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The Magazine of The National Judicial College

2015-2016

10

Dark Money and the Future of Judicial Elections

14

Drones: The Latest Threat  to the Right of Privacy

18

Jody Arias and the Cost of Seeking the Death Penalty

20

What Judges Need to Know About the Affordable Care Act

24

Why Can’t We Be Friends? Judges’ Use of Social Media

27 29

5

From the President

6

From the Chief Academic Officer

8

The NJC by the Numbers

32

2016 Course Schedule

34

NTJC News

37

NJC News

44

In Memory

55

NJC Boards

60 Donors

63

From the Archives

Annual Report

2014

The Future of Water Law

begins on page Growing and Learning: Applying Obergefell in State Courts

3 · The Magazine of The National Judicial College · Case in Point 2015-2016

49


What We Do Since 1963, The National Judicial College has been the nation’s leading provider of judicial education. Our mission remains as relevant as ever: education, innovation and advancing justice.

NJC Staff EXECUTIVE OFFICE Hon. Chad Schmucker President Lonnie Shodeen Executive Assistant ACADEMIC DIVISION Joy Lyngar Chief Academic Officer

Learn More About the NJC Visit www.judges.org to learn more about the College and what you can do to help further our mission.

Donate Use the envelope in the middle of this magazine or donate online at www.judges.org/giving

William J. Brunson Director of Special Projects Joseph Sawyer Director of Distance Learning Katheryn Yetter Academic Director Academic Department Muriel M. Bartlett Registrar Rebecca Bluemer Scholarship Coordinator Sarah Dahl Distance Learning Manager Sharon Ehlert Receptionist Irene Hart Program Attorney

Tell your story to other supporters at

Kim Dean Hogrefe, Esq. Secretary

www.judges.org/mystory

Gift Planning Learn how to put the Judicial College in your will or

Christal P. Keegan Program Attorney

stock or real estate, and more.

Crystal Noel Course Administrator Brenda Pardini Assistant Registrar

(800) 25-JUDGE (800-255-8343) www.judges.org/contact info@judges.org BOARD OF TRUSTEES

estate plan,* gift a remainder of your estate, donate

Betty Morgan Course Administrator

THE NATIONAL JUDICIAL COLLEGE Judicial College Building/MS 358 Reno, NV 89557

Share

Michael Jacobs Program Attorney Melody Luetkehans Program Attorney

2015-2016

Matt Sweeney, Esq. Chair Wm. “Bill” T. Robinson, III, Esq. Treasurer and Chair-Elect Peter J. Neeson, Esq. Immediate Past Chair Peter Bennett, Esq. Alan R. Brayton, Esq. Elizabeth J. Cabraser, Esq. Hon. Toni E. Clarke Hon. Larry Craddock Hon. J. Michael Eakin

www.judges.org/planned

Ann Thornton Field, Esq.

*If you have already put the College in your will or estate plan, please let us know. We would

Tony F. Sanchez, III, Esq.

like to thank you for your generous commitment and welcome you to the Legacy Council.

Hon. J. Matthew Martin Walter L. Sutton, Jr., Esq.

National Tribal Judicial Center

Mark G. Tratos, Esq.

Christine Folsom Director

Hon. John M. Vittone (Ret.)

Jennifer Leal Program Manager

Hon. Christopher T. Whitten

Ashlei Neufeld Program Attorney

Sandra S. Yamate, Esq.

Kelly L. Zahara Course Administrator

BOARD OF VISITORS Robert L. Parks, Esq. Chair

OPERATIONS DIVISION

James R. Bartimus, Esq. Vice Chair

Finance Department

Jack Balagia, Esq.

Mary Gough Price Finance Director

Timothy R. Donovan, Esq.

Cathy Hill Deputy Finance Director

A. Clifford Edwards, Esq.

Dodie Schweitzer General Accounting Manager

Stephen F. English, Esq.

Sue DeFuentes Staff Accountant

Hon. Sophia H. Hall

Katheryn Gardiner Accounting Assistant

John L. Holcomb, Esq.

Ernest Etcheverria Purchasing Agent Development/Communications Department Jeanne Hill Director Megan Downs Communications Coordinator Erik Flippo Graphic and Web Designer Bob Gabrielli Grant Writer Ashley Cook Communications Specialist Technology Tony Scronce IT/AV Manager – UNR Services

William H. Hurd, Esq. Case in Point is published once a year by The National Judicial College. Articles and information that appear in Case in Point do not necessarily reflect the official position of The National Judicial College. Publication does not constitute an endorsement of views expressed. Readers are invited to address comments and suggestions to Jeanne Hill at hill@judges.org. We cannot guarantee the publication or return of unsolicited manuscripts. Case in Point articles and content are copyright protected. The National Judicial College encourages republication and dissemination of articles it publishes with permission. To secure permission to reprint Case in Point articles, please contact Jeanne Hill at hill@judges.org.

DESIGN & PRODUCTION Erik Flippo ON THE COVER With apologies to Stanley Kubrick, we adapted the “bone cut” scene The National Judicial College is an Equal Opportunity/

from 2001: A Space Odyssey to highlight the “future of justice” theme

Affirmative Action, ADA organization, and admits

in this year’s Case in Point. While the iconic scene has any number of

participants of any age, race, color, religion, gender, gender

interpretations, we subscribe to the notion that regardless of how

identity, sexual orientation, and national or ethnic origin. © 2015 The National Judicial College. All rights reserved.

knowledgeable humankind becomes, it’s how we use that knowledge that matters most. Illustration by Erik Flippo.

Irvin A. Molasky John H. Mowbray, Esq. J. Edward Neugebauer, Esq. Peter Chase Neumann, Esq. Charles E. Patterson, Esq. James W. Quinn, Esq. Marsha Y. Rabiteau, Esq. Patricia K. Rocha, Esq. Hon. James D. Rogers (Ret.) FACULTY COUNCIL Hon. Don R. Ash Chair Hon. Andre M. Davis Immediate Past Chair Hon. Steve L. Smith Chair-Elect Hon. Jennifer Gee Secretary Hon. Toni T. Boone Hon. Elbridge Coochise (Ret.) Hon. Jane D. Fishman Hon. William G. Kelly Hon. Daniel P. Ryan Hon. V. Lee Sinclair, Jr. (Ret.)


From the President Dear Friends,

F

orty years ago, in May of 1975, I started working in the courts. I was still in law school while I was working as a court officer and law clerk for a general jurisdiction judge. We have certainly seen

major change in the courts in the last 40 years. Let’s look at some of the most significant changes.

