as taking 
senior status.) 

Retired: Magistrate Judge Rupert J. 
Groh, U.S. District Court for the 
Central District of California, 
January 4. 

Retired: Magistrate Judge Pat 
Irwin, U.S. District Court for the 
Western District of Oklahoma, 
February 28. 



THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site address at 

http://www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond(g'ao. uscourts.gov. 



JUDICIAL BOXSCORE 

As of June 1, 1999 

Courts of Appeals 
Vacancies 
Nominees 

District Courts 
Vacancies 
Nominees 

Court of International Trade 
Vacancies 
Nominees 

Courts with 

"Judicial Emergencies" 



21 
13 



24 



For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Hmmh m Iunel999 



1999-2000 Judicial Fellows Selected 



Amie Clifford, Richard Mendales 
and Mark Miller are the Judicial 
Fellows selected for the 1999-2000 
term. 

The Judicial Fellows Program 
begins each year in late August or 
early September. Founded by Chief 
[ustice Warren Burger in 1973 and 
patterned after the White House and 
Congressional Fellowships, the 
program provides fellows with an 
Dpportunity to study firsthand the 
idministration of justice in the 
federal Judiciary. Typically, Judicial 
Fellows are outstanding individuals 
from diverse disciplinary back- 
grounds who show promise of 
naking a contribution to the Judi- 
nary. 

Richard E. Mendales will be a 
udicial Fellow at the Administrative 
Dffice. He is a professor of law at the 
Jniversity of Miami Law School, 
.vhere his areas of scholarship 
nclude bankruptcy, business associa- 
ions, legal ethics, and securities 
■egulation. He has served as chair of 
he Law School's Disability and 
Placement Committees and of the 
humanities Subcommittee of the 





Mark C. Miller 



Richard E. Mendales 



University Research Council. His 
publications include, "Looking 
Under the Rock: The Disclosure of 
Bankruptcy Issues Under the Securi- 
ties Laws." Mendales received his 
A.B. and A.M. from and is a Ph.D. 
candidate at the University of 
Chicago. He earned his J.D. from 
Yale Law School, and practiced law 
for several years in New York. 

Mark C. Miller will be a Judicial 
Fellow at the Supreme Court. He is 
an associate professor of American 
government at Clark University in 
Worchester, Massachusetts, where 
he received the Outstanding Teacher 
of the Year award, and the Oliver 
and Dorothy Hayden Junior Faculty 
Fellowship Award for excellence in 
teaching and research. His publica- 
tions include "The High Priests of 
American Politics: The Role of 
Lawyers in American Political 
Institutions." Miller received his 
B.A., with high distinction, from 
Ohio Northern University, and his 
J.D. from the National Law Center at 
George Washington University, 
where he was associate editor of The 
George Washington Journal of Interna- 



tional Law and Economics. After law 
school, Miller served as legislative 
assistant for several members of 
Congress, then went on to receive his 
M.A. and Ph.D. in American politics 
from Ohio State University. 

Amie L. Clifford will be a Judicial 
Fellow at the U.S. Sentencing Com- 
mission. She is an assistant solicitor 
in the Office of the Solicitor of the 
Ninth Judicial Circuit, Charleston 
County, South Carolina, where she 
was responsible for the development 
of prosecution and investigation 
protocols for domestic violence 
cases, and the prosecution of domes- 
tic violence related crimes. Clifford 
previously served as an assistant 
attorney general in the Criminal 
Appeals Section of the South Caro- 
lina Attorney General's Office, and 
as a staff attorney with Piedmont 
Legal Service, Inc. She has taught 
and written extensively on criminal 
law and procedure. She co-authored 
The South Carolina Criminal Trial 
Techniques Handbook and she has 
been a contributing author for South 
Carolina Jurisprudence. Clifford 
received her B.A. from Northwestern 
State University of Louisiana, and 
her J.D. from the University of South 
Carolina School of Law. £-^ 




Amie L. Clifford 



The Third Branch m June 1999 



INTERVIEW 



■ 



■ 



- 



10 



Joseph F. Spaniol Jr. Reflects on AO's Role 



Joseph F. Spaniol Jr. joined the 
Administrative Office of the U.S. Courts 
in 1951, just 12 years after its inception. 
His career spanned 34 years and the 
tenures of all the Administrative Office 
directors with the exception of Leonidas 
Ralph Mecham. During those years he 
was first an attorney in the Office of 
Procedural Studies and Statistics, then, in 
the late 1960s, he became the AO's 
attorney for legal affairs in what would 
eventually become the Office of the 
General Counsel. Spaniol left the AO in 
1985 to become Clerk of the Supreme 
Court, but he continues his close ties to 
the AO as consultant to the Rules 
Committee. 



Q. When did you join the 
• Administrative Office, and 
what was the AO like then? 

A # I joined the AO staff in the 
• fall of 1951. Henry P. Chan- 
dler, the first Director to be appointed, 
was still serving as Director. The 
entire AO numbered about 111, all of 
whom were located in the Supreme 
Court Building. Everyone knew each 
other, and we were all acquainted 
with the Supreme Court staff, with 
whom we lunched daily in the court's 
cafeteria. 

When I arrived, the AO consisted 
of four divisions: the Business Ad- 
ministration Division, the Bankruptcy 
Division, the Probation Division, 
and the Division of Procedural 
Studies and Statistics, where I was 
originally assigned as an attorney. At 
that time the Division was responsible 
for most of the legal work in the AO, 
including services to most Judicial 
Conference committees. The 
division's first responsibility, of 
course, was to compile information on 
the operation of the courts and to 



publish statistics on cases being filed. 
A small staff compiled the statistics. 
Also, the division regularly sent its 
attorneys (there were only three or 
four) into the field to inspect court 
dockets and to file reports usually in 
connection with the need for more 
judges. 

The AO remained in the Supreme 
Court Building until after Henry 
Chandler's retirement in 1956. 
About a year elapsed before 
Chandler's successor was named 
by the Supreme Court and during 
that period the AO began moving to 
new quarters in southwest Washing- 
ton. In 1958, Warren Olney III 
became the new director. He and 
the deputy director, however, kept 
their offices in the Supreme Court 
building. 



Q 



What was happening in the 
courts at that time? 



A. Following World War II, the 
• caseloads of the courts be- 
gan growing. Congress responded 
with new judgeship bills in 1949, 
1954, and 1961. With more judges 
came a need for more personnel 
and additional courtrooms and 
facilities. Growth produced new 
programs. To deal with them, the 
Judicial Conference authorized 
the Chief Justice to appoint a new 
Committee on Court Admini- 
stration. That committee immedi- 
ately began reviewing and making 
recommendations on such matters 
as the tenure of chief judges, the 
retirement of judges, the represen- 
tation of district judges on the 
Conference, and compensation for 
widows of judges. These were 
unusually busy and exciting times in 
the AO. 




Joseph F. Spaniol Jr. 



Q 

AO? 



Was there thought then of 
building an office just for the 



A. Early on, Olney looked into 
• the prospects of constructing 
a new building on property located 
immediately behind the Supreme 
Court building that would house the 
entire AO staff. Preliminary archi- 
tectural drawings were even made, 
but opposition by those who wanted 
to preserve the existing historical 
buildings on that site and a general 
lack of interest doomed the project. 



Q 



. How did Director Olney put 
• his mark on the AO? 



A. Olney' s management style 
• was different from that of his 
predecessor. Henry Chandler had 
been involved with all aspects of the 
work of the AO. Director Olney 
delegated the responsibility for 
managing the day-to-day activities 
of the AO to others so that he and 
the deputy director could be free to 
work on special problems and 
projects. Two new assistant director 
positions were created, one for 
administration with responsibility 
for the Division of Business Adminis- ^ 



The Third Branch m June 1999 



ation, and the other for legal and 
gislative affairs with responsibility 
r the Division of Procedural 
udies and Statistics and the Bank- 
iptcy and Probation Divisions. It 
orked out very well for a while, but 
ithin a year or so the assistant 
rector for legal affairs resigned and 
at position was abolished in favor 
creating the Office of General 
Dunsel. 

Director Olney wanted to add 
me professional skills to some 
eas of the AO. He created a 
parate Division of Personnel and 
red a professional expert to head it. 
e also hired an expert from GSA to 
indie building acquisition and 
ace matters with the GSA. By the 
ne Olney retired, the AO staff had 
nost doubled in size. 
Olney was in large measure 
sponsible for the Federal Judicial 
?nter. A Judicial Conference 
)mmittee with AO staff assistance 
is holding seminars for judges, 
rticularly newly appointed district 
iges, on a part-time basis. Olney 
ggested the creation of a separate 
dt within the Judiciary to work 
U-time on research and training 
d pushed hard for its creation. He 
io will be remembered for his work 
drafting what became the Federal 
agistrates Act and for his work in 
plementing the Criminal Justice 
:t of 1964. 



2 



. Who succeeded Director 
• Olney? 



V # Ernest C. Friesen, Jr. suc- 
A. • ceeded Olney. He was a 
ented administrator with a fine 
ckground in judicial administra- 
n and had been the assistant 
orney general for administration 
der Attorney General Ramsey 
irk, but he served as the AO 
ector for only about two years, 
t they were extremely busy years. 
The Federal Magistrates Act had 
:ome law just before Olney retired. 



The Act required the Director to 
conduct a survey of the entire 
country and to make recommenda- 
tions for the number, locations, and 
the salaries to be paid to the magis- 
trates initially appointed under the 
Act. The task was quickly under- 
taken. 

Friesen also helped the new FJC 
get established. He worked closely 
with Justice Tom Clark, the Center's 
first Director. They both wanted to 
secure contiguous space so that the 
FJC and the AO would be side-by- 
side. They managed to acquire 
historic Dolley Madison House on 
Lafayette Square, near the White 
House, for the first home of the 
FJC, and the Cosmos Building next 
door to house most of the AO staff. 
Three divisions — Business Adminis- 
tration, Personnel, and Procedural 
Studies and Statistics — were located 
across the street in the Lafayette 
Building. 

About the time Earl Warren 
retired as Chief Justice, Friesen 
left the AO to form the Institute of 
Court Administration in Colorado. 
In 1970, the Supreme Court selected 
Rowland F. Kirks to be the fourth 
Director of the AO. Kirks changed 
the alignment of divisions in the 
AO to offer better service to the 
courts and to the Conference, 
added new divisions, and contin- 
ued the close relationship with the 
FJC that Friesen had established. 
After more than seven years in 
office, Director Kirks became ill and 
died. 

William E. Foley, who was then 
the deputy director, was selected by 
the Supreme Court to succeed Kirks. 
Foley had been the deputy director 
for 13 years and because of his 
experience had worked closely with 
Kirks on all matters of organization 
and policy. Thus his transition to the 
Directorship meant a continuance of 
the policies then in force. But the 
work at the AO did grow a great deal 
under Foley and changes were made 
as needed. 



Q 



What services were the courts 
asking for from the AO? 



A. By the time Foley became the 
• Director, the courts were 
asking for automation. The AO was 
already automating the entire 
Judiciary payroll. Statistical compila- 
tion was automated, as were pay- 
ments made to compensate lawyers 
appointed under the Criminal Justice 
Act. But the courts were now asking 
for automated dockets. Development 
started out at the FJC, and there was 
a joint committee on automation 
chaired by assistant directors from 
the AO and the FJC. The appropria- 
tions committees in Congress felt, 
however, that the FJC should devote 
itself to research and training, so the 
docket automation project, together 
with staff was gradually shifted to 
the AO and a new Automation 
Division was created. That division 
soon began offering direct help to the 
bankruptcy courts. The number of 
bankruptcy cases was increasing and 
the bankruptcy courts were seeking 
help in processing notices. At one 
time the AO had a computer — huge 
for its day — that processed thou- 
sands of notices for bankruptcy 
courts across the country. 

During Kirks' tenure the office of 
circuit executive was created. 
Selections were made and later on 
the executives began asking for a 
little more control over the expendi- 
ture of funds so they could better 
administer their circuits. Under 
Foley, limited authority was first 
extended and that set the ground- 
work for later decentralization. 



Q 

the AO? 



Was William Foley the last 
director you served under at 



A. That's right. Ralph Mecham 
• and I were sworn in on the 
same day in 1985; he as Director of 
the AO, and I as the Clerk of the 
Supreme Court. &^ 



11 



The Third Branch 



June 1999 



■ 



; ■ 



■ 



National Conference Looks at Increasingly Dangerous Population 


specialists in district < 






address how treatment issues affect 


Over 300 federal probation and 


priority and we are committed to 


the supervision of offenders and 


pretrial officers attended the first 


providing adequate resources to 


defendants. Nationally known 


National Substance Abuse and 


accomplish the mission of the court." 


experts conducted a series of 


Mental Health Conference in New 


He also expressed his appreciation 


workshops that ran the gamut of 


Orleans last month. Although re- 


for the fine work of the officers on 


"hot issues" in supervision, includ- 


gional conferences have been held in 


the front line of correctional treat- 


ing such topics as communicable 


the past, this was the first time 


ment. "You are the experts the courts 


diseases, federal prison drug 


officers from every federal court had 


look to for treatment and sentencing 


abuse programs, medications, 


gathered for a national Conference 


options, and direction in dealing 


drug addiction, and the physiologi- 


on this topic. The Conference was 


with offenders," said Butler. 


cal effects of drugs and alcohol on 


appropriately entitled, "Meeting 


In recent years, there has been a 


the body. Experts also discussed 


the Challenge of the New Millen- 


dramatic increase in substance abuse 


treatment issues for women, inter- 


nium." 


and mental health defendants and 


viewing strategies for the inves- 


Chief Judge Charles R. Butler, Jr. 


offenders. Ten years ago, 17,409 


tigation and supervision of sex 


(S. D. Ala.), a member of the Judicial 


offenders required treatment. In 


offenders, the warning signs of 


Conference Committee on Criminal 


1998, 48,914 persons were ordered 


relapse, and the legal issues sur- 


Law, welcomed conference partici- 


by the courts to have either drug 


rounding mental health cases. 


pants. "Our committee members are 


treatment or mental health treat- 


Presentations were accompanied 


very well aware that substance abuse 


ment, either pretrial or during post- 


by problem-solving models to 


and mental health cases are the most 


conviction supervision. 


ensure that participants had the 


difficult to supervise. They are 


The four-day conference was 


opportunity to exchange ideas and 


dangerous, highly unpredictable, and 


conceived as a forum for staff in the 


learn from problems. Many presen- 


raise officer safety issues," said 


Administrative Office Federal 


tations were videotaped and will be 


Butler. "Appropriate supervision of 


Corrections and Supervision Divi- 


used for future distance learning 


these offenders is a committee 


sion and for drug and mental health 


training, £v^ 


THE THIRD BRANCH 

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THE 



THIRD 

BRANCH 

ludiciary Sees Crisis in FY2000 Budget Bill 



The Senate Appropriations Com- 
uttee has reported out a Judiciary 
ppropriations act for fiscal year 2000 
lat is so tight, the federal Judiciary 
ill face a serious shortfall if it is 
nacted into law. S. 1217, the Depart- 
lents of Commerce, Justice, and 
tate, the Judiciary, and Related 
gencies Appropriations Act of 1999, 
aves the Judiciary with insufficient 
inds to support current services in 
Y 2000. 

The full committee recommended 
i appropriation of $3.8 billion for FY 
)00 for the Judiciary. The Senate is 
cpected to consider the bill when it 
-turns from its July 4th recess. The 
ouse Appropriations Committee 
is yet to schedule consideration of 
milar legislation. 

In a letter to congressional leaders, 
dministrative Office Director 
?onidas Ralph Mecham wrote, "The 
mate mark reflects an actual reduc- 
Dn below current services. The 
idicial Branch requires an increase 

$267 million just to remain even 

current services and to provide 
odest increases in critical areas 

court security and defender ser- 
ces. . . . The Judiciary urges Con- 
'ess to take whatever measures nec- 
sary to ensure that the Third Branch 



Newsletter 
of the 
Federal 
Courts 



p \*jVol. 31 
Number 7 




receives the funds necessary to pro- 
vide the kind of justice to this nation's 
citizens that is guaranteed under the 
Constitution and the laws of the 
land." 