Technology played a minor role in most courts 40 years ago unless you consider a Selectric typewriter technology. Even when I became a judge in 1991, the use of technology in the courtroom was quite limited. We had technology in the clerk’s office and in some of the staff offices, but I soon discovered that my courtroom didn’t even have electric outlets for projectors and laptop computers. Today we are so dependent on technology that if the network is down, we can’t even hold a hearing. Another change affecting many courts has been the rise of self-represented litigants. In the general jurisdiction court I worked in Michigan in 1975, it was a novelty and was sometimes met with hostility. Today the increase has been dramatic and courts have had to adapt to handle this trend. It’s still troubling to some judges, and it creates challenges for them. Perhaps the biggest change is the increased expectations of society together with the reluctance to adequately fund our courts. Forty years ago we expected judges to be good lawyers who would be fair and work hard. But today we want much more of our judges. We expect the community to have a drug court. We want judges to understand domestic violence, substance abuse, and mental-health issues. Judges also need to understand case management, alternative dispute resolution, and scientific evidence. To be an excellent judge today you need to understand sentencing, procedural fairness, implicit bias, and how to work with self-represented litigants. Sadly, most judges today need to know something about court security. Yes, it’s a much different job than it was 40 years ago. And it will certainly be a different job in another 40 years, if not sooner. This is why we focused this issue of Case in Point on the Future of Justice. We put the question to our experienced NJC staff and asked them to develop story ideas that highlight evolving issues in justice. Not surprisingly, technology advancements play a key role in articles dealing with the impact of drones on privacy rights and the increasing use of social media. Socioeconomic concerns dominate stories that explore the death penalty, healthcare resources for justice populations, same-sex marriage, and the influence of big money on judicial elections. We also offer a perspective on where water law may be heading. So, I hope you enjoy these and the other stories in the magazine. I hope this issue gives you something to ponder. And I hope it also illustrates that regardless of how technology evolves, it is only as beneficial as those who employ it. I am happy to report that the NJC staff is as dedicated and talented a group of people as I could have hoped to lead. I’m proud to be the president.

Hon. Chad Schmucker 5 · The Magazine of The National Judicial College · Case in Point 2015-2016


From the Chief Academic Officer

I

’m pleased to report that the academic programming at NJC is as strong as it has ever been. With

many states shaking off the doldrums of the Great Recession, we experienced record enrollment in

2014, educating more than 6,000 judges and other court service professionals in person, and another

3,800 over the web.

I dedicate this success to our investors. Whether you have attended a course, participated in a webcast, taught a session, or donated to the College, you have invested in the success of NJC. We have been good stewards of your investment during some financially challenging times for this country. Here are the top 10 ways the academic division has managed to come out on top: 1. Amazing Faculty. Since 1963, the NJC has used a method of “judges teaching judges,” and this model has been adopted by all 50 states. More than 250 individuals make up the NJC’s faculty each year, and the vast majority of them are judges. Ninety percent of our faculty members volunteer to prepare, travel and teach for us. We calculate the value of donated time each year at $1.4 million. What motivates them? The chance to help the next generation of jurists attain excellence? The warm and collegial atmosphere? The opportunity to improve their own skill by teaching? I’m not sure, but I am certain that we would not exist without the wonderful men and women on our faculty. 2. No Talking Heads. Few people are “natural born” teachers. We provide annual faculty development opportunities to help individuals who already have subject matter expertise (usually judges) develop their presentation skills. We know that adults learn differently than children do, so we teach our faculty how to engage all types of adult learners. This increases participant engagement, which helps with retention. At the end of the day, it means our courses have a better chance of leading to better judges, and ultimately, better justice. 3. Smorgasbord of Choices. We offer educational opportunities for all types of judges on a wide array of topics. Need a two-week course for a new judge? We have that. Need a four-day course to study evidence? We have that, too. We continue to offer courses on the basic skills of judging (decision making, logic, writing, conducting a trial), as well as emerging issues (iPad apps for judges, medicationassisted treatment, judges using social media). We offer many skills-building “nuts and bolts” courses, as well as rejuvenating professional development courses for more seasoned judges. 4. Tell Us What You Really Think. We ask you to evaluate our courses at the end of every session. We ask for your input on the content, as well as the method of instruction. For select courses, we send out an outcome evaluation six months later to find out if you have been able to use the skills and abilities you learned. We ask for your ideas for new courses. We use this information faithfully to continuously improve the quality of everything we offer. 5. Eggs in Many Baskets. In financial-speak, we have a diversified portfolio to ensure long-term stability. We have several different academic product types. We are most famous for our “tuition-based” products: courses in Reno, other cities, or on the web where individual judges pay a tuition fee to attend. During the recession, we realized it would be increasingly difficult for judges to attend tuition2015-2016 Case in Point · The Magazine of The National Judicial College · 6


based courses, so we made a strategic effort to obtain federal funding to offer “grant-funded” courses. We were able to continue to offer free or low-cost educational opportunities during the most difficult years. In addition, we offer “custom-built” courses, tailored for a specific state or administrative law agency. 6. Sterling Reputation. Judges can attend our programming with confidence that the NJC has a longstanding reputation for being serious about education. We strictly adhere to the program schedule to honor our students’ time, as well as our faculty’s contributions. We require attendance at all sessions to obtain a Certificate of Completion. We run a tight ship. We don’t want any judge to ever face questions about the true purpose of his or her attendance at an NJC course. 7. Networking Across State Lines. The College offers something you can’t get at an in-state conference: the opportunity to have lunch at a table with 10 judges from 10 different states, sharing stories and ideas. Also, a regular component of NJC courses is small discussion group break-outs, where participants have the opportunity to delve more deeply into material and connect in a more intimate setting. 8. Partnerships. The NJC has ongoing relationships with more than 40 entities, from funding agencies, to allied organizations, to private foundations. Our ability to collaborate is another method of ensuring our ongoing economic success, plus it helps us keep our finger on the pulse of emerging issues that impact the judiciary. 9. Learn Without Leaving Your Chambers. We offer many different types of web-based education, from one-hour live webcasts, to six-hour self-study courses, to six-week models that combine do-at-your-ownpace segments with live sessions (blended learning model). The NJC has been at the forefront of online education for judges, and we have a national reputation for the excellence of these products. 10. On the Road Again. It might surprise you to know that only 20 percent of the people we taught last year came to Reno. Eighty percent of our participants were educated at locations around the country, whether at tuition-based away courses or custom-built courses designed for a specific state. We want to reach as many judges as possible with The NJC Experience, and we know Reno is not an easy destination for many of you. These are the main reasons we came through the recession with flying colors. These are also the reasons that we are well-situated to continue to educate, innovate, and advance justice in the years ahead. Thank you for your investment in the College.

Joy Lyngar 7 · The Magazine of The National Judicial College · Case in Point 2015-2016


The NJC by the Numbers 2014

$609,456 Total amount of scholarships awarded.

184

Number of courses offered — held onsite in Reno, across the nation, around the world, and online.

6,077

Number of in-person judicial officers educated by the NJC, exceeding 6,000 for the first time in College history.

109,589

Number of professional judicial education certificates awarded to qualifying judges since 1963.

52

Number of years The National Judicial College has been the nation’s leading provider of judicial education.

Scholarship funding is critical to the College in order to provide quality educational programming to the nation’s jurists.

On average, 75% of judges cite lack of funding as the reason they would not be able to attend another course at the NJC.

457

Number of individuals who received scholarship assistance.

20%

of those we taught in-person came to Reno.

80% of our participants were educated at locations around the country, whether at tuition-based away courses or custom-built courses designed for a specific state. Number of custom programs created for requesting jurisdictions.

3,800

39

Number of judicial officers who participated in the NJC’s webcasts and online self-study courses.

2015-2016 Case in Point · The Magazine of The National Judicial College · 8


The Future of Justice

9 路 The Magazine of The National Judicial College 路 Case in Point 2015-2016


The Future of Justice

Dark Money and the Future of Judicial Elections Melody Luetkehans, Esq. NJC Program Attorney

In April, the United States Supreme Court held in WilliamsYulee v. Florida Bar that a state may limit a judicial candidate or a judge’s right to personally solicit campaign funds. The 5-4 majority opinion was written by Chief Justice Roberts, who emphasized the need to ensure the public’s perception of the integrity of the judicial system does not wane with the increasing costs of judicial campaigns. In Williams-Yulee, the Court found that a state has a compelling interest in preserving public confidence in the integrity of its judiciary. The power of the court relies solely on the willingness of the populace to adhere to its decisions. The court has no way to persuade the public by either the purse, as in our legislative branch, nor by the sword, as in our executive branch. If the public’s perception is that a judge can be bought through campaign funding, that perception will erode the public’s confidence in the integrity of the court and will undermine our three-branch system of justice. The Court stressed the necessity of preserving public confidence by allowing states to keep the judge out of the campaign money fray. Williams-Yulee addresses the two-edged sword of public misperception when a judge personally asks for funds. The first side is the concern that a judge will favor donors in his or her judicial decisions; the second that donors may fear judicial retaliation if they do not contribute when asked for money by the judge. For the judge or judicial candidate, raising money for elections can be fraught with ethical pitfalls and is open to easy misperception by the public regarding the influence donors have on the judge. Though the Court only addressed the involvement of the judge in personally soliciting campaign funds, the discussion over the efficacy of judicial elections is being heard in every state. Campaigns cost money and judicial elections are becoming more and more expensive. Currently, 39 states provide for some form of judicial

election. These elections occur on both partisan and nonpartisan ballots. Seven states elect their final appellate court (supreme court) justices in partisan elections. Many more states allow partisan ballots for trial court seats.1 But beyond the spending in judicial races by political parties, the largest increase of money raised was from special interest groups.2 The National Judicial College reached out to two judges for their thoughts on the impact of money, especially big money, in judicial elections. Our first viewpoint is from NJC alumni Justice Sue Bell Cobb (AL), who in 2006 was elected chief justice of Alabama and at the time ran the most expensive judicial campaign in U.S. history. She discusses the awkwardness and the pressures of raising campaign money. Our second viewpoint is from Justice James Nelson (MT), who was appointed to his supreme court seat in 1993 and retired in 2012. He discusses his view on “dark money” in judicial elections and its potential to change the way judges decide cases. For information on what money has been spent in your state in judicial elections, visit bit.ly/1CHnkUf.

Sue Bell Cobb, Former Chief Justice of the Alabama Supreme Court Judging, as we all know, is not a vocation for the faint of heart. Pressure comes in many forms: to uphold the highest 1

Partisan Election of Judges, Ballotpedia, http://bit.ly/1ehcyhM, verified as of May 13, 2015.

2

Bannon, Alicia et al. The New Politics of Judicial Elections, 2011-12: How new waves of special interest spending raised the stakes of fair courts, Brennan Center for justice, Oct. 2013. 2015-2016 Case in Point · The Magazine of The National Judicial College · 10


standards of conduct, to solve legal puzzles of tremendous complexity and difficulty, and — above all — to dispense justice. At times, judges even face threats to their physical safety and that of their families. That is pressure of a sort no one enjoys (I know; my home was firebombed by a disgruntled litigant when I was a trial court judge), but as judges we persevere and do our duty to the law and the ideal of justice. From the time of Hammurabi down to Solomon and to the present day, it was ever thus. But a new kind of pressure that many judges face is more troubling than any of these traditional challenges: the pressure to raise vast sums of money to run campaigns in judicial elections that grow ever more expensive. And here too, I speak from unpleasant experience. When I ran for chief justice of my state in 2006, it was the most expensive judicial election in U.S. history. I raised $2.6 million, much of it from lawyers and interests with issues likely to come before the court. I did so for one simple reason: I had to. If I wanted to be competitive in the election, I had to raise the money, and those were the only 11 · The Magazine of The National Judicial College · Case in Point 2015-2016

sources available to me. Contrary to the headline the editors of one national publication applied to an article I wrote for them, I am not “ashamed” of anything I did in that campaign or while on the bench.3 I followed the rules. I never directly solicited a contribution, because I was uncomfortable doing so. And as a judge I dispensed impartial justice to the best of my ability, which is all any of us can do. But I will never forget the pressure this broken system placed on me. First the pressure to assemble the resources my campaign required. Although I never solicited a contribution, I spent hundreds of hours calling friends and lawyers I knew, starting conversations that my campaign committee would later steer toward one about money. Then, after my election, came the pressure to explain to the public that the ridiculous amounts of money my opponent and I had reassembled (he raised far more than I) did not prevent me 3

Bell Cobb, Sue, I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There. On The Bench: Politico online magazine, March/April 2015.

http://politi.co/1eYvQcu


from upholding the highest standards of judicial conduct. The difficulty of this challenge was brought home to me by my first interview following the election, when a reporter asked me not about my status as our state’s first female chief justice or my reform agenda, but rather the unseemly appearance of the fundraising arms race in which I had so recently been engaged. And then finally, after I took office, there was the pressure to administer justice as if the whole ordeal of money and politics had never happened. This may have been the greatest pressure of all. I know that I turned my mind against any form of bias with all my strength, and never consciously let politics intrude on the judicial process. Unconsciously? Well, by definition, I’ll never know for sure about that. I do know that studies by academics are increasingly finding a statistical correlation between campaign spending and judicial decisions as more and more money floods into elections. So what are judges to do until this broken system is fixed? At a minimum, we must scrupulously follow the rules in our states regarding campaigns and fundraising. Each of us should also ask ourselves the tough ethical questions that those rules leave open. Are we comfortable soliciting contributions from lawyers and parties likely to appear before us? If so, what is the cost to the public’s perception of our courts? And we should each do what we can, according to our individual circumstances and personal beliefs, to reduce the role of money and politics in our judicial elections.

Jim Nelson, Former Justice of the Montana Supreme Court Current cosmological theory predicts that some 74% of the known universe is composed of a pervasive dark energy — an invisible substance that may ultimately accelerate the universe into expansive oblivion.4 Not unlike dark energy, dark money spawned by the 2010 Citizens United 5 case has come to dominate the universe of judicial elections and, if left unchecked, may well drive our expectation of a fair, impartial and independent judiciary into extinction. Dark money is a term used to describe “political spending by innocuously named groups whose own donors — the source of the money — [are] allowed to 4

See, Paul Davies, The Goldilocks Enigma: Why is the Universe Just Right for Life? A Mariner Book, Houghton Mifflin Company, 2006, pp 120-126.

5

Citizens United v. Federal Election Com’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed. 753 (2010).

remain hidden.” The source of these funds include 501(c)(3) groups and social welfare organizations — which, though required to report the amount of money they spend on electioneering — either directly or through contributions to super-PACs — are not required to disclose the identities of their donors.6 The Citizens United Court determined that money is a form of political speech protected by the First Amendment and, basically, that dark money organizations and super-PACs could expend unlimited sums of money to influence elections.7 The Court stated, while money contributed directly to a campaign breeds quid pro quo corruption, money expended indirectly for or against a candidate does not carry with it a corruptive effect.8 In his dissent to the Citizens United opinion, Justice Stevens predicted that the floodgates of money released as a result of the Court’s decision, would ultimately compromise the integrity of judicial elections as well.9 The justice’s fears were well-founded. As reported by the Brennan Center for Justice, “[o]n Election Day 2010, for the first time in a generation, three state supreme court justices were swept out of office in a retention election when voters expressed anger over a single controversial decision on same sex marriage.” The voter’s anger was fueled by a special interest campaign which poured nearly a million dollars into Iowa to unseat the justices.10 Matters only worsened. Since 2010, dark money spenders have expended significant amounts of money — funneled through the U.S. Chamber of Commerce, and special interest and partisan groups — to influence judicial elections in North Carolina, Alabama, Arkansas, Tennessee,11 and in Montana.12 The independent news organization, Mother Jones magazine, reports that donations to judicial candidates ballooned from some $83 million in the 1990s to $206 million in the 2000s. States affected included Texas, Alabama, Illinois, Ohio, Pennsylvania, Michigan, Mississippi, Louisiana, West Virginia, North Carolina and Florida.13 Non-Partisan groups that have studied influence that money has and is playing in judicial elections paint a bleak future for a fair, independent and impartial judiciary. A few 6

http://abt.cm/1g8eMRL , last visited April 6, 2010.