Shortfalls will occur in nearly all 
Judiciary programs. There is a $211 
million shortfall in the Salaries and 
Expenses account, a $43 million short- 
fall in Defender Services, and a $10 
million shortfall coming for Court 
Security. Only the Fees for Jurors ac- 
count was fully funded. 

The full committee report acknowl- 
edges that "steady growth in costs 
associated with Defender Services, 
court security, GSA rental payments, 
and pay and benefits at a time of de- 
clining resources is putting serious 
pressure on the Judiciary budget." 
The committee urged the Judiciary to 
"make every effort to contain manda- 
tory costs." 

However, unlike the Executive 
Branch, the Judiciary does not have 
projects that can be cut. Mecham 
wrote, "Congress and the Depart- 
ment of Justice determine the 
Judiciary's workload. Litigants can- 
not be turned away. The many 
thousands of felons under probation 
cannot be released from supervision. 
See Crisis on page 2 



INTERVIEW 




Hearings on Judicial Nominees Resume pg.2 

Hearing Held on Federal Courts Improvement Act pg.3 

Oldest Active Federal Judge Dies pg.5 



Judge Wm. Terrell Hodges represented the 
Judicial Conference in hearings before 
congressional committees. 

Opportunity and 
Challenge: An 
Interview with Judge 
Wm. Terrell Hodges 

Judge Wm. Terrell Hodges was 
appointed to the District Court for the 
Middle District of Florida in 1971. He 
has served on Judicial Conference 
committees since 1982. He has been a 
member of the Executive Committee 
since 1994, and the committee's chair 
since 1996. 

See Interview on page 9 



Crisis continued from page 1 

If Congress expects the Judiciary 
to perform the work Congress as- 
signs, then funding must be pro- 
vided." 

Mecham noted a shortfall of $211 
million in funding for court staff that 
could leave vacant positions unfilled 
and furlough or layoff approximately 
2,300 currently funded staff — during 
a time of increasing civil, criminal, 
and bankruptcy cases. Some districts 
would have difficulty complying 
with the time requirements of the 
Speedy Trial Act, fewer civil cases 
could be processed, bankruptcy cases 
would be delayed, and probation 
officers would need to reduce the 
amount of time spent supervising 
felons. Courts would have insuffi- 
cient funding to adequately support 



court operations, maintenance, and 
service to the public. 

In the Defender Services area, the 
Judiciary would not be able to pay 
court appointed panel attorneys 
after June — even though the Con- 
stitution and the Criminal Justice 
Act (CJA) require the appointment 
of representation for defendents 
unable to pay for counsel. Attorneys 
unwilling to accept CJA appoint- 
ments due to deferred payments 
could cause trials to be postponed or 
delayed. At a time of increasing 
threats to judicial officers, court 
security also would be impinged, 
with cuts to court security officer 
staffing and reductions to, or elimi- 
nation of, physical security systems 
enhancements. 

The Senate committee, in its report, 
recommended the U.S. Sentencing 



Commission r<< ave less than half its 
requested FY 2000 appropriation. 
Further, the Committee recom- 
mended that the Judiciary reassess 
the Commission's necessity and that 
a phase-out plan for the Commis- 
sion be provided before November 
31, 1999, if no commissioners have 
been appointed by October 1, 1999. 
(See article on page 6.) At that time 
the Commission would have been 
without commissioners for a year. 
"The Committee observes that the 
carriage of justice has continued 
unabated in the absence of commis- 
sioners," the report explains. No 
amendments can be made to the 
U.S. Sentencing Guidelines, nor 
action taken on congressional dir- 
ectives without at least four commis- 
sioners actively serving on the U.S. 
Sentencing Commission. 



- 

•v 



Hearings on Judicial 
Nominees Resume 

At its first judicial nomination 
hearing of the year, on June 16th the 
Senate Judiciary Committee consid- 
ered eight nominees — two for the 
courts of appeals and six for the dis- 
trict courts. A week later five district 
court nominees were reported out by 
the Committee and sent to the Senate 
where they were confirmed just 
before the July 4 th recess. The three 
remaining nominees, including two 
nominees to the 9th and 2nd Circuits, 
weren't reported by the committee 
until the last week of June and the 
Senate did not act on them. Earlier 
this year the Senate confirmed two 
district judges who were hold-overs 
from the previous Congress. 

According to various published re- 
ports, judicial nomination hearings 
were stalled this year because of dis- 
agreements between the Clinton 
Administration and the chairman of 



the Senate Judiciary Committee, 
Senator Orrin Hatch (R-UT), over the 
nomination of Utah lawyer Ted 
Stewart. 

The purported standoff came to 
an end with the hearing on June 16th. 
Hatch and the President reportedly 
have come to an understanding that 
if Stewart, currently chief of staff to 
the Governor of Utah, is approved 
by the FBI and the ABA, he will be 
nominated. In addition, Senator 
James Inhofe (R-OK), who had 
objected to the recess appointment of 
James Hormel as ambassador to 
Luxembourg and threatened to hold 
all civilian nominees from consider- 
ation, has removed his objection. 

The decision removes an addi- 
tional impediment to Senate consid- 
eration of nominations. 

In a statement released at the 
Judiciary Committee hearing, 
Ranking Minority Member Patrick 
Leahy (D-VT) cited Chief Justice 
William H. Rehnquist's 1998 Year 
End Report on the Judiciary that 
warned, "Vacancies cannot remain at 



such high levels indefinitely 
without eroding the quality of 
justice that traditionally has been 
associated with the federal judi- 
ciary." Leahy pushed for more 
hearings to be held soon on pend- 
ing judicial nominees. 

In his own statement Hatch said, 
"I am confident that by the end of 
the Session, the Committee will 
have done a fair and even-handed 
job of evaluating and approving 
judicial nominees — just as it has 
done in previous years." Hatch 
said that it was his expectation that 
the work of the committee would 
continue at a reasonable pace 
throughout the year. 

As of July 1 there were 40 judi- 
cial nominees pending for 69 vacan- 
cies. While no new judgeships have 
been created in nearly nine years, 
S. 254, the Senate-passed juvenile 
justice bill, and H.R. 1501, the 
House-passed version of the bill, 
would create district court judge- 
ships in Arizona, Nevada, and the 
Middle District of Florida. £v^ 



/ he lliinl Bra/a // 



Inly I 



H.R. 1752 Addresses 
Needs of Federal 
Court System 



A representative of the Judicial 
Conference appeared before Con- 
gress last month to urge passage of a 
bill that would improve the effective- 
ness and efficiency of the federal 
Judiciary. Judge Harvey Schlesinger 
(M.D. Fla.), chair of the Conference 
Committee on the Administration of 
the Magistrate Judges System, 
testified before the House Judiciary 
Subcommittee on Courts and Intel- 
lectual Property on H.R. 1752, the 
Federal Courts Improvement Act of 
1999. Magistrate Judge Joel B. Rosen 
(D. N.J.) also testified at the hearing 
on behalf of the Federal Magistrate 
Judges Association, of which he is 
president. He was accompanied by 
Magistrate Judge Robert B. Collings 
(D. Mass.). 

The bill contains 42 separate 
provisions and touches upon a wide 
range of issues including federal 
court jurisdiction, the authority of 
judicial officers and judicial branch 
personnel, and administrative 
Dperations. Twenty-nine of the bill's 
provisions passed the House last 
Congress in the bill, H.R. 2294. In the 
106th Congress, H.R. 1752 was 
ritroduced in the House by subcom- 
mittee chair Howard Coble (R-NC) 
md ranking subcommittee member 
toward L. Berman (D-CA). 

In his testimony on H.R. 1752, 
schlesinger addressed a provision 
hat would provide magistrate 
udges with summary criminal 
:ontempt authority to punish any 
nisbehavior occurring in their 
presence. "The need for power to 
mmediately vindicate the court's 
luthority in the face of disruptive 
>ehavior," Schlesinger told the 
subcommittee, "exists whenever a 

See H.R 1752 on page 4 



H.R. 1752, the Federal Courts Improvement Act of 1999, contains 
provisions touching on a wide range of issues, some of which 
would: 



Provide that, unless the party files 
a timely objection to a bankruptcy 
judge's proposed findings of fact 
and conclusions of law, that party 
will be deemed to have consented 
to them and they become final. 
The Department of Justice op- 
poses this provision. 

Authorize the reimbursement of 
the Judiciary from the Asset For- 
feiture Fund for costs arising from 
the forfeiture of assets of defen- 
dants. DOJ opposes this provision 
as an inappropriate mechanism. 

Increase filing fees for certain 
bankruptcy cases to reflect more 
accurately the resources required 
to process the case and to correct 
inconsistencies. DOJ opposes al- 
lowing bankruptcy administrators 
to place Chapter 1 1 quarterly fees 
into a fund to be used by the en- 
tire Judiciary. 

Create certifying officers in the ju- 
dicial branch to enhance financial 
accountability and improve utiliza- 
tion of administrative resources. 

Provide the Judiciary with the au- 
thority to set, collect, and retain 
fees for the use of electronic filing, 
videoconferencing and electronic 
evidence presentation devices. 
DOJ opposes the imposition of 
these fees on government agen- 
cies. 

Repeal in-state plaintiff diversity 
jurisdiction. DOJ opposes this 
provision's modification of diver- 
sity jurisdiction. 

Provide statutory authority for 
bankruptcy administrators in Ala- 
bama and North Carolina to ap- 
point trustees, examiners, and 
committee of creditors. DOJ has 
reservations about the efficacy of 
this provision. 

Extend statutory authority for mag- 
istrate judge positions to be estab- 



lished in the district courts of Guam 
and the Northern Mariana Islands. 

Establish a place of holding court in 
the Eastern District Of Texas. 

Reauthorize the federal substance 
abuse treatment program for fiscal 
year 1 999 and subsequent years. 

Allow a transferee judge to retain 
cases for trial or transfer those 
cases to another judicial district for 
trial (Multidistrict Trial Jurisdiction 
Act of 1999). 

Provide for participation of senior 
judges as members of the circuit ju- 
dicial councils, as recommended in 
the Long Range Plan for the Federal 
Courts. 

Modify the "rule of 80" to permit a 
judge with 20 years in service who 
has reached age 60 to take senior 
status, although the minimum age 
for a judge's retirement remains age 
65 with at least 1 5 years in service. 

Permit the U.S. Court of Appeals for 
the Federal Circuit to appoint a clerk 
of court/circuit executive. 

Amend the Jury Selection and 
Service Act to permit the chief judge 
to authorize the clerk of the court, 
under supervision of the court, to 
determine whether persons are 
qualified, unqualified, exempt, or 
excused from jury service. 

Shorten the number of days that a 
juror is required to serve before he 
or she is eligible for the supplemen- 
tal daily fee. 

Exempt federal public defender 
organization officers and employees 
from the Federal Tort Claims Act for 
claims related to representational 
services. 

Eliminate the mandatory retirement 
age for the Director of the Federal 
Judicial Center, now set at 70. 



The Third Branch m July 1999 



4 



H.K1752 continued from page 3 

magistrate judge presides 
for the district court regard- 
less of litigant consent." 

Rosen testified that the 
bill limits the penalties 
imposed by magistrate 
judges in contempt situa- 
tion, but provides the 
authority needed to conduct 
the business of the district 
court effectively. The 
provision was contained in 
H. R. 2294, which passed 
the House in the last 
Congress. The Department 
of Justice has expressed the 
view that this exercise of 
contempt authority could be 
held unconstitutional, as a 
power belonging solely to 
Article III judges. 

Schlesinger also testified in favor 
of a provision that directly relates 
to the personal safety of federal 
judicial officers. Because of safety 
concerns raised by a significant 
increase over the past 10 years in 
threats against judges and their 
families, federal judicial officers 
may choose to carry firearms. A 
provision in H.R. 1752 would effec- 
tively require judges who carry 
firearms to successfully participate 
in a training and safety program. The 
provision also would provide that 
federal judges are, in most circum- 
stances, exempted from state and 
local firearms laws and regulations. 
"When they cross state lines, the 
firearms license from their home 
state loses its effect," said 
Schlesinger. "Because of this, judges 
in travel status often are not able to 
be armed. Clearly, if a judge is in 
danger, the fact that he or she is in 
one state or the other does not 
eliminate the danger." 

H.R. 1752 also would repeal the 
automatic excuse from jury service 
now granted to members of the 
Armed Forces, members of fire and 
police departments, and public 







Testifying before the House Judiciary Subcommittee on Courts and 
Intellectual Property on the Federal Courts Improvement Act of 1999 were 
Magistrate Judge Joel B. Rosen (D. N.J.), Magistrate Judge Robert B. 
Codings (D. Mass.), and, for the Judicial Conference, Judge Harvey 
Schlesinger (M.D. Fla.). 



officials — which even bars from 
service elected or appointed officials 
such as school board officials, state 
legislators, as well as secretaries and 
clerks appointed by these officials. 
"These exemptions were established 
in 1948 on the assumption that it 
would be a waste of time to include 
on juries persons whose jobs affect 
public health, safety, or welfare," 
Schlesinger testified. "More recent 
experience has indicated, however, 
that many individuals who fall 
within the scope of these exemptions 
could easily serve." 

H.R. 1752 also addresses recom- 
mendations of the Federal Courts 
Study Committee; improvements to 
the judicial process including 
limitations on the removal to federal 
court of cases under the Employee 
Retirement Income Security Act; the 
elimination of in-state plaintiff 
diversity jurisdiction; a modification 
of the "Rule of 80" to allow judges 
to take senior status at age 60 with 
20 years of service; and expanded 
workers' compensation coverage 
for jurors, the elimination of the 
public drawing requirement for 
selection of juror wheels, and other 



modifications to the 
jury selection 
process. 

Title V of the bill 
would increase the 
maximum compen- 
sation amounts for 
Criminal justice Act 
attorneys by ap- 
proximately the 
rate of inflation 
since 1986 (43.3 
percent), the last 
year case compensa- 
tion maximums 
were increased. 
The section also 
would change the 
case compensation 
maximum appli- 
cable to counsel 
representing non- 
capital habeas 
corpus petitioners, as well as the 
compensation maximums of investi- 
gators, experts, and other service 
providers. It is not anticipated the 
changes would have a significant 
budgetary impact because chief 
judges of the courts of appeals (or 
their designees) already have the 
authority to approve compensation 
in excess of the statutory Limits in 
appropriate cases. 

The complete text of the Federal 
Courts Improvement Act of 1999 can 
be found on the Judiciary's website 
at www.uscourts.gov. under "What's 
New." 

The subcommittee also heard 
testimony on H.R. 2112, the 
"Multidistrict, Multiparty, 
Multiforum Jurisdiction Act of 1999." 
The bill was introduced by Rep- 
resentative James Sensenbrenner 
(R-WI), and would amend the 
multidistrict litigation statute by 
allowing a transferee court to retain 
jurisdiction over referred cases for 
trial, or refer them to other districts. 
Judge John F. Nangle, chair of the 
Judicial Panel on Multidistrict 
Litigation, testified in support of the 
legislation. ^^ 



The Third Branch m July 1999 



Judges' COLA 
Remains on Track 

While S. 1217, the Departments of 
Commerce, Justice, and State, the 
Judiciary, and Related Agencies 
Appropriations Act of 1999, is 
notable for what it lacks in terms 
of funding for the Judiciary, it does 
contain some good news for federal 
judges — a waiver of section 140 
of P.L. 92-97. Section 304 of the bill 
would permit a cost-of-living adjust- 
ment for justices and judges of the 
U.S in fiscal year 2000, assuming a 
COLA is not otherwise prohibited. 
Congress must take positive action, 
in the form of a waiver of section 140, 
if judges are to receive a COLA of 
3.4 percent in January 2000. The 
adjustment is provided under the 
Ethics Reform Act of 1989. The 
Treasury And General Government 
Appropriation Bill 2000 passed by 
the Senate is silent on a COLA for 
judges. 