7 See, Citizens United, 130 S.Ct. at 900, 913. 8 See, Citizens United, 130 S.Ct. at 908-910. 9 See, Citizens United, 130 S.Ct. at 968.

10 Brennan Center for Justice, The New Politics of Judicial Elections: 2009-2010, http://bit.ly/1Nt4bMi , last visited April 6, 2015. (Hereafter, Brennan Center Report). [NJC NOTE: The three justices were David Baker, Michael Streit, and Chief Justice Marsha Ternus. Justice Ternus taught in the NJC’s course When Justice Fails: Threats to the Independence of the Judiciary, July 27-30, 2015, in Washington, D.C.] 11 See, http://ampr.gs/1IqMUDx , last visited, April 6, 2015.

12 See, James C. Nelson, It’s Time to Make a Change in Selecting Judges in a Post Citizens United World, Montana Lawyer, February 2015, p. 21, 26. 13 See, http://bit.ly/1g8hI0z , last visited April 7, 2015. 2015-2016 Case in Point · The Magazine of The National Judicial College · 12


super-spenders are maintaining a dominant role in judicial elections. Increasingly, state judicial elections are being characterized by costly TV ad campaigns, character attacks, misinformation, attacks on merit selection of judges, and pushes to roll back public financing of judicial races.14 Studies have shown the mega-spending actually influences judicial decision making in civil15 and in criminal cases.16 Thirty-nine states elect their judiciaries. While it might be argued that the answer to the influence of big money

15 See, Joanna Shepherd, Justice at Risk, an Empirical Analysis of Campaign Contributions and Judicial Elections, http://bit.ly/1g8jdfs, last visited April 6, 2015.

is merit selection, there are two problems: first, as noted above, the mega-spenders are attempting to roll back merit selection laws; and, second, the appointers, who typically include legislators, governors, and committees, are often also under the influence of dark money. Indeed, the likely only real solution to this corruption of all three branches of government is a constitutional amendment to require real campaign finance reform and to undo Citizens United.17 Will dark money ultimately annihilate our goldstandard of a fair, independent and impartial judiciary? If dark money keeps up its present exponential expansion, that result is likely. And, in the words of the dark money folks, you can take that to the bank!

16 See, Joanna Shepherd and Michael S. Kang, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, http://skewedjustice.org/, last visited April 6, 2015.

17 See, for example, the work being accomplished on this solution by Free Speech for People.org. http://freespeechforpeople.org/, last visited April 7, 2015.

14 See, Brennan Center Report.

Sue Bell Cobb is a former chief justice of the Alabama Supreme Court. She served from 2007 until her resignation in August 2011. Cobb was the first woman elected as Alabama’s chief justice and had previously served from 1995 to 2007 as a judge on the Alabama Court of Criminal Appeals, the state court for criminal intermediate appeals. Before 1995, Cobb had served as a trial judge in state district court for many years. Jim Nelson is a former justice of the Montana Supreme Court. He was appointed to that post in 1993 by Governor Marc Racicot, and retired from the bench on December 31, 2012. When Justice Nelson took the bench, he was a supporter of judicial elections. In the last years of his tenure, he has changed his opinion. Prior to 1993, he served as Glacier County Attorney as the county’s top prosecutor.

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www.iaca.ws Members include judges, administrators, academics and others from around the world.

13 · The Magazine of The National Judicial College · Case in Point 2015-2016


The Future of Justice

Drones: The Latest Threat to the Right to Privacy

Jeanne M. Hill NJC Director of Development/Communications

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual… the right to be let alone.” That sentiment, which resonates strongly in today’s hyper-interactive America, was actually written in 1890 by Samuel Warren and Louis Brandeis in a Harvard Law Review article entitled The Right to Privacy. The authors sounded the alarm about the use of law enforcement surveillance of the data transmitted through the telegraph and telephone. Fast forward to the 21st century and it’s not hard to conclude what Warren, a prominent Boston attorney of his day, and Brandeis, a future U.S. Supreme Court Justice, would think about the use of drones buzzing overhead equipped with technology to record and monitor your

every move. They could be justified in believing that drone technology had essentially eviscerated the privacy rights guaranteed in the Fourth Amendment. Accurate? Depends upon whom you ask. According to the American Civil Liberties Union, “drones deployed without proper regulation, drones equipped with facial recognition software, infrared technology, and speakers capable of monitoring personal conversations would cause unprecedented invasions of our privacy rights. Interconnected drones could enable mass tracking of vehicles and people in wide areas. Tiny drones could go completely unnoticed while peering into the 2015-2016 Case in Point · The Magazine of The National Judicial College · 14


window of a home or place of worship.” area in which a person has no reasonable expectation In February 2015, the Federal Aviation Administration of privacy. It also institutes testing requirements for a (FAA), which previously passed a law to regulate drones as law enforcement agency’s use of an unmanned aircraft unmanned aircraft in 2012, reported that it had granted system. 1,428 drone licenses to entities in the United States. Of all »» Virginia HB 2125 and SB 1301 require that a law the licenses approved, the majority have been granted to enforcement agency obtain a warrant before local and state law enforcement. using a drone for any purpose, except in limited As of this writing, the U.S. Congress has not passed any circumstances. legislation to address privacy concerns surrounding drone »» West Virginia HB 2515 prohibits hunting with UAS. use by law enforcement. In 2013, Congressman Ted Poe of Texas attempted If history repeats, don’t expect protections against to get H.R. 637: Preserving American Privacy Act passed invasive technologies like drones to become available which would require the attorney general to publish a list of through the courts in the short term. all entities, public and private, that operate drones. The bill First the case must go to trial, instead of ending with a died in Congress. plea bargain. If the defendant is convicted and chooses to Across the United States, many states and municipalities appeal on the grounds that the new are not waiting for federal legislation technology constituted an illegal and are drafting laws to balance search, then the case works its way personal privacy rights against Fourth Amendment to through the appeals circuits, and the U.S. Constitution the need for the public’s security. given the outcomes along the way, According to the National Council can end up in the Supreme Court. The right of the people to be of State Legislatures, Arkansas, secure in their persons, houses, Many previous cases dealing with Michigan, Mississippi, North papers, and effects, against new technologies that resulted in unreasonable searches and Dakota, Tennessee, Utah, Virginia decisions upholding an individual’s seizures, shall not be violated, and West Virginia have passed right to privacy were decided in the and no Warrants shall issue, but legislation. Alaska, Georgia and New upon probable cause, supported U.S. Supreme Court, thereby paving Mexico have adopted resolutions by Oath or affirmation, and the way for Fourth Amendment particularly describing the place related to Unmanned Aircraft protection in lower courts as well. to be searched, and the persons Systems (UAS), also known as drones. But the lag time between the initial or things to be seized. »» Arkansas HB 1349 prohibits the incident and a court resolution was use of UAS to commit voyeurism. substantial. HB 1770 prohibits the use of UAS Kyllo v. United States, 533 U.S. 27 (2001), held that to collect, photograph, or record information about the use of a thermal imaging, or FLIR, device from critical infrastructure without consent. »» Michigan SB 54 prohibits using UAS to interfere with or harass an individual who is hunting. SB 55 prohibits using UAS to take game. »» Mississippi SB 2022 specifies that using a drone to commit “peeping tom” activities is a felony.