Federal judges have received only 
a single COLA since 1993, a nominal 
2.3 percent increase. In that time, 
federal judges have seen the value of 



their salaries decline by about 16.42 
percent when measured against the 
Consumer Price Index. Since 1993, 
circuit judges and district judges 
have lost about $81,876 and $77,206 
in purchasing power, respectively. 
However, the S.1217 provision 
may not be enough to guarantee a 
COLA. The House has less money 
to work with than the Senate, so 
budget cuts could endanger any 
COLA for House staff, and it 
would be highly unlikely members 
of Congress would give themselves 
an increase when their staffs go 
without. Further, Representative 
Porter J. Goss (R-FL) recently 
introduced legislation that, if en- 
acted, would provide that a mem- 
bers' COLA could be no higher than 
a similar adjustment for Social 
Security recipients. For fiscal year 
2000, this could result in something 
less than a 3.4 percent pay adjust- 
ment. 

Judge David Hansen (8th Or.), in 
his capacity as chair of the Judicial 
Conference Committee on the 
Judicial Branch, with other federal 
judges, the federal judges associa- 
tions, Administrative Office Director 
Leonidas Ralph Mecham, and 



Oldest Active Federal Judge Dies 

Judge Giles Sutherland Rich, U.S. 
Court of Appeals for the Federal 
Circuit, died last month at the age of 
95. He never took senior status, 
ilthough he would have been eligible to 
io so 27 years ago. Chief Judge Haldane 
Robert Mayer (Fed. Cir.) sat with 
Rich on a case a month before his 
ieath. In announcing Rich's passing to 
'he court Mayer said, "The law has 
ost a legend, the court has lost an 
nstitution, and we all have lost a 
riend. But what a wonderful long life he 
tad. " A special session of the court will 
le held September 27 to commemorate 
he life and career of Judge Rich. For 
vrther information on the session, judge Giles S. Rich (Fed. Cir.) 




Administrative Office staff, continue 
to press congressional leaders to give 
federal judges a COLA, and to waive 
section 140. Leaders have been 
generally supportive, but in light of 
the budget outlook, are less encour- 
aging than at the start of the budget 
process. 

In the area of pay compression, 
however, the picture may be 
brighter. A provision doubling the 
President's salary, effective January 
20, 2001, passed the House Appro- 
priations Subcommittee on Trea- 
sury, Postal Service and General 
Government. The raise could ease 
the problem of pay compression 
that is squeezing the salaries of 
other high-level government offi- 
cials. 

Ironically, the pay restraint 
pressures are arising just as Execu- 
tive Branch agencies are starting to 
experience pay-related recruitment 
and retention problems. The 
PriceWaterhouseCoopers Endow- 
ment for the Business of Govern- 
ment recently cautioned that "inad- 
equate salaries [may] become a 
major obstacle to both recruiting and 
retaining senior career civil ser- 
vants." £s. 



contact the Office of the Clerk, Federal 
Circuit. 

The following are excerpts from a 
1994 Third Branch interview with Rich. 

Judge Giles Sutherland Rich (Fed. 
Cir.) said there are three reasons 
why he has never taken senior status 
with its reduced caseload and 
relaxed lifestyle that some choose 
after meeting the statutory age and 
service requirements. "First, I like 
my work," said Rich. "Second, I 
think I'm doing something useful 
and that gives me a great deal of 
satisfaction. Third, I can't imagine 
what I would do if I retired." With a 
full caseload and no plans for senior 
status in sight, Rich is on the road to 



See Rich on page 6 



The Third Branch m July 1999 



Rich continued from page 5 

being the oldest active federal judge 

ever. 

"I think retirement shortens your 
life," Rich said. "I have seen it 
happen all too often. The way I keep 
up with what's going on in the world 
is through a constant stream of 
young law clerks. We have lunch 
together nearly every day, and they 
keep me up to date," said Rich. 

Born May 30, 1904, in Rochester, 
New York, Rich began his legal 
career in his father's New York City 
patent and trademark law firm in 
1929. He rapidly developed an 
expertise in the field and today is 
widely regard as "the dean of 
modern patent law. Active in the 
New York Patent Law Association 
and a recognized lecturer on patent 
law, Rich was nominated to the 
Court of Customs and Patent Ap- 
peals (CCPA) in 1955 by President 
Eisenhower. 

Rich said he recalls reporting to 
work on the CCPA and asking the 
chief judge how much staff he could 
hire. "I was told I could have either a 
secretary or a law clerk," said Rich. 
"The old CCPA was a sleepy place 
that heard less than a hundred cases 
a year — all en banc. I used to have 
time to play around in my dark 
room at home and vacation in the 
weekend place I built in Newtown, 



Connecticut." Now, Rich said, the 
CCPA's successor court, the Court of 
Appeals for the Federal Circuit 
(CAFC) sits throughout the year 
without a recess. When Rich and his 
wife manage to get away to their 
Connecticut home, the fax machine 
there runs constantly. "If you don't 
keep up, the work piles up, so I use 
the fax machine as a link with the 
court when I am out of town." 

With the merger of the CCPA and 
the U.S. Court of Claims on October 
1, 1982, Rich became a judge on the 
newly created CAFC. Rich admits to 
some degree of uncertainty when he 
first learned that his docket would 
expand beyond intellectual property 
and customs cases. "At first I told 
people that I was not delighted but 
diluted," Rich recalls. "But as time 
went on I also became delighted and 
have found the experience to be 
intellectually broadening." Rich 
added that the "court has been a 
huge success in terms of clarifying 
patent law." In addition to hearing 
appeals from the Patent and Trade- 
mark Office, the CAFC's docket also 
includes cases from all of the U.S. 
district courts in patent suits, from 
the U.S. Court of Federal Claims, the 
U.S. Court of Veterans Appeals, the 
International Trade Commission, the 
Merit Systems Protection Board, and 
the Board of Contract Appeals. 



After 27 years in private pra< 
14 years of part-time teaching, and 
nearly 39 years on the bench [as of 
1994], Rich has no difficulty singling 
out a career highlight. More than 
four decades ago, Rich was on the 
two-man drafting committee of the 
bar group that drafted the Patent 
Act of 1952, which revolutionized 
the standard for issuing patents. 
Perhaps most noteworthy to Rich 
were the succeeding 14 years that 
he spent speaking, writing, and 
trying to convince others of the 
impact of the act, which replaced 
the undefinable, judge-made re- 
quirement of "invention" with the 
more concise statutory concept of 
defined "nonobviousness" (35 U.S.C. 
§ 103). Rich said, "Judges were not 
applying the new act, and I was 
concerned that it would be adjudi- 
cated out of existence as the same old 
law merely 'codified.' One of the 
greatest things I think I did was to 
make certain, from my strategic 
position on the CCPA, that this did 
not happen." 

As Rich approaches his ninetieth 
[in 1994] birthday, the excitement 
and focus remain. "As long as I find 
the work challenging and interesting 
and feel that I can continue making a 
contribution, I plan on being here," 
said Rich. "It sure beats living in a 
retirement home." £-^ 



Commission Members to be Nominated 



President Clinton has announced 
he will make seven nominations to 
the U.S. Sentencing Commission 
after the July 4 th recess. The Commis- 
sion has been without commissioners 
since the end of the 105th Congress 
last October, when the terms of the 
last three members expired and 
the Commission chair, Judge Richard 
P. Conaboy, resigned October 31, 
1998. 

The nominees are Judge Diana E. 



Murphy (8th Cir.), who would serve 
as chair; Judge Ruben Castillo (N.D. 
111.); Judge Sterling Johnson, Jr. (E. D. 
NY); Judge Joseph Kendell (N.D. 
Tex.); Judge William K. Sessions (D. 
Vt.); Michael O'Neill, assistant 
professor of law, George Mason 
University School of Law; and John 
R. Steer, General Counsel of the 
Sentencing Commission. The nomi- 
nees must be confirmed by the 
Senate. 



By statute, the President appoints 
Commission members with the ad- 
vice and consent of the Senate. One 
member is appointed by the Senate 
as chair, and three members by the 
President as vice-chairs. At least 
three of the members shall be federal 
judges, and not more than four of the 
Commission members shall be mem- 
bers of the same political party. Of 
the three vice-chairs, not more than 
two shall be members of the same 
political party. A quorum of four 
commissioners is required to amend 
the U.S. Sentencing Guidelines. 



The Third Branch m July 1999 





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PACER Arrives 
In the Net 



Public Access to Court Electronic 
Records (PACER) has come to the 
nternet. Once accessible only by a 
nodem and dialing directly to the 
'ACER system, selected court 
iystems now may be reached just 
ike other websites. 

To access, visit the Judiciary's 
vebsite at www.uscourts.gov, click 
m Wliat's Nezv, and you'll come to 
he link to Electronic Public Access. 
Hick again, and you're at the 
'ACER Service Center on the 
nternet. 

PACER is an electronic public 
iccess service that allows users to 
>btain case and docket information 
rom federal appellate, district, and 
>ankruptcy courts, and from the U.S. 
'arty/ Case Index. Presently seven 
lankruptcy and district courts are on 
he web with PACER, but over the 
text few months more than 90 sites 
re expected to be added. 

Using PACER — either dial-in or 
m the Internet — is fast and simple, 



Eile Edit yiew £o Communicator Help 




Jl 3 & a, *» «» £ « 

Sack Reload Home Search Guide Security 


52 


. Bookmarks A Location |h«p ,//tS6 132 10 S/e P », 


1 


. -;^l : i: ... Administrative Office of The US Courts 




7^j^5iV rf Electronic Public Access Program 


^P KI'A Working Group (jjfi PACER Overview 


^^Telecomunicalion ,^^ 

W Program W Fre 1 uen "y Asked Questions 




y0 EPA Grants JK Directory Of EPA Services 




(jjP F.PA Staff Directory £) Download PACER Button 




^ EPA PACF.R Service Center 




For information or comments, please contact the EPA Program Manawr 




The PACER Service Center hours are 8:00am to 5:00pm Monday - Friday CST. 


Please read our Privacy and Security Notice 




i3" Document Done & ^ 


a® .-£ 



and anyone with a PC can use it. The 
system is available days, nights, and 
weekends. The case information it 
provides is comprehensive. Updates 
to active and recently closed cases 
can be confirmed in seconds. And 
from now until October 1, while 
PACER on the Internet is in its 
"shake-out" stage, access is free. 



Judges 's Updated Codes of Conduct Volume Now Available 



It is in every judge's chambers 
and every clerk's office in every 
federal courthouse. Next to the 
federal civil and criminal codes, it's 
probably the most frequently 
consulted book in a judge's cham- 
bers. It's Volume II of the Guide to 
Judiciary Policies and Procedures — the 
Codes of Conduct volume. 

The Judicial Conference Com- 
mittee on Codes of Conduct 
recently reissued this ethical 
manual, replacing the old one in its 
entirety. The reissuance provides 
the most up-to-date versions of the 
Codes of Conduct, published 
advisory opinions, and ethics 



regulations. Also included is the 
1999 edition of the Compendium of 
Selected Opinions, which summa- 
rizes unpublished advice of the 
committee. 

"Ethics materials are continually 
updated," according to Judge Carol 
Bagley Amon (E.D. NY), chair of 
the Committee on Codes of Con- 
duct, "and we add new materials to 
this volume every year. We hope 
that by reissuing the entire volume 
judges can be certain they are 
consulting the most current infor- 
mation." Updated volumes will 
have Transmittal 13 in the upper 
right corner of each page. £^ 



However, beginning October 1, a 
user fee of $.07 a page will be 
charged. Charges for registered user 
access over the dial-in PACER 
system remain $.60 per minute. 

With its electronic access to case 
dockets, the PACER System can 
retrieve such information as a listing 
of parties and participants including 
judges, attorneys, and trustees 
involved in a case; case-related 
information such as cause of action, 
nature of suit, and dollar demand; a 
chronology of dates of case events 
entered in the case record; judgments 
or case status; or a listing of new 
cases each day in the bankruptcy 
court. 

Bankruptcy Judge J. Rich Leonard 
(E. D. N.C.), a member of the Elec- 
tronic Public Access Working Group, 
said, "The ease of access to our 
records — particularly when the 
documents themselves are avail- 
able — will fundamentally change the 
way we relate to the bar and public, 
and the way in which we internally 
do our work. In my own court, we 
have had imaged documents avail- 
able on the Internet for the last six 

See PACER on page 8 



The Third Branch m July 1999 



JUDICIAL MILESTONES 



Appointed: William R. Sawyer, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Middle District 
of Alabama, May 24. 

Appointed: Terry L. Wooten, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of South Carolina, 
June 1. 

Appointed: Frank S. Maas, as U.S. 
Magistrate Judge, U.S. District Court 
for the Southern District of New 
York, June 1 . 

Senior Status: Judge Lowell A. 
Reed, Jr., U.S. District Court for the 
Eastern District of Pennsylvania, 
June 21. 

Senior Status: Court of Appeals 
Judge Walter K. Stapleton, U.S. 
Court of Appeals for the Third 
Circuit, June 2. 

Retired: Court of Appeals Judge 
Joseph W. Hatchett, U.S. Court of 
Appeals for the Eleventh Circuit, 

May 14. 

Resignation: Court of Appeals Judge 
Timothy K. Lewis, U.S. Court of Ap- 
peals for the Third Circuit, June 30. 

Resignation: Bankruptcy Judge 
Hugh Robinson, U.S. Bankruptcy 



Court for the Northern District of 
Georgia, June 20. 

Deceased: Magistrate Judge Ralph 
J. Geffen, U.S. District Court for 
the Central District of California, 
May 25. 

Deceased: Magistrate Judge F. 
Steele Langford, U.S. District Court 
for the Northern District of Califor- 
nia, June 4. 

Deceased: Senior Court of Appeals 
Judge J. Edward Lumbard, U.S. 
Court of Appeals for the Second 
Circuit, June 3. 

Deceased: Court of Appeals 
Judge Giles S. Rich, U.S. Court of 
Appeals for the Federal Circuit, 
June 9. 

Deceased: Senior Judge Oliver 
Gasch, U.S. District Court for the 
District of Columbia, July 9. 

Deceased: Senior Judge 
Kenneth K. Hall, U.S. Court of 
Appeals for the Fourth Circuit, 
July 8. 

Deceased: Magistrate Judge Robin 
Dane Pierce, U.S. District Court for 
the Northern District of Indiana, 
July 5. 



PACER continued from page 7 

months. In that period of time, our 
website has had almost 500,000 hits, 
and the once daily phone calls from 
large institutional investors have 
virtually ceased." 

Providing PACER on the web 
wasn't simply a matter of opening up 
a new website. Each court maintains 
its own database with case informa- 



tion. To move to the web, telephone 
lines and routers have to be installed 
and the PACER software must be 
converted to web technology. 

The U.S. Party /Case Index, a 
national locator for U.S. district, 
bankruptcy, and appellate courts, is 
not presently available on the 
Internet, but is expected to be 
added in the not too distant 
future. £-^ 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site address at 

http: / / www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

Contributing: David Chamowitz, AO 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond(g<ao. uscourts.gov. 



JUDICIAL BOXSCORE 




As of July 1, 1999 




Courts of Appeals 
Vacancies 


21 


Nominees 


It 


District Courts 




Vacancies 


4: 


Nominees 


24 


Court of International Trade 




Vacancies 


1 


Nominees 


C 


Courts with 




"Judicial Emergencies" 


23 


For more information on vacancies in 
the federal Judiciary visit our website 
at www.uscourts.gov. 



The Third Branch m July 1999 



Press Days Offer Practical Advice 






*■ 



Increasingly, federal courts are bringing together represen- 
tatives of the Third Branch and the Fourth Estate in an effort 
to have each learn more about the others operations and 
needs. Most recently, the Northern District of California hosted 
a seminar in May, titled, Covering the Federal Courts: 
Practical Advice and Tips for Success. The three hour-long 
seminar for reporters was presented by judges, reporters and 
members of the bar. Among the topics discussed were the 
basics of covering the court, what documents are available 
and where, tracking ongoing cases, and public access to the 
court. 

Bench/bar/press conferences and seminars have been 
occurring for sometime, but court-sponsored programs for the 
press are a relatively new phenomena. While the state courts 
led the way in developing such programs, as early as 1986 
the District of Arizona hosted a "Press Orientation Day." In 
1990 the Federal Courts Study Committee recommended that 
courts should hold "press days" to facilitate communication 
between the courts and the media. 