»» North Dakota HB 1328 provides limitations for the use of UAS for surveillance.

»» Tennessee HB 153 prohibits using a drone to capture an image over certain open-air events and fireworks displays. It also prohibits the use of UAS over the grounds of a correctional facility.

»» Utah HB 296 allows a law enforcement agency to use an unmanned aircraft system to collect data at a testing site and to locate a lost or missing person in an 15 · The Magazine of The National Judicial College · Case in Point 2015-2016

a public vantage point to monitor the radiation of heat from his home in 1992 was a “search” within the meaning of the Fourth Amendment, and thus required a warrant.

Riley v. California, 573 U.S. ___ 134 S. Ct. 2473 (2014), was a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital


contents of a cell phone during an arrest in 2009 was unconstitutional. United States v. Jones, 565 U.S. ___ (2012), 132 S. Ct. 945, was a United States Supreme Court case which held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

Technological challenges to the Fourth Amendment are not new. Warren and Brandeis were among the first to recognize the friction inherent in new technology and the right to privacy. In addition to police surveillance of telegraph and telephone data, the authors noted in the 1890 Harvard Law Review, “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops.” Wiretapping was widely used by law enforcement and even sanctioned by the Supreme Court in 1928 through Olmstead v. United States. In A Social History of Wiretaps, David H. Prices notes the FBI and state governments wiretapped liberally through World War II and the Cold War periods. Then in 1967’s Katz v. US, the Supreme Court ruled that the Fourth Amendment protections against unreasonable searches extended to telephone conversations. Despite this ruling it is widely believed that wiretapping increased through several presidencies. Then in 1994, Congress passed the Digital Telephone Act, which required all fiber-optic based switches be equipped to facilitate court approved wiretaps. Noted by Price in A Social History of Wiretaps, at the same time the government was wiretapping, the rise of the Internet enabled private companies to begin gathering personal data from computer users. Passage of the Patriot Act after September 11, 2001 allowed government and financial institutions to examine electronic and computer records of anyone suspected of terrorist activities. Over the years as more private data was being circulated through various technologies using satellites and the Internet, the public became comfortable with the convenience of using personal devices for communications and computing.

What issues with technology and the Fourth Amendment are courts grappling with today? How should they be handled? We should understand how the new and relatively inexpensive technologies have changed the game for law enforcement, making long-term and wide-ranging surveillance relatively easy to accomplish even with limited resources. Justice Samuel Alito, concurring with the judgment of the Supreme Court in United States v. Jones, said, “In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case — constant monitoring of the location of a vehicle for four weeks — would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.” To address the issue of the ease of long-term monitoring with new technology, some legal experts have adopted the “mosaic theory” of the Fourth Amendment. The “mosaic theory” states that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. According to Orin S. Kerr, a professor of law at George Washington University Law School, “This idea which was suggested by the concurring opinions in United States v. Jones, is that surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment.” So if newer technologies such as GPS, infrared imagers, digital cameras and audio recorders threaten privacy under the Fourth Amendment, then drones which can carry all

2015-2016 Case in Point · The Magazine of The National Judicial College · 16


these technologies simultaneously, and fly for many hours at very low cost, represent the trifecta of challenges to that privacy. Law Professor Tom Clancy, who teaches The Fourth Amendment: Comprehensive Search and Seizure for Judges at The National Judicial College, sees the challenge that drone technology brings to the Fourth Amendment. “Drone technology can be utilized for surveillance so invasively and for 24/7/365 at minimal cost. Plenty of police departments are experimenting with drones and there is currently no case law to protect us.” Attorney Richard M. Thompson, writing for the Congressional Research Service on Drones in Domestic Surveillance Operations said, “The constitutionality of domestic drone surveillance may depend upon the context in which such surveillance takes place. Whether a targeted individual is at home, in his backyard, in the public square, or near a national border will play a large role in determining whether he is entitled to privacy. Equally important is the sophistication of the technology used by law enforcement and the duration of the

surveillance. Both of these factors will likely inform a reviewing court’s reasoning as to whether the government’s surveillance constitutes an unreasonable search in violation of the Fourth Amendment.” An issue to be examined when discussing the intrusion of technology into one’s privacy is the concept of privacy itself. Many Americans today have a small modicum of privacy. If they have a smart phone with the GPS function enabled to navigate, post to Facebook or LinkedIn or shop on Amazon, they leave electronic footprints that law enforcement can legally trace. These Americans, it turns out, understand the intrusions on their privacy as a side

17 · The Magazine of The National Judicial College · Case in Point 2015-2016

effect of using the Internet. That doesn’t mean they like it. A recent Pew Research Center survey, The Future of Privacy, caught the attention of Judge Herbert B. Dixon and he wrote about it in the spring 2015 Judges’ Journal, published by the American Bar Association. He reported that 55 percent of Pew’s 2,500 respondents said that “privacy as we know it is disappearing. More than half believe their private interests are in jeopardy, that tracking of people’s personal lives for commercial profit will increase and that the government’s access to personal information will increase.” He said, “There is no question that this new notion of privacy will impact Fourth Amendment issues. With new technologies, we can no longer ask what James Madison would say about (it).” Paul Ohm, associate professor and associate dean for academic affairs at the University of Colorado Law School, writes in The Fourth Amendment in a World Without Privacy, 81 Miss. L. J. 1309 (2012): “In a world without privacy, a Fourth Amendment focused on privacy becomes nearly a dead letter. Today’s Fourth Amendment has been built around the reasonable expectation of privacy test, but no expectation of privacy will be deemed reasonable in a world without privacy.” Despite this pessimism about the future of privacy, a Reuters poll conducted in January 2015 on the use of police drones found surprising support. Sixty-eight percent of the 2,405 respondents said they support flying drones to solve crimes, and 62 percent support using them to deter crime. NJC faculty member Hon. V. Lee Sinclair, Jr., said drones versus privacy is a combination of many issues wrapped up into one. “The first is the flight in air space that raises questions. Then we have the visual capability to hone into micro private areas. Add to this the ability to pick up sound. These are complicated issues with many constitutional concepts. Start with Katz. Add in Kyllo and Ciraolo. Then throw in US v. Jones on tracking devices and this will be the subject of Fourth Amendment junkies for some time.” By the time the protections are written on the regulation of drones vis a vis the Fourth Amendment, the next new technology challenging the right to privacy will have already been invented.