Last year the District of Massachusetts hosted its highly 
successful Law School for Journalists. The program, which 
was coordinated by the Flaschner Judicial Institute, attracted 
more than 50 members of the media. Plans are underway to 
present a similar program in Boston this fall. 

A hallmark of these events has been the participation of 
judges, court personnel and experienced reporters who share 
their insights and experiences. The sessions have proven to 
be valuable for veteran reporters as well as for reporters who 
cover the courts infrequently. 



INTERVIEW 



Interview continued from page 1 

Q, What is the role of the 
• Executive Committee and 
how does it function? 

A. The Executive Committee 
• has several functions. One of 
its functions is to establish the 
calendars of the Judicial Conference, 
that is, the consent and discussion 
calendars. 

Recommendations that come from 
the various committees are reviewed 
by the Executive Committee in 
advance of the two meetings of the 
Conference each year, and a decision 
is made as to whether a particular 
recommendation seems to be debate 
worthy or is entirely routine. If it 
seems to be a routine matter it is put 
on a consent calendar. If it seems to 



be a matter that might prompt 
discussion, it is put on the discussion 
calendar. This expedites the work of 
the Conference so that at the begin- 
ning of the meeting the Committee 
recommendations on the consent 
calendar are approved, and we then 
move on to the discussion calendar. 
However, any single member of the 
Conference can move an item, within 
a certain time frame before the 
meeting, from the consent calendar 
to the discussion calendar if he or she 
wishes to have it discussed on the 
floor of the Conference. That occurs 
with some frequency, so the estab- 
lishment of the consent and discus- 
sion calendars by the Executive 
Committee, while important, is not 
so powerful as it might seem. 

The tradition of the Conference 
has always been one of conducting 
its business in executive session, 
which, in my opinion, affords the 



best opportunity for full debate of 
the issues. Any member of the 
Conference is free to express his or 
her view without fear of some 
misunderstanding or some report 
that might take a comment out of 
context. 

Secondly, the Executive Commit- 
tee makes suggestions, from time to 
time, to the program committees of 
the Conference concerning develop- 
ing issues that the Executive Com- 
mittee thinks should be considered 
for the purpose of making a recom- 
mendation to the Conference. 

Thirdly, the Executive Committee, 
under its jurisdictional statement, is 
empowered to act for the Conference 
itself between sessions when matters 
arise of an emergency nature and 
there is insufficient time to poll the 
Conference, or if it involves a matter 
as to which Conference policy is 

Continued on page 10 



The Third Branch m July 1999 



10 



Interview continued from page 9 

already established. The Chief 
Justice has been very careful during 
my time on the Executive Committee 
to make it clear that, in the absence 
of an emergency, we are not to act 
for the Conference where Confer- 
ence policy is not clear. 



Q # You've served on Judicial 
• Conference committees 
since 1982, you've been a member 
of the Executive Committee since 
1994, and its chair since 1996 — 
certainly a history of service to the 
Judiciary. Why do you choose to 
serve, in addition to your judicial 
duties? 

A. My committee work, 
• while it requires an invest- 
ment of time, does not involve an 
inordinate investment and it is 
one that I've always been able to 
manage. To me, committee service 
is an opportunity for both a diver- 
sion and a challenge. It's a diversion 
in the sense that it affords a respite 
from which all judges can profit. 



And it's a challenge in the sense that 
the work being considered by the 
Conference committees is very 
important work. Some vital issues 
come before the committees so that 
committee service is an opportunity 
to participate in the decision-making 
process relating to the governance of 
the courts. 

I have never heard any judge who 
has served on a committee express 
any regret at having done so. It has 
been a positive experience for 
everyone who has served, especially 
because it affords the opportunity to 
meet and come to know other judges 
in the system — some of the finest and 
brightest people in the world. The 
judges I have met on Judicial Confer- 
ence committees have been inspiring 
to me, and many have become close 
personal friends. I would have 
missed that opportunity altogether 
had I not been serving on committees 
with them. For me, the experience 
has been the highlight of my work as 
a judge. 



Q 



# The Middle District of 

• Florida is one of the busiest 




As chair of the Executive Committee, judge Hodges described Attorney General Janet Reno as 
"uniformly responsive and helpful. " The Committee meets regularly with the Attorney 
General to discuss matters of mutual interest or concern. 



districts in the nation. What 
perspective did this give you as 
chair of the Executive Committee 
and when considering committee 
recommendations to the Judicial 
Conference? 

A. I'm fortunate in that I 
• come from a busy district, 
and we have a varied docket, both 
civil and criminal. Over the years 
I've seen just about all that one 
could see on the district bench. So 
when I look at the report of one of 
our committees, I'm familiar with 
the subject matter generally and 
know something about the issue. I 
think it has been advantageous in 
that respect. 



Q, The Chief Justice normally 
• presides over a Judicial 
Conference session, but on occa- 
sion, the chair of the Executive 
Committee is tapped to take over 
the duties. What is it like chairing 
the Conference? 

A. It was a little daunting at 
• first, looking forward to 
the prospect of presiding over the 
Conference, but once it happened 
I thoroughly enjoyed the experi- 
ence. The debates of the Confer- 
ence are sometimes intense but 
they're never rancorous, always 
marked by collegiality and mutual 
admiration and respect, so that 
chairing such a meeting is very 
easy and very exciting. It is some- 
thing now that I look forward to, if 
the opportunity affords itself. 



Q 



. As chairman of the 
• Executive Committee you 
also have inherited the duty of 
briefing the press about the 
Conference's actions. What is this 
experience like? And, generally, 
how do you think the press and 
the public view the federal Judi- 
ciary? 



The Third Branch 



lith/ 1999 



A # Talking to the press is a 
• bit of a challenge, because 
you have to walk a line between 
candor and discretion. I try to be 
candid with the press and answer 
their questions as fully and as 
frankly as I can. On the other hand 
I don't feel at liberty to disclose the 
views of individual members of 
the Conference for the reasons 
we've discussed: the session was 
conducted in camera and the mem- 
bers of the Conference have both 
the expectation and the right of 
privacy. 

It hasn't been difficult for the most 
part. The matters decided by the 
Conference are often mundane in so 
far as the press is concerned, except 
for an occasional issue such as 
cameras in the courtroom. I just try 
to explain to the press what action 
was taken by the Conference and 
why it was taken — when I can 
clearly discern that from the overall 
debate. 

On the second part of your 
question, I think the press views 
the federal Judiciary as an institu- 
tion very much as the public 
does, and that is with some consid- 
erable measure of respect. Indeed, 
public respect for the judicial pro- 
cess is no doubt attributable in large 
part to the influence of the press and 
it is vital, in my view, that we 
conduct ourselves in a way that does 
not invite adverse publicity. Of 
course I do not mean that we 
should avoid hard decisions in the 
adjudicatory process; there are times 
when we simply have to take the 
"heat." 



Q # As chair of the Executive 
• Committee, you have had an 
opportunity to interact with Con- 
gress and the Attorney General on 
issues of interest and concern to the 
Judiciary. How would you assess the 
current relationship between the 
judicial branch and the legislative 
and executive branches? 




At the Judicial Conference meeting in September 1996, Judge Wm. Terrell Hodges (third from 
right) posed for a photo with his fellow Executive Committee members (left to right) Judge 
Michael M. Mihm (CD. Ill), Chief Judge Richard S. Arnold (8> h dr.), Chief Judge Glenn L. 
Archer, Jr. (Fed. dr.), Chief Judge Gilbert S. Merritt (6 th dr.), Chief Judge Henry A. Politz 
(5 th dr.), AO Director Leonidas Ralph Mecham, and Judge Clarence A. Brimmer (D. Wyo.). 



A. Our relationship with 
• the Attorney General could 
not have been better during my term 
on the Executive Committee. She has 
been generous with her time in 
agreeing to meet with the Executive 
Committee at least twice a year, 
sometimes more often. We have 
always had an agenda of matters of 
mutual interest or concern. She has 
been uniformly responsive and 
helpful. We have tried to respond in 
like manner with respect to her 
suggestions and requests concerning 
the obvious interests of the Depart- 
ment of Justice in the operation of 
the courts. The relationship has been 
excellent and I hope it continues that 
way in the future. 

Unfortunately our relationship 
with the Congress, at least on the 
surface, is somewhat more conten- 
tious. If you listen to press accounts 
or to some of the congressional 
committee reports, they will contain 
criticism of the Judiciary or indi- 
vidual judges. But in the end, if you 
stop and step back and look at 
exactly what happened in Congress 
in regard to the Judiciary, we have 



done rather well in getting the Judi- 
ciary's point of view across. I attri- 
bute that, by the way, to the excellent 
work of Director Mecham and his 
staff in continuously working with 
Congress in the interests of the 
Judiciary. So I suppose the bottom 
line is that while our relationship 
with the Congress is somewhat testy 
from time to time, in the final 
analysis Congress has managed to 
provide for the Judiciary in a gener- 
ally acceptable manner. 



Q. You've served on the federal 
• bench for close to 30 years. 
Do you have any observations on 
how the Judiciary has changed in 
that time (if it has). Are there any 
changes you would make or any 
problems that need addressing? 

A. I think the greatest change 
• I've seen in the Judiciary in 
the last 30 years is growth — both in 
terms of the number of judges, in- 
cluding magistrate and bankruptcy 
judges, and the entire supporting 

Continued on page 12 



11 



The Third Branch m July 1999 



Interview continued from page VI 
staff of the Judiciary. This growth is 
owing in part, of course, to the 
increased jurisdiction Congress has 
created for us during that same 
time period. Such growth is a 
matter of concern to me and to 
many other judges because contin- 
ued enlargement of the federal 
Judiciary can, in my view, pose a 
threat to our ability to effectively 
carry out our very narrow and 
paramount function, which is, in the 
final analysis, to protect and defend 
the Constitution. If the federal 
Judiciary and its jurisdiction grows 
to the point that as an institution it 
becomes indistinguishable from 
federal administrative agencies or 
the state judiciary as a whole, then 
there is the possibility of erosion of 
the public confidence and respect 
we discussed earlier, and that could 



ultimately pose a threat to the 
ability of the federal courts to 
command willing public obedience 
to its decisions. Most judges, I 
think, would agree with that. Where 
we have disagreement is what to 
do about it. That's a matter of 
ongoing discussion. The Judicial 
Resources Committee recommended 
last year to the Executive Commit- 
tee that a study be made of how 
we might better utilize our resources 
and reduce our requests for addi- 
tional judgeships in the future. 
The Executive Committee, in 
turn, recommended to the Chief 
Justice that a working group be 
created to study that very issue, 
and the Chief Justice was kind 
enough to follow that recommenda- 
tion and appointed a working 
group under the leadership of 
Judge Julia Gibbons, who is also the 






chair of the Judicial \<< 
Committee. 

In terms of the near future, I think 
it is vital that the federal courts and 
the Congress come to grips with the 
necessity that the growth of the fe- 
deral Judiciary be curtailed in some 
way. 



Q. You took senior status as of 
• May, 1999, but I notice you're 
still working as hard as ever. What 
are your plans as a senior judge? 

A. I enjoy my work, as I said, 
• both the committee work as 
well as sitting on the bench, and I'm 
going to continue to do that work as 
long as my health and energy remain 
at present levels. I'm looking forward 
to the future with no changes as far 
as my work is concerned. 



THE THIRD BRANCH 

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With only a few weeks to spare 
before the new fiscal year begins, 
both Houses of Congress passed 
appropriations bills containing FY 
2000 funding for the Judiciary. When 
the Senate and House return from 
August recess, they must come to an 
agreement on a single consolidated 
appropriations bill. It remains to be 
seen if the Judiciary will receive the 
funding it needs to avoid serious 
shortfalls in most programs, espe- 





tth the Judiciary's FY 2000 budgt 
in limbo, the Chief Justice has 
written to congressional leaders i 
an effort to obtain necessary fu 
Or court operations. 

dally Courts of Appeals, District 
Courts, and Other Judicial Services, 
as described on page 2. 

Chief Justice William H. Rehnquist 
has written to congressional leaders 
spelling out in strong terms the im- 
pact of inadequate funding on court 
operations. Referring to the Senate 
bill, the Chief Justice said "Such a cut 
in the Judiciary's budget is both un- 



justified and impractical." Although 
the House bill is more generous than 
the Senate version "it also would have 
a noticeable impact on court opera- 
tions," the Chief Justice said in his 
August 9 letter. 

"As you are aware, the courts do 
not control their workload, but rather 
must respond to filings created in 
large part by Congress' expansion of 
the federal courts' jurisdiction," the 
Chief Justice said. "I therefore urge 

you to provide necessary 
funding for the Judiciary 
for FY 2000." (A copy of 
the letter is available at 
www.uscourts.gov.) 

The Senate passed S. 
1217, the Commerce, 
Justice, and State, the 
Judiciary, and Related 
Agencies Appropria- 
tions Act of 1999 late last 
month. As anticipated, 
the bill contained such tight funding 
for the overall Judiciary in fiscal year 
2000— at $4.1 billion, just 1.9 percent 
over FY 99 obligations — that a serious 
shortfall is expected. The Judiciary 
had requested nearly $4.4 billion in 
total obligations to meet current 
service levels. A $206 million shortfall 
in the Salaries and Expenses account 
See Appropriations on page 2 



IHininr FY 2000 Courthouse Funding in Doubt 

IIVUIUL New Software Streamlines Jury Processes 

Senate Honors Judge Frank M. Johnson 



Newsletter 

of the 

Federal 

Courts 



Vol. 31 
Number 8 
August 1999 




Legislative Load Will 
Greet Congress on 
Return From Recess 

Although the projected 
October adjournment for the 
first session of the 106 th Congress 
may seem far off, the clock is 
ticking. There is a lot to be done 
in this Congress, with many 
bills pending, and there's rela- 
tively little time left in which to 
do it. The House returns Septem- 
ber 7 th from recess, the Senate 
returns September 8 th , and 
Congress is due to end its first 
session October 29 — although 
in past years that date has 
been extended well into Novem- 
ber. Speaker of the House 
J. Dennis Hastert (R-IL) was 
so concerned that work on the 
appropriations bills was behind 
schedule, he considered extend- 
ing the session into the August 
recess, a time that members of 
Congress customarily dedicate 
to family and constituents. While 
pressure exists to complete 
appropriations bills with their 
fiscal year deadlines, other 
legislation easily may carry over 
into the second session of the 
106 th Congress starting January 
2000. 

The following are some of 

See Congress on page 3 



Appropriations continued from page 1 

could result in the furlough of court 
employees and leaving almost all 
vacancies unfilled. Funds for panel 
attorneys likely would run out in 
June 2000, and $10 million in security 
requirements would be delayed until 
future years. 

The House appropriations bill, 
H.R. 2670, gave the Judiciary $100 
million above the Senate level, for a 
4.4 percent increase in obligations 
from FY 99 to FY 2000. This was 
unexpected, since before consider- 
ation by the full House of the bill, 
the House budget 
was thought to be 
even smaller than 
the Senate's. Fortu- 
nately, Republican 
leaders agreed to 
fund the 2000 
Census contained in 
the appropriations 
bill as an "emer- 
gency," meaning 
that it is outside the 
committee's budget 
allocation. This left 
slightly more funds 
for other agencies in 
the bill. 



Even at the slightly higher fund- 
ing level in the House, the Judiciary 
still expects a shortfall, but with less 
negative impact on the courts. In the 
Salaries and Expenses category the 
shortfall is not as severe as in the 
Senate bill, and furloughs of Judiciary 
employees would not be necessary. 
A freeze on filling most vacant posi- 
tions, however, would still be likely. 
Funds for panel attorneys would be 
adequate for the coming fiscal year, 
but court security requirements 
would need to be postponed. 