The Future of Justice

Jody Arias and the Cost of Seeking the Death Penalty Hon. Kent Cattani and Hon. Paul J. McMurdie

Recently, Arizona was in the national spotlight for the sensational trial of Jodi Arias, who killed her former boyfriend. She was headline news locally, and the topic of national debate for Nancy Grace and other court watchers. Arias’ guilt was never in doubt. The only question in the case was whether she should spend the rest of her life in prison or be executed for her horrific crime. Two juries could not resolve the issue, and she was ultimately sentenced to life without the possibility of release. And the cost for Arizona taxpayers? The Maricopa County Legal Defender has reported expenditures exceeding $3 million to retain counsel on Arias’ behalf for the first trial alone. The overall cost of prosecuting and defending this case will obviously far exceed that amount. Had Arias received the death penalty, the costs would have continued to mount. The death penalty process in Arizona includes state post-conviction and federal habeas corpus proceedings that generally span a period of more than 20 years, and such proceedings would have added hundreds of thousands of dollars in costs for the prosecution and defense, not to mention judicial costs. Death penalty proponents understandably chafe at arguments raised by defense attorneys and death penalty opponents urging the cost of the death penalty as a reason for doing away with capital punishment. The increasing cost of the death penalty arguably reflects added protections and efforts to increase the fairness of the process, and the cost thus does not add any moral dimension to an argument against the death penalty. Nevertheless, the cost of the death penalty should not be ignored. The old adage that the death penalty is cheaper than housing murderers in the department of corrections is simply wrong. The Arizona Department of Corrections reports that the cost of housing a prison inmate is around $24,000 per year. If Arias lives to the age of 70 it will cost the State of Arizona $840,000. The first trial alone cost considerably more than that.

In Arizona, as in most jurisdictions, the decision to seek the death penalty is made by a local prosecutor — the elected county attorney. And the primary cost for the trial is borne by the county. But once a death sentence is imposed, the case shifts to the state attorney general’s office, and most of the costs associated with the approximately 20-year appeals process are borne by the state. The process for determining what type of punishment to seek in a criminal case was put in place when Arizona became a state in 1912 — at a time when the cost of pursuing a death sentence was relatively insignificant and 2015-2016 Case in Point · The Magazine of The National Judicial College · 18


the appeals process lasted for months, rather than years. Given the dramatic increase in the cost of seeking the death penalty, and the extraordinary changes to the death-penalty appeals process that have transpired since statehood, thought should be given to whether the process should be changed, including whether the state should have input into the charging decision and a concomitant responsibility to pay for the entire process. Public support for the death penalty in Arizona and in other parts of the United States will likely continue for the foreseeable future, primarily because there are cases, such as terrorist bombings carried out by people like Osama Bin Laden and Timothy McVeigh, for which a life sentence is viewed to be an inadequate punishment. But such support does not necessarily extend to unbridled discretion to seek the death penalty in other types of cases, particularly where the costs of that decision will be borne by taxpayers to

whom the decision maker does not directly answer. At a minimum, the decision whether to seek the death penalty in

any given case should be made by someone or by a group of people accountable to those who pay for the process. Several years ago, Robert Blecker, a criminal justice professor at New York Law School who supports the use of capital punishment (albeit to a lesser degree than it is currently being pursued in the United States), explained his views as follows: “I always knew Hitler deserved the death penalty. The question for me was, ‘Who else deserves it?’” That question remains pertinent today — perhaps even more so in light of constitutional arguments that the current death penalty process does not adequately narrow the class of individuals subject to the penalty. As to Jody Arias, there are some who believe that her crime evidenced a degree of brutality that warranted the death penalty. Others believe that Arias is not the type of person who posed a threat to anyone other than her victim, and that resources would have been better spent on other, more dangerous criminals. Certainly debates regarding what types of murders and murderers warrant the death penalty, and whether resources are better spent elsewhere, are discussions worth having. Also relevant is the likelihood that a death sentence will be carried out. A recent study from researchers at the University of North Carolina at Chapel Hill reports that the most likely outcome for a capital case once a death sentence has been imposed is that the defendant’s conviction or sentence will be reversed on appeal. Execution is only the third most likely outcome. Of the 8,466 people sentenced to death from 1976 to 2013, 38 percent (3,194) had their sentences or convictions overturned. Thirty-five percent (2,979) remained on death row at the time of the study. Fewer than one in six defendants — 16 percent (1,359) — were executed. The rest died on death row of suicide or natural causes, had their sentences commuted, or were removed from death row for various reasons. Given the current cost of pursuing the death penalty and given the current rate at which the punishment is actually carried out, maintaining the status quo makes little sense. The time has come to rethink the process by which the decision to seek the death penalty is made, including the determination as to how often and in what cases capital punishment should be sought.

Editor’s Note: Since this article was submitted, Nebraska lawmakers voted in May to abolish the death penalty, and the Connecticut Supreme Court ruled the death penalty violated its state constitution’s cruel-and-unusual-punishment provision, making them the 19th and 20th states to ban capital punishment. Oklahomans will vote in this fall’s general election on whether the death penalty should be enshrined in that state’s constitution. The U.S. Supreme Court ruled in June that the use of midazolam for lethal injections does not violate the U.S. Constitution’s ban on cruel and unusual punishment. Judge Kent Cattani was appointed to the Arizona Court of Appeals on February 9, 2013. At the time of his appointment, Judge Cattani was an assistant Arizona attorney general, serving as solicitor general, overseeing civil appeals, criminal appeals, and capital litigation. Judge Paul J. McMurdie was appointed to the bench of the Maricopa County Superior Court in 2005 by Arizona Governor Janet Napolitano. Previously he was a prosecutor for the Arizona Department of Water Resources, the Arizona Attorney General’s Office, and the Maricopa County Attorney. Judge McMurdie has served on the faculty of The National Judicial College since 2007. 19 · The Magazine of The National Judicial College · Case in Point 2015-2016


The Future of Justice

What Judges Need to Know About the Affordable Care Act Maureen McDonnell

The future of justice may be increased access to treatment for criminal defendants. Criminal courts across the country are beginning to tap into the promise that our changing healthcare system holds for individuals with drug addiction and mental health issues. In the recent past, court and jail systems in most states have had very limited capability to establish access to treatment for those with addictions and mental illnesses. Evidence1 suggests, however, that increased communitybased healthcare2 access for justice-involved individuals is linked to decreased recidivism and increased public health and safety. Innovations such as drug courts were developed as a result of this understanding, but they are expensive and difficult to expand system-wide.3 Because most criminal courtrooms see large numbers of high-need substanceabusing offenders, the courts need strategies to reach all offenders, not just those who participate in drug courts. Enter the federal Medicaid expansion — an initiative with the potential to spur a substantial increase in access to community-based healthcare services in participating states. Court systems in these states are now presented with the opportunity to lead a crucial systems change and expand 1

As cited in Peter Coolsen & Maureen McDonnell, Anticipating the Impact of Health Care Reform on the Criminal Justice System, 27 Ct. Manager 32 (Spring 2013), http://bit.ly/1ejCadG : “Critical findings have been distilled by the National Institute on Drug Abuse (NIDA), part of the National Institute of Health; the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services; the Bureau of Justice Assistance (BJA) and the National Institute of Corrections (NIC), which are part of the U.S. Department of Justice. NIDA’s Principles of Drug Abuse Treatment for Criminal Justice Populations distills these findings into key applications for justice agencies, community service providers and health care purchasing agencies” See National Institute on Drug Abuse, Principles of Drug Abuse Treatment for Criminal Justice Populations. (Published Sept. 1, 2006, Revised Aug. 2012.)

2

We use the phrase “community-based healthcare” to refer to the collection of healthcare service providers operating in a city, county or region, and outside the confines of the local criminal justice system. Providers that specialize in mental health and addiction treatment services tend to be best-suited to meet the needs of justice-involved individuals who have recently or will soon be covered by Medicaid.

3

Peter Coolsen & Maureen McDonnell, State Courts and the Promise of the Affordable Care Act in Trends in State Courts, located at http://bit. ly/1PXVhaT (Dec. 2014)

the set of tools that the justice systems use to manage and rehabilitate non-violent offenders. The result will be lowered costs and recidivism reduction for criminal justice systems, as well as improvements in health and family reengagement for those seeking to reintegrate as productive members of society.