The Judiciary fared well in com- 
parison with most Executive Branch 
agencies, whose appropriations v 
with the exception of a few law 
enforcement agencies and embassy 
security, frozen at or reduced below 
FY 99 levels. Judge John G. Heyburn 
II (D. Ky), chair of the Judicial 
Conference Budget Committee, 
Administrative Office Director 
Leonidas Ralph Mecham, and AO 
staff will be working in the coming 
weeks to obtain higher funding levels 
for the Judiciary. #^ 



FY 2000 Commerce, Justice, Stale, and the Judiciary Appropriations Bills 

(Total Obligations in Thousands of Dollars) 

Courts Of Appeals, FY 1999 FY 2000 FY 2000 FY 2000 
District Courts „ , _ , _ _ _ 
& Other Judicial Scmnccs Enacted Requested Senate Passed House Passed 


Salaries & Expenses 


$3,196,781 


$3,451,114 


$3,245,448 


$3,322,868 




| Defender Services 


371,542 


419,424 


372,619 


406,526 




Fees of Jurors 


63,400 


63,400 


63,400 


65,882 




Court Security 


184,555 


205,998 


196,026 


190,029 


Subtotal 

Other Programs 


3,816,278 

195,516 


4,139,936 

227,135 


3,877,493 
209,532 


3,985,305 
201,308 


Total Judiciary 


4,011,794 


4,367,071 


4,087,025 


4,186,613 





Courthouse Funding Remains in Doubt for FY 2000 



The Fiscal Year 2000 Treasury, 
Postal Service, and General Govern- 
ment appropriations bill, the usual 
vehicle for courthouse construction 
funding, contains no such funds. 
Both the House and the Senate 
reports indicate that budget con- 
straints are the main reason that 
courthouses are not funded. How- 
ever, the Senate report also mentions 
the not-yet-completed review of the 
Judiciary's space and facilities pro- 
gram, and what it refers to as devi- 
ations from the U.S. Courts Design 
Guide for courthouses. In addition 
the House appropriations committee 
reduced the total amount available 



for GSA repair and alteration by $100 
million and removed the earmarks 
for specific repair and alteration 
projects, including several projects 
for the courts. Crucial language 
extending the availability of the FY 
97 appropriation for courthouse 
construction was included in both 
the House and Senate bills. 

Last month, in the Judiciary's 
continuing effort to secure funding, 
Administrative Office Director 
Leonidas Ralph Mecham wrote to 
Senator Ben Nighthorse Campbell 
(R-CO), chair of the Senate Commit- 
tee on Appropriations Subcommittee 
on Treasury and General Govern- 



ment, and to Representative Jim 
Kolbe (R-AZ), chair of the House 
Appropriations Subcommittee on 
Treasury, Postal Service and General 
Government. Mecham noted that the 
review of the space and facilities pro- 
gram was unlikely to conclude new 
construction was unnecessary, but 
rather focus on improvements to the 
program. He also pointed out that 
some deviations from the guide were 
actually decreases from the standards, 
not upgrades, and others were justi- 
fied and approved by the circuits. 
The Judiciary also asked that the con- 
ferees on the appropriations bill re- 
store the higher Senate level of fund- 
ing for the GSA repair and alteration 
account and the language specifying 
the projects for the courts. 



The Third Hram h 






Congress continued from page 1 

the bills and issues the Judiciary is 
tracking in the 106 th Congress. 



Y2K 

H.R. 775, the Year 2000 Readiness 
and Responsibility Act, passed 
both the House and the Senate in 
July and was signed into law by 
the President as P.L. 106-37. The 
act is intended to address the 
potential flood of state and federal 
court litigation related to year 
2000 issues, but it does so in part 
by expanding federal court juris- 
diction over Y2K class actions. 
The Judicial Conference had op- 
posed the class action provisions 
because, among other things, they 
were inconsistent with the prin- 
ciple that the federal courts should 
be preserved as tribunals of 
limited jurisdiction. The legislation 
was ultimately amended to prec- 
lude federal jurisdiction under 
certain circumstances where the 
class does not seek an award of 
punitive damages and the amount in 
controversy is less than the aggre- 
gated sum of $10 million, or there 
are fewer than 100 plaintiffs. A 
district court also may appoint a 
special master or a magistrate judge 
to hear a Y2K matter and to make 
findings of fact and conclusions of 
law. 



H.R. 1752, the Federal Courts 

Improvement Bill 

The House Judiciary Committee 
marked up H.R. 1752, the Federal 
Courts Improvement Act, before the 
August recess and ordered the bill 
reported to the full House. A House 
vote on the legislation won't occur 
until September. The House Judi- 
ciary Subcommittee on Courts and 
Intellectual Property held hearings 
in June on H.R. 1752 at which a 
Judicial Conference representative 
testified. 



Several provisions were dropped 
in committee from H.R. 1752 as 
introduced. These include provisions 
eliminating in-state plaintiff diver- 
sity jurisdiction, authority for 
bankruptcy administrators in 
Alabama and North Carolina to 
appoint trustees, examiners and 
committee of creditors; parties' 
consent to a bankruptcy judge's 
findings and conclusions of law; and 
modifications to the "Rule of 80" to 
permit a judge with 20 years in 
service who has reached age 60 to 
take senior status. 

The bill that goes to the House 
floor also contains two new amend- 
ments. The first amendment, offered 
by Representative Steve Chabot (R- 
OH), which allows cameras in 
federal courtrooms, was altered by 
the addition of two limiting amend- 
ments offered by Representative 
Melvin L. Watt (D-NC). One amend- 
ment grants to the Judicial Confer- 
ence authority to establish guidelines 
to which individual judges may refer 
in making decisions regarding 
cameras in their courts. The amend- 
ment also requires all named parties 
to a suit to give consent before 
cameras are permitted in a court- 
room. 

The second amendment offered 
by Representatives James 
Sensenbrenner (R-WI) and Howard 
L. Berman (D-CA) dropped the 
provision from the bill that would 
allow a transferee judge in a 
multidistrict litigation case to retain 
the case for trial or transfer it to 
another judicial district for trial. That 
provision is proceeding in a separate 
bill, H.R. 2112. 

H.R. 2112, Multidistrict, Multiparty, Multiiorum 
Jurisdiction Act of 1999 

Judge John F. Nangle, chair of the 
Judicial Panel on Multidistrict 
Litigation, testified in favor of the bill 
at a House hearing this year. The full 
House Judiciary Committee has 
reported favorably H.R. 2112. The 



first part of the bill essentially 
overturns the Supreme Court 
decision in Lexecon Inc. v. Milberg 
Weiss. The bill would allow trans- 
feree judges in multidistrict litigation 
cases to transfer cases referred to 
them for pretrial proceedings to their 
own or another district for trial. The 
bill's second part would streamline 
multiple litigation in federal and 
state courts arising from single event 
catastrophes, such as airline acci- 
dents, hotel fires, train wrecks, and 
other disasters. It would make 
minimal diversity of citizenship 
jurisdiction available to parties in 
litigation arising out of a single 
accident in which at least 25 people 
are killed or suffer injuries resulting 
in damages exceeding $75,000 per 
person. 

H.R. 1875, Interstate Class Action 

Jurisdiction Act ot 1999 

S. 353, Class Action Fairness Act ot 1999 

S. 353 and H.R. 1875 would grant 
district courts original jurisdiction 
over any civil action having minimal 
diversity — where at least one plain- 
tiff and one defendant are citizens of 
different states or nations. S. 353 
specifically requires a minimum 
amount in controversy of more than 
$75,000, while H.R. 1875 would bar 
federal jurisdiction if the total of all 
aggregated claims does not exceed 
$1 million. Both bills would provide 
for certain instances in which the 
court must abstain from exercising 
jurisdiction or jurisdiction is barred. 
The bills also would permit removal 
of class actions to federal court by 
any defendant without consent of all 
defendants, or by any plaintiff class 
member who is not a named or 
representative class member, with- 
out the consent of all members of 
such class. 

The Executive Committee of the 
Judicial Conference voted to express 
its opposition to the class action 
provisions in H.R. 1875 and S. 353, in 
See Congress on page 4 



The Third Branch m August 1999 



Congress continued from page 3 

their present form. In a letter to 
Representative Henry J. Hyde, chair 
of the House Judiciary Committee, 
the Executive Committee noted "its 
serious concern about the practical 
effect these bills would have on the 
caseload of the federal courts by 
shifting a significant number of class 
actions from the state to the federal 
courts. Concern also was expressed 
about the conflict between these 
provisions of the bill and long- 
recognized principles of federalism." 
The committee encouraged further 
study of the issues raised by class 
action and mass tort litigation. 

S. 254 and H.R. 1501, Juvenile Crime 

A conference committee may 
begin considering S. 254 and H.R. 
1501 when Congress returns in 
September. Some political maneu- 
vering is possible, as Democrats put 
pressure on Senator Trent Lott (R- 



MS) either to act on the Senate bill or 
to move another bill with gun 
control measures similar to those 
contained in the juvenile bill. Senator 
Bob Smith (I-NH) has threatened a 
filibuster on upcoming motions 
necessary to move the juvenile crime 
bill. Smith, who opposes the Senate 
version of the juvenile crime bill 
with its gun control provisions, had 
previously put a hold on appoint- 
ment of conferees. The Judicial 
Conference opposes the federaliza- 
tion of crimes traditionally pros- 
ecuted at the state and local levels, 
and has affirmed that this policy is 
particularly applicable to the pros- 
ecution of juveniles. 

Article III Judgeships 

The recommendations by the 
Judicial Conference for additional 
Article III judgeships are contained 
in S. 1145, the Federal Judgeship Act 
of 1999, creating 69 judgeships. 



w 


rw Ninth Circuit 
' r JoCL. Before Congress 


\ s 





Last month Congress heard the views of six federal judges on the final Report of 
the Commission on Structural Alternatives for the Federal Courts of Appeals and 
on S. 253, the Ninth Circuit Reorganization Act. Senator Charles E. Grassley (R- 
IA), chair of the Senate Judiciary Subcommittee on Administrative Oversight and 
the Courts, held a hearing on July 16 at which Chief Judge Procter Hug, Jr. (9 th 
Cir.), and Judges Pamela Ann Rymer (9 m Cir.), Andrew Kleinfeld (9 th Cir.), Diarmuid 
O'Scannlain (9* Cir.), and Charles Wiggins (9 th Cir.) testified. Rymer and Judge 
William D. Browning (D. Ariz.), who also joined the panel of judges at the invitation 
of the subcommittee, were members of the commission. Shown testifying at the 
hearing are, left to right, Hug and Rymer. The House also has held hearings on the 
commission's report and other issues concerning the Ninth Circuit. 



Introduced by Senator Patrick Leahy 
(D-VT), the bill was referred to the 
Senate Judiciary Committee but no 
hearings have been held. The House 
does not have a similar bill. There 
are several bills in the House and 
Senate that create a few additional 
judgeships for specific districts. The 
Senate and House juvenile justice 
bills, S. 254 and H.R. 1501, contain 
three additional judgeships for the 
District of Arizona, four additional 
judgeships for the Middle District of 
Florida, and two additional judge- 
ships for the District of Nevada. Both 
bills have passed their respective 
Houses. 



Bankruptcy Judgeships 

In the spring, the House passed 
H.R. 833, the Bankruptcy Reform Act 
of 1999, that would create 18 new 
temporary bankruptcy judgeships 
and extend temporary bankruptcy 
judgeships in five districts. The 
Senate companion bankruptcy re- 
form bill, S. 625, was approved by 
the full Senate Judiciary Committee, 
and floor action was expected before 
the August recess. That now may 
occur in September. The Judicial 
Conference has recommended the 
creation of 24 additional bankruptcy 
judgeships, including the 18 judge- 
ships that would be authorized by 
H.R. 833. 



U.S. Sentencing Commission 

Although the President an- 
nounced his intention to nominate 
candidates to fill all seven U.S. 
Sentencing Commission vacancies, 
only four nominees have been sub- 
mitted to date. They are Judge Diana 
E. Murphy (8th Cir.) to be chair, and 
Judge Sterling R. Johnson (E.D.N.Y.), 
Judge Ruben Castillo (N.D.I11.), and 
Judge William K. Session III (D.Vt). 
No confirmation hearings have yet 
been scheduled. The Commission 
has not had any commissioners since 
October 1998. 



4 



The Third Brandt m August 1999 



JMS Streamlines Jury Processes in District Courts 



Nearly 359,000 jurors were called 
for jury duty in the district courts last 
year. For many, this was the first 
contact they had with the federal 
judicial system. Now, thanks to the 
new automated Jury Management 
System (JMS), potential jurors can be 
certain courts are making the best 
use of their participation. 

JMS is software that lets courts 
integrate the various aspects of jury 
management, such as printing and 
scanning qualification question- 
naires, printing summonses, and 
reporting on juror use. Although the 
new system does not create the 
master jury wheels, for the first time 
it brings in-house all the other jury 
management tasks that many courts 
had previously contracted out or 
done manually. Labor-saving 
features include the automated 
random selection of jurors and a 
bar coding system for more effi- 
ciently taking juror attendance and 
tracking juror status. It also allows 
courts to produce high-quality 
statistical information and eliminate 
redundant data entry. JMS even 
speeds voir dire, because it can 
produce automatically something as 
simple, but time-consuming, as a 



seating chart. Interfaced with the 
court's financial system, JMS makes 
the calculations necessary to pay 
jurors on time, a function that also 
benefits the courts. Deputy clerks 
who might have spent several days 
per month processing juror pay- 
ments, can reduce the time involved 
to only four to five hours. In the end, 
JMS automates many of the manual 
processes, which leaves court 
personnel available to answer 
questions and help — making the 
juror experience a less confusing, 
less intimidating experience. 

Judge John W. Lungstrum in the 
District of Kansas has used the JMS 
software for both a large nine-week 
trial in which five to six dozen jurors 
were called, and also in small trials. 
He has been favorably impressed 
with the system. "It certainly moves 
the process along more quickly than 
the manual operation, " said 
Lungstrum. "And while I miss the 
custom of drawing a juror's name 
from the wheel, the JMS expedites 
the process, especially for the clerks." 

Bill Holland, supervisor for in- 
court activities in the District Court 
for the District of New Jersey, agrees 
that JMS eUminates some chores. 



The introduction of JMS has meant 
that the District of New Jersey will 
no longer out-source the scanning of 
questionnaires. Although the court is 
still in what Holland calls an "adjust- 
ment phase" with JMS, he says the 
system is user-friendly. "We'll rely 
on it to do a lot of the documentation 
involved in the voir dire process, 
such as judges' randomized lists and 
seating charts, and to produce 
reports on jury composition we 
couldn't do before. It seems like an 
adaptable system, and we hope it 
will help us streamline our jury 
management." 

According to Bob Lowney, chief of 
the Administrative Office District 
Court Administration Division, 
implementation of the new system 
will be completed for all courts by 
December 2001. Currently, 14 district 
courts, including several large 
districts such as the Eastern District 
of New York and the District of New 
Jersey, are using the software. 

The JMS installation also will be 
an opportunity for a review of jury 
practices in the courts, to identify 
courts practicing good jury utiliza- 
tion, and train those that may need 
to improve practices. £-^ 



Party/Case Index Recognized by NACM 



The Judiciary's U.S. Party/ Case 
Index for district, bankruptcy, and 
appellate courts has received an 
honorable mention in the Justice 
Achievement Award program 
established by the National Associa- 
tion for Court Management. The 
award program recognizes courts 
and related organizations for 
meritorious projects and exem- 
plary accomplishments that enhance 
the administration of justice. The 
U.S. Party/ Case Index competed 



against 25 entries. One winner and 
three honorable mentions were 
selected. 

The U.S. Party/Case Index allows 
searches to determine whether or not 
a party is involved in federal litiga- 
tion almost anywhere in the nation. 
National or regional searches are 
possible on party name and social 
security number in the bankruptcy 
index, party name and nature of suit 
in the civil index, and party name in 
the criminal and appellate indices. 



The search will provide a list of case 
numbers, filing locations, and filing 
dates for those cases matching the 
search criteria. The U.S. Party/ Case 
Index is accessed presently by dial- 
up connection, and soon will be 
available on the Internet. 

To be considered for a Justice 
Achievement Award, applicants 
must, among other criteria, demon- 
strate that the project was a more 
efficient and more effective way of 
solving the identified problem, and 
how the program meets identified 
needs or improves the delivery of 
services. £x. 