The Promise of Expanded Healthcare Resources for Justice Populations The Affordable Care Act (ACA) expands insurance coverage through: 1) the expansion of Medicaid to newly eligible low-income individuals and 2) the creation of healthcare “exchanges” — private insurance markets that facilitate education and choice for individuals looking to purchase health plans. Twenty-nine states have accepted the federal Medicaid subsidy at the time of this writing. In those states, it is estimated that the number of people in the justice system who are eligible for coverage will rise from one in ten, to nine in ten.4 This expanded coverage changes the game for community providers of behavioral healthcare services, laying the foundation for the healthcare system to constructively impact the criminal justice system at a system-wide level.5 Those receiving coverage under Medicaid expansion or through an exchange will be afforded important health benefits, including substance use and mental health treatment. As a result, providers 4

Rodriguez, Pamela. “A Call to Action for Counties: Improve Population Health and Reduce Recidivism by Rebalancing System.” Corrections>Coverage>Care: From Jail Enrollment to Healthcare Conference. Chicago, IL March 17, 2015

5

Coolsen & McDonnell. December, 2014. 2015-2016 Case in Point · The Magazine of The National Judicial College · 20


will have an increasing financial incentive to expand their community-based services and serve the new influx of covered individuals. Expanded coverage also opens up the opportunity for innovations to emerge from partnerships between criminal justice agencies and healthcare providers. One such example is the recently implemented concept of “health homes” that were established specifically to serve individuals in the justice system with chronic and persistent mental illness.6 For the remaining 21 states, the ACA “exchanges” themselves may still have an impact on the justice system; a single adult making more than $11,170/year will be eligible to purchase subsidized insurance, resulting in lower premiums, deductibles, and co-payment costs.7 In these states, a focus on identification and voluntary enrollment of the justice population in the marketplace will yield positive 6 Id. 7 Id. 21 · The Magazine of The National Judicial College · Case in Point 2015-2016

results. Practitioners in these states can also begin making preparations for the future arrival of Medicaid expansion.

Early Successes Cook County (including Chicago), Illinois was granted the opportunity to implement an early prototype version of the Medicaid expansion, and already has taken steps toward healthcare and criminal justice systems integration. The work serves as an example for other jurisdictions to study. Judge Paul Biebel, Jr., presiding judge of the Criminal Division of the Circuit Court of Cook County, partnered with Treatment Alternatives for Safe Communities (TASC) to develop the Justice and Health Initiative (JHI). Together, they organized a steering committee and working groups that included the Cook County Sheriff’s Department, the Cook County Adult Probation Department, the


Before 2014 1

in 10 individuals appearing in court had healthcare coverage

Today 9

in 10 individuals appearing in court are eligible for healthcare coverage due to the Medicaid expansion

Cook County Health and Hospitals System, the Illinois Department of Healthcare and Family Services, and the Illinois Department of Human Services. These agencies have taken major steps to integrate healthcare enrollment processes into the jail and probation systems, and have established Related Courses the Access to Community Treatment The NJC partners with CHJ Court, a “health-careat TASC on a two-day multidisciplinary team-based course reform-ready” court on emerging addiction science model. Cook County’s and systems change through experience will yield the Justice Leaders Systems Change Initiative. There may be lessons8 for other funding available to bring this cities and counties course to your state. If you are seeking to similarly interested, contact Joy Lyngar increase access to at lyngar@judges.org. substance abuse and If you are a judge interested in implementing a systems mental health services change improvement initiative, for justice-involved such as the one described in populations. this article, the NJC offers a four-day course, Leadership for Judges, taking place August 22-25, 2016.

To learn more about addiction and mental health, we recommend Co-Occurring Disorders Advanced, a course offered August 22-25, 2016.

Judges as Leaders of Change

As conveners, courts have the potential to bring these positive changes to scale. Judges are already beginning to influence policy and spur needed partnerships and collaborations. Given the newly available healthcare 8

resources, these new collaborations will bring about impressive results. Judges are embarking on this work by asking the following questions:

»» Is there a group of community stakeholders currently working to build partnerships between healthcare providers and criminal justice practitioners?

»» What would a steering committee responsible for the implementation of this integration of services look like?

»» How can the justice system organize the healthcare enrollment of individuals under criminal supervision? »» How will individuals with serious mental conditions and substance use disorders be screened and linked to community-based providers, caseworkers and other needed services? »» How can justice systems partner with substance use, mental health and medical treatment providers such that the latter organizations will be incentivized to build capacity in targeted communities and meet existing demand for services?

»» How can the benefits of healthcare expansion be applied to diversionary, “no-entry” efforts within the justice system? As jurisdictions across the country begin this work, technical assistance provider organizations such as the Center for Health and Justice (CHJ) at TASC are supporting their efforts as partners, and are building a knowledge base of replicable innovations and best practices related to the expansion of service. Healthcare coverage alone will not cure all ills for criminal justice in the U.S., but the expansion represents an important step toward a system characterized by rehabilitation rather than recidivism.

Harvard and Johns Hopkins Universities are currently studying the impact of these initiatives.

Editor’s Note: In June 2015, the U.S. Supreme Court ruled that federal subsidies offered through the Affordable Care Act were in fact legal. Maureen McDonnell serves as director for business and health care strategy development for TASC, Inc. (Treatment Alternatives for Safe Communities), based in Illinois. 2015-2016 Case in Point · The Magazine of The National Judicial College · 22


In honor of David Letterman’s retirement, we offer the top 10 reasons to join the ABA Judicial Division. However, we came up with more than 10 reasons, so pick the 10 that you like and join. You like that membership can pay for itself through discounts and savings from our ABA Advantage partners. You are a VIP and want access to Judicial Division members-only events, discounts, and freebies. You want to grow professionally through our cutting-edge education programs available at home, online, or abroad. You want to acquire new skills through learning opportunities, professional development, and free or discounted educational programs. You want to become part of a national network of colleagues who are an invaluable source of advice and inspiration. You are a social butterfly and want to network at the Division’s events and meetings. You have ideas on how to improve the judicial administration and need a national platform. You have a book, article, or program idea and want an opportunity to be published or speak. You want to inspire young minds and bring diversity to the bench. You want to collaborate on projects and serve as a leader on a committee or task force. You want a voice on key issues and proposed polices that affect the judiciary. You want to be current with the latest trends and innovations in the justice system through our award-winning publication The Judges’ Journal and e-newsletters JD Record and Highway to Justice. There are many reasons why judges and lawyers join the Judicial Division; however, we all share a common goal to improve the judicial system. Each new member matters and strengthens the judicial voice of the American Bar Association. Visit www.americanbar.org/jd to join or learn more about the ABA Judicial Division. Special rates and group programs are available for judges and government employees. 23 · The Magazine of The National Judicial College · Case in Point 2015-2016


The Future of Justice

Why Can’t We Be Friends? Judges’ Use of Social Media Alisa Sparkia Moore, Esq.