The Third Branch m August 1999 



An Overwhelming Caseload Tests Florida Court 



t 



By August 1997, the Tampa and 
Fort Myers divisions of the Middle 
District of Florida faced what seemed 
to be an insurmountable caseload. 
Approximately 3,000 civil cases were 
pending, and the backlog was 
projected to hit 4,400 by summer 
1998. The Middle District of Florida 
ranks near the top in the country for 
weighted caseload, and there were 
many complex cases in the mix that 
would take time to settle or go to 
trial. Meanwhile the district court 
anticipated a shortage of judges, with 
two of the 11 judges eligible for 
senior status in 1999. Visiting judges 
were helping, but couldn't make the 
time commitment needed to clear the 
docket. The Judicial Conference had 
recommended five new judgeships 
for the Middle District of Florida, but 
Congress has 
authorized no 
new judgeships 
since 1990. The 
future only 
promised more 
cases and fewer 
resources on 
the bench. 

The board of 
judges, through 
Chief Judge 
Elizabeth A. 
Kovachevich, 
knew action was needed and began 
by targeting the summer months of 
1998 as the best time to schedule an 
all-out attack on the pending 
caseload. The local bar was notified 
that beginning June 1, 1998, the 
Middle District of Florida would be 
on an Accelerated Trial Calendar 
(ATC). 

"Necessity drove the ATC," said 
Kovachevich. "We were looking at a 
pending caseload of nearly 3,000 
cases that would only worsen if 
we did nothing. Our goal was to 
reduce the overall number of civil 
cases in the Tampa and Fort 



Myers divisions, and to target the 
oldest pending civil cases for dispo- 
sition." 

The nine-month period between 
September 1997 and the beginning 
of the trial phase on June 1, 1998, 
was one of intense preparation. 
Approximately 850 cases were 
designated to the ATC. The district's 
12 magistrate judges handled 
dispositive motions and related 
pretrial matters. Nearly 250 cases on 
the ATC contained summary judg- 
ment motions that had to be decided 
to ready the cases for trial. The 
district's four senior judges, with the 
voluntary services of senior and 
active judges from the Northern and 
Southern Districts of Florida, were 
enlisted to handle the criminal 
dockets during the planned trial 



"As successful as 






the ATC was, it also 






highlighted our inabil- 


&A, 




ity to maintain the 


w 




pace necessary to 


M 




handle the high 


ft 




caseload in the Middle 


m 




District of Florida. " 


II 




Chief Judge 


'&pn 




Elizabeth A. Kovachevich 





months of June, July, and August. 
This cleared the way for the six 
district judges in Orlando and 
Jacksonville to relocate temporarily 
to Tampa to handle the master trial 
docket. A master trial calendar was 
announced. 

On the night before the ATC 
began, the Tampa Bay Federal Bar 
Association hosted a reception for 
local bar members and all the 
district's federal judges. Any remain- 
ing doubts attorneys may have 
entertained concerning the court's 
intent or ability to begin trials the 
next day were erased. "By June 1," 



said Kovachevich, " we had 11 
judges in 11 courtrooms, all starting 
cases, all selecting juries. It was a 
distinct advantage having courtroom 
space." 

The courtrooms were available 
because the new Sam M. Gibbons 
Courthouse was partially open that 
summer in the Middle District of 
Florida and available to house the 
Orlando and Jacksonville judges, 
while the Tampa judges remained in 
the old courthouse one block away. 
The new facilities needed furniture, 
telephones, office equipment, even a 
sound system, and court staff found 
themselves giving audio and security 
systems orientations the night before 
the trials were to begin. 

In all, 75 of the cases designated 
for the ATC resulted in trials. 
Mediation was used as much as 
possible, and many cases settled. 
For example, the court had estimated 
that a trial of 20 tobacco cases would 
take up to four weeks — but there 
were delays getting even the first 
case to trial. With the advent of the 
ATC, all those cases settled short of 
trial. "The court was committed to 
the ATC's firm trial dates," 
Kovachevich explained. "To the 
extent that the Bar perceives a trial 
date to be realistic, earlier settle- 
ments tend to occur." 

The civil case clearance rate, or 
ratio of terminations to filings, 
increased to nearly 105 percent 
during the ATC period, the highest 
clearance rate experienced during 
the preceding four-year period. 
While other factors were involved, 
the ATC contributed to reducing the 
pending civil case backlog during 
the fiscal year 1998 by about 300 
cases. Furthermore, the concentra- 
tion of resources on the Tampa and 
Fort Myers workload did not appear 
to have a negative effect on the 
productivity in the district's other 
divisions. 

"As successful as the ATC was," 
said Kovachevich, "it also high- 
See ATC on next page 



The Third Branch m August 1999 





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AO Staff Measure the 
Needs of the Courts 



How many people does it take to 
run the federal Judiciary? What's the 
formula for a properly staffed court? 
The Judiciary has told Congress that 
courts are staffed well below the 
recommended staffing levels. What 
does that mean? In the Administra- 
tive Office, staffing requirements and 
analysis are handled by a team of 
specialists led by Beverly Bone. This 
group's specialty is work measure- 
ment, and its job is to answer these 
and related questions. The group's 
members develop the formulas that 
determine the number of people a 
court unit needs to process the 
workload. 

Work measurement, like time 
studies or stop watch studies, has 
been used since the industrial 
revolution when managers wanted 
to know how long a task should take, 
and how many workers it took to do 
it. The Judiciary adopted the meth- 
odology slightly more than 20 years 
ago. "We prefer a statistical method 
of work measurement known as 
operational audit," Bone explains, 
"because it has proved to be the most 




accurate for the Judiciary." Bone and 
her AO team, with members of court 
working groups, first develop a work 
center description, which is a detailed 
list of all the tasks performed in an 
office. "Then using the description, 
we interview the people actually 
doing the work," said Bone. "We ask 
how long it takes them to complete a 
task, and how often they perform the 
task. People's estimates of their own 
work is surprisingly accurate." 



ATC continued from previous page 

lighted our inability to maintain the 
pace necessary to handle the high 
caseload in the Middle District of 
Florida. The ATC required in- 
creased resources, in terms of 
judges, staff, and finances, than 
normally are available to the 
district. As weighted case filings 
continue to remain at levels that are 
more than 55 percent higher than 
the national average, it is apparent 
that the judicial and non-judicial 
resources currently available to us 
will not be able to reduce the 



backlog of civil cases, nor keep the 
backlog from growing larger over 
time." 

For the future, both of Florida's 
Senators and the Representatives 
from the Middle District of Florida 
introduced identical legislation 
supporting four additional district 
judges for the district. This legisla- 
tion was included as provisions in 
the House and Senate Juvenile 
Justice bills, both of which passed 
in their respective houses, and 
await the action of a conference 
committee when Congress returns 
from its August recess. &^ 



From left: Terry 
Kinney and 
Beverly Bone, 
members of the 
AO's work 
measurement 
staff, gather 
data on the 6th 
Circuit in 
Cincinnati, 
Ohio. 



The list and the interview infor- 
mation are consolidated. Databases 
are constructed, potential workload 
factors are analyzed, and historical 
workload is considered. From all this 
data, a staffing formula emerges for 
each court unit. The formulas are 
often complex with many different 
elements. Elements for districts can 
be the relationship between court 
hours and civil filings; the number of 
criminal defendants; and the number 
of judges available to a court. The 
increased staffing needs of courts 
with divisions have to be taken into 
consideration. 

Last summer the Judicial Confer- 
ence Committee on Judicial Re- 
sources approved a recommendation 
to review and revise all staffing 
formulas for court support offices. 
AO work measurement teams have 
headed out to circuit, district, 
bankruptcy, and probation and 
pretrial services offices across the 
country to begin the new project. 
Some of the formulas are at least six 
years old and fail to reflect either 
new legislation or the introduction 
of new technology to the courts. 

See Measure on page 9 



The Tliird Branch m August 1999 



JUDICIAL MILESTONES 



Appointed: William J. Hibbler, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
Illinois, July 2. 

Appointed: Matthew F. Kennelly, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
Illinois, June 22. 

Appointed: G. Mallon Faircloth, as 

U.S. Magistrate Judge, U.S. District 
Court for the Middle District of 
Georgia, July 1. 

Appointed: Karen L. Marty, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of Wyoming, July 1. 

Elevated: Judge William F. Downes, 

to Chief Judge, U.S. District Court for 
the District of Wyoming, succeeding 
Alan B. Johnson, July 12. 

Elevated: Judge David A. Ezra, to 

Chief Judge, U.S. District Court for 
the District of Hawaii, succeeding 
Alan C. Kay, November 30. 

Elevated: Bankruptcy Judge 
William C Hillman, to Chief 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Massachu- 
setts, succeeding Carol J. Kenner, 
December 10. 

Elevated: Bankruptcy Judge 
Terrence L. Michael, to Chief 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Northern District of 
Oklahoma, succeeding Dana L. 
Rasure, June 2. 

Retired: Chief Bankruptcy Judge 
Martin V. B. Bostetter, Jr., U.S. 
Bankruptcy Court for the Eastern 
District of Virginia, June 30. 

Retired: Bankruptcy Judge Henry H. 
Dickinson, U.S. Bankruptcy Court 



for the Western District of Kentucky, 
July 15. 

Retired: Magistrate Judge Lawrence 
A. Marty, U.S. District Court for the 
District of Wyoming, June 30. 

Retired: Magistrate Judge David 
Shepard Perelman, U.S. District 
Court for the Northern District of 
Ohio, July 12. 

Retired: Magistrate Judge John Y. 
Powers, U.S. District Court for the 
Eastern District of Tennessee, July 29. 

Retired: Magistrate Judge John 
Thomas Reid, U.S. District Court for 
the District of Kansas, June 30. 

Retired: Magistrate Judge William 
Leon Slaughter, U.S. District Court 
for the Middle District of Georgia, 
June 30. 

Resigned: Magistrate Judge Patricia 
A. Collins, U. S. District Court for 
the District of Alaska, April 30. 

Deceased: Senior Judge Oliver 
Gasch, U.S. District Court for the 
District of Columbia, July 9. 

Deceased: Senior Court of Appeals 
Judge Kenneth K. Hall, U.S. Court 
of Appeals for the Fourth Circuit, 
July 8. 

Deceased: Senior Judge Herbert F. 
Murray, U.S. District Court for the 
District of Maryland, July 12. 

Deceased: Senior Judge Louis 
Rosenberg, U.S. District Court for 
the Western District of Pennsylvania, 
July 2. 

Deceased: Magistrate Judge 
Robin D. Pierce, U.S. District Court 
for the Northern District of Indiana, 
July 5. 



I HI. 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site address at 

http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
KarenRedmondtaao.uscourts.gov. 



JUDICIAL BOXSCORE 




As of August 1, 1999 




Courts of Appeals 




Vacancies 


23 


Nominees 


14 


District Courts 




Vacancies 


41 


Nominees 


27 


Court of International Trade 




Vacancies 


1 


Nominees 





Courts with 




"Judicial Emergencies" 


21 


For more information on vacancies in 


the federal Judiciary visit our website 


at www.uscourts.gov. 





The Third Branch m August 7999 



Conflicts Screening Software Testing Underway in District, Bankruptcy Courts 



Computer software that will help 
judges screen for conflicts of interests 
currently is being tested in three 
district and three bankruptcy courts. 
Developed from a program origi- 
nated by the District of Maine, the 
software compares recusal lists 
prepared by participating judges to 
the court's docket. The screening is 
designed to be run every evening to 
check new docket entries, while a 
check of the entire docket runs every 
weekend. When a match is identi- 
fied, indicating a potential conflict of 
interest, notification is sent by 
electronic mail to the judge and /or 
the clerk's office. Under the Codes of 
Conduct for U.S. Judges, judges must 
disqualify themselves from matters 
in which they have a financial 
interest. 



Enhancements to the original 
program permit the programs to 
screen for conflicts involving attor- 
neys and law firms. The software 
also can generate a periodic notice to 
participating judges, reminding them 
to update their recusal lists. 

"Although no single mechanism 
can identify all potential conflicts of 
interest," said Judge Carol Bagley 
Amon, chair of the Committee on the 
Codes of Conduct, "the Committee 
believes it is essential for judges to 
use these and other available tools to 
assist in the effort." 

Close to 20 district courts have 
some type of automated conflicts 
checking program similar to or based 
on the District of Maine program. 
The enhanced conflicts screening 
software now being tested is in- 



tended to be used by courts nation- 
wide and adaptable to the differing 
needs and preferences of individual 
courts. 

If the testing phase is successful, 
the new software will be released 
to all courts in September, and 
judges and clerks of court will be 
encouraged to implement it in their 
courts. 

"We feel the conflicts screening 
software can be a useful tool," 
said Administrative Office Director 
Leonidas Ralph Mecham. "AO staff 
developed the final software product 
to assist judges and ease a difficult 
and time-consuming process." In line 
with those efforts, the AO will 
supply national support for the 
software, along with a special 
informational website. &^ 



Measure continued from page 7 

In the districts, study teams 
composed of a court unit representa- 
tive and a member of the AO's work 
measurement staff will visit 25 of 
the 94 courts. Courts are randomly 
sampled to get different geo- 
graphical areas, courts with and 
without divisions, courts with 
different technology, and courts with 
diverse case mixes. All courts of 
appeals and circuit level offices will 
be visited. 

Court representatives are drawn 
from the appellate, district, bank- 
ruptcy, and probation and pretrial 
services work groups that 
developed and revised the work 
center descriptions. "When we 
visit the sites, members of the work 
group come along to conduct the 
interviews," said Bone. "They not 
only created the work description, 
they typically also have done the 
work in their own courts, so 



they know what questions to 
ask." 

As of mid-July, five of the 12 
circuits had been visited, as had 13 of 
25 randomly selected district courts, 
19 of the probation and pretrial 
services offices, and 17 of the bank- 
ruptcy courts. By mid-November, 
Bone hopes to have completed the 
data collection and to begin the 
analysis stage. Advice and comments 
will be sought from court advisory 
groups. 

New staffing formulas will be 
presented to the Judicial Conference 
Committee on Judicial Resources 
and other committees at their June 
2000 meeting and then to the Confer- 
ence in September. The approved 
formulas will be used for staffing 
allocation in fiscal year 2001. "The 
work measurement formulas pro- 
vide statistically reliable tools and a 
sound methodology for quantita- 
tively expressing the staffing needs 
of the courts," said Chief Judge Julia 



Smith Gibbons (W. D. Tenn.), chair 
of the Judicial Resources Committee. 
"Use of the formulas reflects the 
Judiciary's commitment to request- 
ing only those resources required to 
fulfill our core mission of handling 
cases in a just, timely, and efficient 
manner. We want to know as 
precisely as possible what staff is 
necessary for the delivery of appro- 
priate service to litigants, witnesses, 
jurors, attorneys, and the public so 
that we can staff at an adequate, but 
not excessive, level." 

"Currently, the courts are func- 
tioning at what we know to be well 
below their recommended staffing," 
said Bone, "which often means 
putting some projects or work on the 
back burner. Automating some 
processes helps, but it is not the total 
solution. We need better staffing 
measurements to give Congress. 
We need to measure and present 
the data for the best possible formu- 
las." #^ 



The Third Branch m August 1999 



INTERVIEW 



An Interview with Magistrate Judge Joel B. Rosen 



Magistrate Judge Joel B. Rosen is the 
immediate past president of the Federal 
Magistrate Judges Association. He was 
appointed a magistrate judge in the U.S. 
District Court for the District of New 
Jersey in 1987. He is a member of the 
Judicial Conference Committee on 
Federal-State Jurisdiction, as well as a 
member of the Magistrate Judges 
Education Committee of the Federal 
Judicial Center. 

Q # You testified recently before 
• Congress on provisions of 
H.R. 1752, the Federal Courts Im- 
provement Act of 1999. How would 
provisions in this bill affect 
magistrate judges? 

A. There are three components 
• of H.R. 1752 of particular 
interest to magistrate judges. Section 
305 of the bill would give magistrate 
judges limited contempt authority in 
both civil and criminal cases. Cur- 
rently, magistrate judges have no 
way of dealing with misbehavior in 
the courtroom. Additionally, in those 
cases where the parties have con- 
sented to the magistrate judge 
hearing the case, we have no author- 
ity to enforce our orders. These pro- 
visions would vest magistrate judges 
with limited authority to deal with 
these problems, subject to the Federal 
Rules of Civil and Criminal Procedure 
and appropriate appellate review. 

Section 306 of the bill would 
eliminate the consent requirement for 
all petty offenses. Magistrate judges 
already have that authority in regard 
to most petty offenses, including all 
motor vehicle offenses. Other of- 
fenses require a party to consent, 
which may lead to a situation where 
a magistrate judge hears one part of 
the case and an Article III judge 
hears another. For example, a party 
may be charged with drunk driving 



on a military reservation and tres- 
passing. The magistrate judge can 
hear the drunk driving case but 
unless the party consents, an Article 
III judge will have to hear the 
trespassing charge. 

I also testified in support of a 
provision of the legislation concern- 
ing juvenile matters. If the bill 
passes, magistrate judges could hear 
cases involving juveniles with the 
same authority as they hear any 
other criminal matter. I would add 
that all of these provisions have been 
approved by the Judicial Conference 
of the United States. Two years ago, 
the House passed these provisions 
but they did not make their way 
through the Senate. 



Q # What are some of the con- 
• cerns and issues of the Fed- 
eral Magistrate Judges Association? 

A. The Federal Magistrate 
• Judges Association has 
weighed in on various initiatives of 
concern to the entire Judiciary. We 
have been very active working with 
the Federal Judges Association, as 
well as with various committees of 
the Judicial Conference on the issue 
of compensation. We are determined 
to see some long-term solution to this 
serious problem. We think that this is 
an issue of good public policy that 
should be resolved not only for the 
Judiciary but for members of the 
Executive and Legislative Branches 
as well. 

We also have supported legisla- 
tion approved by the Judicial Confer- 
ence concerning case management 
and other matters that we believe 
make the courts more efficient. We 
also express our views on proposed 
changes to the federal rules of civil 
and criminal procedure. We feel that 




Magistrate Judge Joel B. Rosen (D. N.J.) 

magistrate judges, because of the 
type of work we do, can make 
valuable contributions to the rule- 
making process. 



Q. Generally, how are magis- 
• trate judges being utilized in 
district courts nationwide? Are there 
any particularly effective ways 
magistrate judges are utilized in the 
district courts? 

A # One of the best aspects of the 
• magistrate judges system is 
the fact that magistrate judge utiliza- 
tion can be tailored to the needs of a 
particular court and the legal culture 
where that court sits. Magistrate 
judges are used in many different 
ways. In certain parts of the country, 
they are involved in case manage- 
ment, settlement, mediation, and 
dispositive motion practice. In 
certain districts, magistrate judges 
are on the "wheel" for direct assign- 
ment of civil cases to dispose of with 
the consent of the parties. Yet in 
other districts, magistrate judges are 
heavily involved in the disposition of 
social security and prisoner matters. 
All of these ways of utilizing magis- 
trate judges depend on the needs of 
the particular district. What works, 
for example, in New Jersey, may or 



10 



The Third Branch ■ August 1999 



may not work in California. It is good 
to have that flexibility. Magistrate 
judges are highly qualified, experi- 
enced judicial officers who can con- 
tribute to the efficient functioning of 
the district court. From my own ex- 
perience and knowing my colleagues 
around the country, magistrate judges 
are fine, talented men and women 
who rise to the challenge of anything 
that we're asked to do by the court. 
We view ourselves as judicial 
officers working in a way that best 
serves the court and the public. 

The volume of judicial matters 
handled by magistrate judges sug- 
gests that many courts are using this 
resource to help move their dockets. 
According to AO statistics, in 1998 
magistrate judges performed over 
612,000 judicial duties including 
69,500 civil motions, 23,000 settle- 
ment conferences, and 40,000 other 
conferences. On the criminal side, 
magistrate judges performed over 
53,000 felony pretrial duties, includ- 
ing 24,000 motions and almost 2,000 
evidentiary hearings. They disposed 
of over 96,000 misdemeanor matters. 
Additionally, magistrate judges 
terminated over 10,000 civil cases 
with the parties consent. These 
numbers suggest how magistrate 
judges, when fully utilized, can be of 
great assistance to the court and the 
litigants whom we all serve. 



Q. In your experience, is the 
• magistrate judges system 
functioning the way it was intended? 
Do you see the duties of magistrate 
judges evolving or expanding? 

A. Frankly, I believe that the 
• magistrate judges system is 
functioning better than was ex- 
pected. I think it is a part of govern- 
ment that has worked exceptionally 
well in terms of the quality and 
quantity of the work we do. Magis- 
trate judges' duties have evolved 
and changed in large part as a 
function of the changing volume 



and contours of work in the district 
courts. I am confident that magis- 
trate judges will continue to make a 
substantial contribution to the work 
of the federal Judiciary in the years 
to come. 



Q # It seems that an increasing 
• number of magistrate judges 
have become district judges. What 
does this say about the magistrate 
judges system? 

A. Seventy-three magistrate 
• judges have become Article 
III judges since the beginning of the 
current magistrate judges system 30 
years ago, including 47 in the last 10 
years alone. I believe that this speaks 
well not only about the quality and 
backgrounds of the men and women 
who are selected as magistrate 
judges, but also of the selection 
panels who recommend us and the 
courts who appoint us. Magistrate 
judges have a depth of experience 
and training that makes them well- 
suited for Article III positions. We 
also see more and more state judges — 
both trial judges and appellate court 
judges — who have become magistrate 
judges. It's a very interesting phenom- 
ena. The diversity of experience is 
rather remarkable, including attor- 
neys from civil and criminal practice, 
assistant U.S. attorneys, federal 
defenders, and former academics. 



Q # Has magistrate judges' 
• involvement in the policy- 
making or administrative aspects of 
the district courts changed over the 
years? Are they also involved in 
court governance activities at the 
national or circuit levels? 

A # Magistrate judges' involve- 
• ment in policy-making and 
administration has indeed changed 
over the years, particularly I would 
note, with Chief Justice Rehnquist's 
support in placing magistrate judges 



on approximately 14 Judicial Confer- 
ence committees. The Chief Justice 
together with Administrative Office 
Director Leonidas Ralph Mecham 
have been strong supporters of magi- 
strate judge involvement in court gov- 
ernance and administration. Through- 
out the country, magistrate judges 
now serve on many committees at 
the district court level and on circuit 
judicial councils, although at this time 
as non-voting members. A magistrate 
judge is a member of the board of the 
Federal Judicial Center. We are very 
pleased at the increased opportunities 
to participate in court governance. 



Q # It has been nine years since 
• Congress last created new 
Article III judgeships. How has the 
workload of magistrate judges been 
impacted by this? 

A. As a result of the lack of new 
• Article III judgeships, all 
judicial officers have been asked to 
do, and are doing, more. There is no 
question this is an issue that should 
be addressed by Congress soon, 
especially if there is going to be a 
continuing increase in the workload 
of the federal courts. 



Q # How are recalled or retired 
• magistrate judges being 
incorporated into the system? What 
is their contribution? 

A # Based on the workload of a 
• district, a court may request 
that a magistrate judge, who may be 
ready to retire, stay on, on a year-to- 
year basis. We have had several 
instances where magistrate judges, 
who have retired in one district, have 
been recalled to serve in another 
district that needs assistance. It's a 
way of getting experienced judicial 
officers to continue to contribute 
where they are needed. As of now, 
there are 21 recalled magistrate 
judges serving the courts. ^v^ 



11 



The Third Branch u August 1999 



In his 44-year tenure on the federal 
bench, Judge Frank M. Johnson Jr. 
(11 th Cir.) was vilified by politicians, 
called the "most hated man in Ala- 
bama" by the Ku Klux Klan, and 
received so many death threats he 
and his family were under constant 
federal protection from 1961 to 
1975. However, his rulings on 
school desegregation, voting rights, 
access to public facilities and other 
civil rights questions, helped 
change the social and political 
fabric of the country. When he died 
last month, the Senate introduced 
and agreed to Resolution 165, 
which states in part: 

"Whereas in a time when men of 
lesser fortitude would have 
avoided direct confrontation of the 
highly unpopular issues of school 
desegregation and voting rights for 



Judge Frank M. Johnson, Jr. 




1918-1999 



African-Americans, Judge Johnson 

stood firm in upholding th<- ( onstitu 
tion and the law; .... 

"Whereas in part because of 
Judge Johnson's upholding of the 
law, attitudes that were once 
intolerant and extreme have 
dissipated; . . . 

"Whereas the American people 
will always remember Judge Fran! 
M. Johnson, Jr. for exemplifying 
unwavering moral courage in the 
advancement of the wholly Ameri- 
can ideal that 'all men are created 
equal' and deserve 'equal protec- 
tion of the laws' and for upholding 
the law; . . . 

The Senate hereby honors the 
memory of Judge Frank M. Johnson 
Jr. for his exemplary service to his 

country and for his outstanding 

example of moral courage.' 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

PAID 

U.S. COURTS 
PERMIT NO. G-18 



FIRST CLASS 



U.S. Government Printing Office 1998-418-610-80015 




Newsletter 
of the 

Federal 
Courts 



Vol. 31 
Number 9 
September 1999 



Branch 

Judiciary Appeals to Congressional Budget Conferees 




A letter from Judge John G. 
Heyburn (W. D. Ky), chair of the 
Judicial Conference Budget Commit- 
tee, and Administrative Office 
Director Leonidas Ralph Mecham 
was waiting for House and Senate 
conferees on the Judiciary's appro- 
priations bill when they returned 
from their August recess. The letter 

jjwarned members of the serious 
impact both the House and Senate 
versions of the Commerce, Justice, 
State, and the Judiciary appropria- 
tions bill will have on the Judiciary's 
ability to provide services to the 
public. This follows an unpre- 
cedented letter last month from Chief 
Justice William H. Rehnquist to 
congressional leaders. The Chief 
Justice's letter urged Congress to 
provide necessary funding for the 
Judiciary for fiscal year 2000, calling 
the Senate's cut in the Judiciary's 
budget "unjustified and impractical" 
and noting that even the House's 
higher funding level would have a 
"noticeable adverse impact on court 
operations." 

In their letter, Heyburn and 
Mecham asked conferees for a 
funding level higher than what was 
provided in either the House or 

l Senate bill. "Given our current 



Court Support Staffing Levels 

FY1998FY2000 



22,000 



20,000 



18,000 



22,557 



21,954 




Authorized 



Budget 
Request 



19,393 



House Bill 

* 8/5/99 
L J 



18,580 'O 



Senate Bill 
7/22/99 



FY 1998 



FY 1999 

Request House 



FY 2000 

• > 

Senate 



Authorized 
Court support staffing does not include judicial officers or judges' chambers staff. 



services budget request," they wrote, 
"and our increased uncontrollable 
workload, doing otherwise would be 
irresponsible to the courts and to this 
nation." 

In its FY 2000 budget, the Judiciary 
requested a current services budget 
for the courts with staffing at the FY 



INSIDE 



OMB Bypass Bill Introduced 

Virtual Law Library Opens 

Conference Appointments Announced 



Pg- 2 

Pg- 5 

Pg- 7 



99 levels and increases only for 
inflation and other uncontrollable 
requirements. In March, at a 
hearing before the House Appro- 
priations Subcommittee on 
Commerce, Justice, State, the 
Judiciary, and Related Agencies, 
Heyburn warned that the federal 
Judiciary's FY 2000 budget re- 
quest was already "bare bones," 
despite a significant growth in 
workload. No new initiatives, 

See Appeal on page 2 



Appeal continued from page I 

programs, or court support staff 
were requested for FY 2000 — the 
second year the Judiciary will 
have experienced a freeze in staff- 
ing. However, the current House 
and Senate funding levels cut below 
the requested current services 
budget, and will result in reductions 
to funded staffing levels of be- 
tween 8 and 1 1 percent below 
FY 99. The result, conferees were 
told, is that, "Both the House and 
Senate funding levels will likely 
prohibit the filling of virtually all 
vacant court support positions, 
and the lower Senate level will 
also likely result in a 10-day furlough 
for all court employees except 
judges." 

In a floor speech during Senate 
consideration of the bill, Senator 
Orrin G. Hatch (R-UT), chair of the 
Senate Judiciary Committee, said 
that "The Senate bill underfunds 
court support staff and operating 
expenses for the circuit and district 
courts by a net $257 million. . . .The 
support staff is needed to handle 
high levels of criminal cases, bank- 
ruptcy cases, pretrial services, and 
supervised release services. These 
duties are not going away." Hatch 
asked that the Senate work to 
provide the Judiciary with additional 
funding for support staff. 

Considerable support for the 



Judiciary's budgetary plight also 
has been expressed in editorials 
appearing in some of the major 
newspapers across the country, 
including the New York Times, 
Washington Post, Tampa Tribune, 
Dallas Morning News, Arizona Repub- 
lic, and Sacramento Bee. 

The impact of the staffing crunch 
will be felt in significant reductions 
in the level of supervision of over 
100,000 released felons, increased 
backlogs and delays in civil and 
bankruptcy cases, and difficulty 
in complying with the Speedy Trial 



Act, which could result in the 
dismissal of some criminal cases. 
To avert serious curtailment of 
services to the public, the Judiciary- 
has requested the funding levels V 
be increased for Salaries and 
Expenses, Defender Services, and 
Court Security, and the higher 
Senate-level funding for the Court ol 
Appeals for the Federal Circuit, the 
Court of International Trade, and th< 
U.S. Sentencing Commission. 
Additional amounts also are re- 
quested for the AO and the Federal 
Judicial Center. #^ 



FBI Director Warns Judges Of Increased Risk 



Addressing a recent meeting 
of the Federal Judges Association, 
Federal Bureau of Investigation 
Director Louis Freeh, himself a 
former federal judge, warned 
that the nature of threats against 
federal judicial officers and 
courthouses is changing — and 
not for the better. Freeh said 
that many threats no longer 
pinpoint individual judges or 
courthouses because of a specific 
ruling in a case, especially in 
terrorist trials. Instead, the threat 
is "displaced" to involve any 
judicial officer or courthouse as a 
target. This threat is difficult to 
guard against and requires a 



system-wide awareness of security 
needs and planning consistent with 
the wide spectrum of threats 
directed towards courthouses and 
judges. 

In recognition that its facilities 
and judges are high-risk targets, the 
Judiciary is appealing for addition^ 
security funds in the fiscal year 
2000 budget for increases in the 
number of court security officers, 
upgraded security systems and 
equipment for its facilities, and 
enhanced perimeter security. The 
Judiciary's concern is that, without 
the proper funding, the security 
provided to courthouses will not 
keep pace with the risks. 



Bill Would Let Judiciary Send Budget Birectly to Hill 



Senator Thad Cochran (R-MS) 
introduced S. 1564, the Federal 
Courts Budget Protection Act, on 
August 5, 1999, in the Senate. The 
bill, which is attracting bipartisan 
support, would allow the federal 
Judiciary to submit its annual 
budget directly to Congress, by- 
passing the Office of Management 



and Budget (OMB). All the 
Judiciary's budget requests have 
gone through OMB, which in the 
past has not hesitated to alter the 
requests, even though such action is 
prohibited by law. Five times in the 
last 10 years, the executive branch 
has tried to reduce the Judiciary's 
operating budget request. Also, 



while not technically part of the 
Judiciary's budget, the executive 
branch removed General Services 
Administration (GSA) requests for 
courthouse construction funding in 
the President's fiscal year 1998, 199^ 
and 2000 budgets. S. 1564 now goes 
to the Senate Committees on the 

See Bill on next page 



The Third Branch m September 1 999 



ABA Passes Resolutions On Judiciary 



In addition to its support of the 
Federal Courts Budget Protection 
Act, at its semi-annual meeting the 
American Bar Association also 
approved resolutions on new 
federal criminal laws and the 
restructuring of the Ninth Circuit. 

The ABA voted to "oppose 
enactment of legislation that 
mandates restructuring of the 
Ninth Circuit Court of Appeals 
into adjudicative divisions, in 
view of the absence of compelling 
empirical evidence to demonstrate 
adjudicative dysfunction." The ABA 
also opposes the creation of district 
court appellate panels within the 
circuits and the use of two-judge 
panels by any federal appellate 
court. 

The Commission on Structural 
Alternatives for the Federal Courts 
of Appeals recommended in its final 
report to Congress last year that 
the Ninth Circuit not be split, but 



that it should be restructured into 
regionally based adjudicative 
divisions. The commission also 
recommended that Congress autho- 
rize, but not require, each court of 
appeals to decide some cases using 
two-judge panels, and the establish- 
ment of district court appellate 
panels. 

The ABA voted its opposition to 
the trend toward greater federaliza- 
tion of state, local and territorial 
crime. Citing the 1998 Report of the 
Task Force on Federalization of 
Criminal Law, The Federalization of 
Criminal Law, the ABA urged Con- 
gress to take into account the follow- 
ing principles: 

■ Creation of new federal crimes 
is appropriate only where a 
federal interest is implicated 
and the state, local or territorial 
remedy is inadequate to address 
that interest. 



■ Institutional mechanisms, such 
as technical analyses, impact 
statements, and sunset provi- 
sions of fairly short duration 
should be considered to assist in 
Congress' analysis of proposed 
crime legislation and proposed 
new federal law-enforcement 
findings. 

In response to constituent con- 
cerns about public safety, the ABA 
also asked Congress not to create 
new federal crimes that duplicate 
state crimes merely because the 
conduct at issue is deemed impor- 
tant. 

The Judicial Conference has 
expressed concern over the growing 
trend to federalize offenses that have 
traditionally been the responsibility 
of state criminal justice systems. The 
Judicial Conference has maintained 
its "longstanding position that 
federal prosecutions should be 
limited to those offenses that cannot 
or should not be prosecuted in state 
courts." £*. 



Bill continued from previous page 

Budget and Governmental Affairs 
for consideration. 

Senator Orrin G. Hatch (R-UT), 
chair of the Senate Judiciary 
Committee, supports an OMB 
bypass. "The Judicial Branch 
should be required to be respon- 
sible in its budget requests, and 
I believe they are," Hatch told 
the Senate. "But, the Judicial 
Branch's budget should not be 
subject to reductions by the 
Executive Branch to fund the 
political priorities of the President. 
Current law prohibits such re- 
ductions, but the Administration 
does not follow this law. This is 
a systemic problem that I hope 
we can address in the future 
along with the Judiciary's current- 



year budget 
needs." 
The 
Judicial 
Conference, 
through its 
Executive 
Committee, 
has indicated 
its strong 
support for 
S. 1564. The 
American 
Bar Associa- 
tion, at it 

annual meeting last month, also 
endorsed the legislation. The ABA's 
House of Delegates passed a recom- 
mendation urging Congress to 
amend federal law to authorize the 
judicial branch to submit its annual 
budget request, including its request 



"...The Judicial 

Branch's budget 

should not be 

subject to 

reductions by the 

Executive Branch 

to fund the political 

priorities of the 

President. " 

Senator 
Orrin G. Hatch (R-UT) 


• 

*W Wk 



for court facility construction 
projects, directly to Congress, and 
strengthen the statutory prohibition 
against the President altering the 
Judiciary's request when he 
submits the annual, unified federal 
budget request to Congress. ^«v^ 



The Tliird Branch ■ September 1999 



Weeks Prior to August Recess 
See Action On Judgeship Nominations 



In July, the Senate Judiciary 
Committee favorably reported 18 
Article III judgeship nominations for 
Congress' consideration, including 
that of Judge Richard Paez (C. D. 
Calif.) whose nomination to the 
Ninth Circuit Court of Appeals was 
first received by the Senate in 1996 
and who was renominated by 
President Clinton this year. The 
committee's ranking minority 
member Senator Patrick Leahy 
(D-VT) issued a statement saying he 
was "delighted to see us making 
progress with respect to a few of the 
scores of judicial nominees back- 
logged in the committee." In recent 
weeks, committee chair Senator 
Orrin G. Hatch (R-UT) has expressed 
his confidence 
that the work of 
the committee 
would continue 
at an appropriate 
pace throughout 
the year and has 
disputed claims 
of a slowdown in 
approving 
judicial nomina- 
tions. As of 
September 1, 
there were 69 
judicial vacancies 
in the federal 
courts: 24 on the 
courts of appeals, 
44 in the district 
courts, and one 
vacancy on the 
U.S. Court of 
International 
Trade. 

The week 
before Congress 
recessed in 
August, the 
White House sent 
nine judgeship 



Judges Appointed by Ydar 


19971999 




Year Appointed 


1979 


135 


1980 


64 


1981 


41 


1982 


47 


1983 


32 


1984 


43 


1985 


84 


1986 


44 


1987 


43 


1988 


41 


1989 


15 


1990 


55 


1991 


56 


1992 


66 


1993 


28 


1994 


101 


1995 


55 


1996 


20 


1997 


36 


1998 


65 


1999* 


11 


* As of August 17, 1999. 



nominations for congressional 
consideration. That brought the 
number of nominees pending, as of 
September 1, to 49. 

The White House also followed 
through on its previously announced 
intention to nominate candidates to 
the U.S. Sentencing Commission, 
sending Congress the names of 
four Democratic nominees. No 
Republican nominations were 
made, reportedly because of Repub- 
lican disappointment at the length 
of terms, which would be staggered. 
The Commission has been without 
commissioners since the end of the 
105 th Congress last October. 

Congress confirmed 1 1 judicial 
nominees before the August recess, 
and with 
several weeks 
left until ad- 
journment, this 
total may rise. 
Between 1979 
and 1998, 
Congress con- 
firmed an 
average of 53 
nominees per 
session, but 
actual confirma- 
tions per session 
have fluctuated 
from a high of 
135 in 1979, im- 
mediately after 
1978 judgeship 
legislation 
created 152 new 
judgeship 
positions, to a 
low of 15 in 1989, 
when a similarly 
low number 
of judgeship 
nominations 
were sub- 
mitted. 



Rules Review & 
Comment Now on Web 



< 



The latest proposed amend- 
ments to the Federal Rules of 
Bankruptcy Procedure and the 
Federal Rules of Civil Procedure 
are available on the Judiciary's 
website at www.uscourts.gov and 
may be accessed by clicking on For 
Public Review, http:// 
www.uscourts.gov/review.html. 
The full text of the proposed rules 
amendments and explanatory 
committee notes also are posted 
or are available on request from 
the Secretary to the Rules Com- 
mittee. 

The Judicial Conference Advi- 
sory Committees on the Bank- 
ruptcy and Civil Rules had the 
proposals posted on the Judiciary's 
website to encourage greater 
public comment and participation 
in the rulemaking process. As f 
part of a two-year pilot project, 
comments may be sent electroni- 
cally either through the Internet 
or by e-mail. Information on 
submitting comment is at http:// 
www. uscourts . go v / rules2 / 
submit.htm. 

All suggestions and comments 
must be submitted — either 
electronically or in writing — no 
later than February 15, 2000. 
All written communications on 
the rules should be addressed to 
the Secretary of the Committee 
on Rules of Practice and Proce- 
dure, Administrative Office of the 
U.S. Courts, Washington, D.C. 
20544. 

The Judicial Conference 
Committee on Rules of Practice 
and Procedure (standing commit- 
tee) has not approved these 
proposals but submits them for 
public comment. The proposals ( 
have not been presented to the 
Judicial Conference or the 
Supreme Court. £»^ 



The Third Branch m September 1999 



■ 



Judiciary's Own Virtual Law Library Opens For Business 



This library is open 24-7. That's all 
)' day/ every day. And you won't have 
a problem checking out materials. 
It's the new Virtual Law Library 
website, launched this month by the 
Administrative Office. 

The library is a new desktop legal 
research tool available only to the 
federal courts, accessed through 
the Judiciary's J-Net, on its internal 
Data Communications Network. 
It provides, in one location, web 
access to comprehensive legal and 
general research sites such as the 
Indiana, Cornell, and Emory 
University law library sites; to 
federal and state government 
information resources and agencies; 
to business, scientific, and general 
information resources; and to links 
to circuit library websites and on-line 
catalogs. It includes the Judiciary's 
first web browser access to computer 
assisted legal research (CALR) 
) services (i.e., Westlaw and 
Lexis-Nexis). In addition, many of 
the circuit libraries available through 
the Virtual Law Library have 
compiled their own web links to 
local court rules, state agencies, and 
other sites of interest to their local 
courts. 

In announcing this latest legal 
research tool, AO Director Leonidas 
Ralph Mecham noted the versatility 
of the Virtual Law Library. "A key 
feature of the library is the web 
access to CALR," said Mecham. 
"Judiciary users now will have more 
options for conducting legal re- 
search, at no additional cost to the 
Judiciary." 

The Virtual Law Library was a 
high priority initiative of the Judicial 
Conference Committee on Automa- 
tion and Technology. Committee 
chair Judge Edward Nottingham (D. 
Colo.) saw the potential of a well- 
conceived website. "We envisioned 
the Virtual Law Library, not as a 
mega-site of every legal resource, but 



as a focussed, directed site that 
complements current resources," 
Nottingham said. "Access to the 
Virtual Law Library is not intended 
to replace libraries or hard-copy legal 
materials. Instead, web access allows 
users from all over the Judiciary to 
access the most frequently used legal 
resources at the click of a button. 
And the library doors literally never 
close." 

Even for individuals who might 
conduct legal research infrequently, 
the website is user-friendly. On the 
library's home page, users are 
presented with the choice of three 
links: Westlaw and Lexis-Nexis 
Resources; Access to Web Collection; 
or Circuit Library Links. The 
Westlaw and Lexis-Nexis Resource 
link takes users to a long list of 
frequently used resources, from the 



American Law Reports to the West 
Legal Directory. Clicking on the 
Access link yields a list of resources 
such as Legal, Statistical, Medical or 
Science and Technology. Further 
exploration of the Legal Resources 
link, for example, produces Legal 
Resources by Topic, Law Firms, 
Associations and Publishers, and 
Comprehensive Legal Research, 
where a user may access the 
Cyberspace Law Center, the Legal 
Information Institute at Cornell 
University, or the Meta-Index for 
Legal Research, among others. The 
Circuit Library link gives users 
circuit library websites and circuit 
library catalogs. 

Inside the Judiciary, visitors may 
find the Virtual Law Library at 
http://jnet.ao.dcn/publications/ 
virtual_lib/. £«•». 



Be A 2000-2001 Judicial Fellow 



Program Invites 
Applicants 

The Judicial Fellows Commis- 
sion invites applications for the 
2000-2001 Judicial Fellows 
Program. The program, established 
in 1973 and patterned after the 
White House and Congressional 
Fellowships, seeks outstanding 
individuals from a variety of 
disciplinary backgrounds who are 
interested in the administration of 
justice and who show promise of 
making a contribution to the 
Judiciary. 

Up to four Fellows will be 
chosen to spend a calendar year, 
beginning in late August or early 
September 2000, in Washington, 
D.C., at the Supreme Court of the 
United States, the Administrative 



Office of the U.S. Courts, the 
Federal Judicial Center, or the U.S. 
Sentencing Commission. Candi- 
dates must be familiar with the 
federal judicial system, have at least 
one postgraduate degree and two 
or more years of successful profes- 
sional experience. Fellowship 
stipends are based on salaries for 
comparable government work and 
on individual salary histories, but 
will not exceed the GS 15, step 3 
level, presently $83,762. 

Information about the Judicial 
Fellows Program and application 
procedure is available upon request 
from Vanessa M. Yarnall, Adminis- 
trative Director, Judicial Fellows 
Program, Supreme Court of the 
United States, Room 5, Washington, 
D.C. 20543. Telephone: (202) 479- 
3415. The application deadline is 
November 5, 1999. £^ 



The Third Branch m September 1999 



Nature, Not Number, of Fraud Cases Shifts 



The number of fraud cases filed 
annually has ranked consistently 
near the top among the criminal 
offenses in the federal judicial 
system. A total of 8,342 of the 57,023 
criminal cases filed in the district 
courts in 1998 were fraud cases. Of 
the 78,287 criminal defendants 
charged in 1998, 11,130 were defen- 
dants in fraud cases. The only crim- 
inal offenses with a greater number 
of cases are those related to drug 
laws and, in 1998, to immigration. 

Since 1993, the number of fraud 
cases has remained relatively stable, 
although fraud cases filed did 
increase 6 percent in 1998, with the 
nature of filings varying over that 
time. These shifts in the types of 
fraud cases reported are likely a 
reflection of changes in the enforce- 
ment priorities of federal law 
enforcement rather than changes in 
the types of fraud violations being 
committed. 

In an Administrative Office study 
of the number of federal fraud cases 
and defendants filed annually from 
fiscal year 1993 to fiscal year 1997, 
updated with data for 1998, it was 
reported that while the total number 
of fraud cases increased marginally, 
a more significant finding was that 
the nature of the fraud caseload in 
the district courts has been changing. 
Filings alleging false claims and 
statements, social security fraud, 
fraudulent citizenship, and con- 
spiracy to defraud the United States 
constituted a significantly higher 
proportion of the fraud caseload, as 
lending institution and tax fraud 
filings fell. 

Since 1993, filings involving 
postal, interstate wire, and radio 
fraud — which includes telemarket- 
ing fraud — have declined, but these 
types of cases continue to account 
for a sizable proportion of fraud 
filings. Large multi-state undercover 
operations by the Department of 



Justice (DOJ) resulted in prosecu- 
tions by U.S. attorneys of an unusu- 
ally high number of these fraud cases 
with large numbers of defendants. In 
1995 and 1996, several telemarketing 
fraud cases with over 20 defendants 
each were filed. One FBI sting, known 
as Operation Senior Sentinel, which 
concentrated on telemarketers target- 
ing the elderly, resulted in the arrests 
of more than 400 people in 15 states. 

From 1993 to 1996, more defen- 
dants were charged with postal 
fraud than any other type of fraud 
offense, but in 1997 the number of 



creased apprehensions -ilong the 
border will result in the greater use 
of fraudulent documents at the ports 
of entry." 

Fraud cases grew 6 percent in y 
1998, in large part because of filings 
associated with immigration law 
violations in the southwestern 
districts. The combined number of 
fraud cases in the Southern District 
of Texas, the District of Arizona, the 
Southern District of California, and 
the District of New Mexico, in- 
creased 36 percent, although filings 
in the Western District of Texas fell 
18 percent. Lending institution fraud 
cases also rose significantly, revers- 
ing several years of decline. Filings 



Offense 


Number of Defendants Per Fiscal Year 






1993 


1994 


1995 


1996 


1997 


1998 




False Claims 
















And Statements 


1,947 


1,718 


1,733 


1,912 


2,251 


2,166 




Conspiracy to 
















Defraud 


258 


388 


621 


1,290 


1,317 


1,454 




Postal Fraud 


2,214 


1,877 


2,420 


2,195 


1,741 


1,677 


( 


Credit Card 
















Fraud 


978 


1,055 


1,258 


1,174 


1,074 


939 





defendants charged with false claims 
and statements surpassed the num- 
ber of postal fraud defendants for the 
first time. The number of false claims 
defendants grew 10 percent in 1996, 
and 18 percent in 1997, with similar 
annual percentage increases for cases. 

Most new false claims filings 
occur under Section 1028 of Title 18 
of the U.S. Code. This section makes 
illegal the production of false 
identification documents, the trans- 
fer of stolen or illegally produced 
identification documents, or the 
possession of false identification 
documents. The increase in false 
claims cases is related to the recent 
emphasis on preventing and pros- 
ecuting illegal immigration along the 
southwestern border of the U.S. In a 
1997 press release on border control, 
the DOJ acknowledged that "in- 



of false claims and statements cases 
went down 4 percent in 1998. 

The changes in the nature of the 
fraud caseload since 1993 indicate 
how policy decisions by DOJ, as well 
as local U.S. attorneys, can affect 
criminal filings in the district courts. 
The growth or decline in certain 
types of fraud filings has been a 
reflection of where federal law 
enforcement agencies have concen- 
trated resources rather than an 
indicator of the prevalence of specific 
types of fraud. This is evidenced by 
an increase in fraud cases along the 
southwestern border, primarily 
involving false claims or fraudulent 
identification documents, during a 
time of dramatic increases in the d 
number of border patrol agents as 
well as filings of immigration law 
violations in the district courts. £s. 



The Third Branch m September 1999 





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