Issues involving communication — in whatever format — are at the heart of many ethical concerns involving the judiciary. The current hot topic is, of course, how and when it is appropriate for judges to participate on electronic social media (ESM) or social networking sites such as Facebook and Twitter, blogs (such as those on WordPress), professional sites (LinkedIn), and photo/video-centric sites like Instagram and YouTube. Law and technology rarely keep pace, and new social media technologies appear on a seemingly daily basis. The wonderful and treacherous aspects of social media are that, using most of them, one may communicate with just one person or with a host of people, depending on how the sites are utilized. However, the user of any social media site must take great care to understand the ethical implications of taking any actions on any site. Using different ESM may raise diverse or overlapping ethical concerns guided by the ethical canons, recognizing that there are various levels or degrees of concern. In 2013, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 462 (Judge’s Use of Electronic Social Networking Media), noting that electronic social media “has become an everyday part of worldwide culture” and “can be beneficial to judges to prevent them from being thought of as isolated or out of touch.” Referencing the ABA Model Code of Judicial Conduct, the Committee aligned judicial responsibilities using such platforms with communications that occur using “the U.S. mail, telephone, email or texting.” The U.S. Courts Committee, in Codes of Conduct Advisory Opinion 112, summarized that “[i]n short, although the format may change, the considerations regarding impropriety, confidentiality, appearance of impropriety and security remain the same” (2014, 112-2). Jennifer Gee, district chief judge, U.S. Department

of Labor, Office of Administrative Law Judges in San Francisco, said “security is my primary concern.” Although she is active on LinkedIn, she explained that “I’ve been to a number of conferences where court security presenters encourage judges not to be active in social media. I only got involved with LinkedIn because I volunteered to be a mentor for my law school, and they wanted all mentors to sign up for LinkedIn. With regard to my activities on LinkedIn — I have not posted or received any posts about cases before me, decisions I’ve made or anything related to my work. If I got anything, I would ignore it.” Advisory Opinion 112 provides a specific list of ethical concerns for judges (and judicial employees) using social media: (1) confidentiality; (2) avoiding impropriety in all conduct; (3) not lending the prestige of the office; (4) not detracting from the dignity of the court or reflecting adversely on the court; (5) not demonstrating special access to the court or favoritism; (6) not commenting on pending matters; (7) remaining within restrictions on fundraising; (8) not engaging in prohibited political activity; and (9) avoiding association with certain social issues that may be litigated or with organizations that frequently litigate (p. 1).

The essence of the issues is consistent: regardless of the technology, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”1 State court interpretations of the ethics canons reflect 1

Model Rules of Prof’l Conduct R. 1.2. 2015-2016 Case in Point · The Magazine of The National Judicial College · 24


the same concerns. Opinions addressing the issue of judicial participation on social networking sites contain comments that range from South Carolina’s “[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge,”2 to Oklahoma’s more limiting rule that “a judge who owns an internet-based social media account may not add court staff, law enforcement officers, social workers, attorneys and others who may appear in his or her court as ‘friends’ on the account.”3 Generally the consensus of opinions concludes, as Ohio did, that “[a]s with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the... Code of Judicial Conduct.”4 The Honorable Don R. Ash, senior judge of the Circuit Court in Murfreesboro, Tennessee, noted that although he has a personal Facebook page, he does not discuss cases or what he does for a living on that site, having tried to make it private. He has never had anyone discuss a case on his “page,” saying “if it was a pending case, I would disclose 2 3 4

Advisory Committee on Standards of Judicial Conduct, Op. No. 17-2009, located at http://bit.ly/1F4qByf (South Carolina).

Judicial Ethics Advisory Panel, Judicial Ethics Op. 2011-3, located at http:// bit.ly/1N YTp0h (Oklahoma). Board of Commissioners on Grievances and Discipline, Op. 2010-7 (Dec. 3, 2010), located at http://1.usa.gov/1UbTULD (Ohio).

(the communication) on the record; depending on the situation, I might recuse.” From the district court in Kentwood, Michigan, the Honorable William G. Kelly said, “I am active personally on Facebook to keep in contact with family and friends. I have not ‘friended’ any attorneys.” He continued that although he had had requests from attorneys to join them on LinkedIn, he had not done so because “I don’t have time to keep up with another social media site, and I am concerned about potential conflicts which could arise.” Most states reviewed permit judges to have social networking accounts, providing they:

1. avoid “friending” attorneys who were or could appear before them, or at least take steps to ensure that there is no impression that attorneys who were “friends” were in a special position to influence the judge, and to avoid even an appearance of impropriety – as California Judicial Ethics Committee Opinion 66 notes, “[i]t is the nature of the [social] interaction that should govern the analysis, not the medium in which it takes place” (2010, p. 11). 2. exercise an appropriate degree of discretion in how he/she uses the social network, including not allowing participation in discussion on such sites to “impair the judicial officer’s ability to decide impartiality issues that come before the judicial

“ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.” — ABA Formal Opinion 462

25 · The Magazine of The National Judicial College · Case in Point 2015-2016


Social Media Resources for Judges

Issues related to online interaction may be addressed by the judge through disclosure or, if necessary, recusal. Participating in ESM is not grounds for disqualification, per se, because the “ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”7 Disclosure is usually required. The judge must use the same standard of analysis whether the connection with a person is a social media one or some other personal or professional relationship the judge might have, and the same disclosure requirements exist.8

The National Center for State Courts (NCSC) tracks the growth of social media use in the state courts and provides training for court personnel, state judges and others on what social media is, what the ethical issues related to social media are and the impact of new media on the courts. NCSC is also the home of the Center for Judicial Ethics, directed by Cynthia Gray, who authored “Judges and Social Networks” in the Fall 2012 edition of Judicial Conduct Reporter. Gray notes that participation on the professional site LinkedIn may result in alternate conclusions from judicial ethics committees, such as the Utah committee which held that “a judge may maintain a profile on LinkedIn that identifies himself or herself as a judge and identifies the court on which the judge serves and may join law-related or other LinkedIn groups.9 The Utah opinion also discussed, and Gray detailed, the LinkedIn “recommend” feature, allowing but with some limitations, judges to “recommend” attorneys, attorneys to “recommend” judges and judges to “recommend” judges.10 The use of electronic social media by members of the bar in election campaigns is another more narrow issue that raises potential ethical conflicts. ABA Formal Opinion 462 addresses those concerns, noting that “Rule 4.1(A)(8) prohibits a judge from personally soliciting or accepting campaign contributions other than through a campaign committee authorized by Rule 4.4. The Code does not address or restrict a judge’s or campaign committee’s method of communication.”11 The opinion further holds that “[w]ebsites and ESM promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”12 Social media is ubiquitous. Electronic communication is here to stay, encouraging and supporting a global exchange of information. As always, judges have to exercise care in utilizing those modes of technology that might raise the question of impropriety, exercising vigilance, and following this conversation closely.

5

9

American Bar Association (2013, February 21) Formal Opinion 462 retrieved from bit.ly/opinion462 California Judicial Ethics Committee Opinion 66 (November 23, 2010) retrieved from bit.ly/1JxWTs1 Gray, C. (Fall 2012) Judges and Social Networks, Judicial Conduct Reporter, retrieved April 27, 2015 from bit.ly/1LII71Z National Center for State Courts: Social Media and the Courts Network, retrieved from bit.ly/1KtEqgq Podgers, J., (2013, May 1) ABA opinion cautions judges to avoid ethics pitfall of social media, ABA Journal retrieved from bit.ly/1LIIqtE U.S. Advisory Opinion 112 (2014) retrieved from 1.usa.gov/1KtEKM0

officer.”5 For instance, “friends,” “likes,” “posts,” “tweets,” “fundraising appeals,” or “support for an organization” may indicate impropriety or the appearance of impropriety — the impression that the participant is in a special position to influence the judge.

3. stay abreast of the features of any such service he/ she uses as new developments may impact his/her duties under the Rules, including taking such steps as limiting privacy settings to avoid unintended audiences or “unfriending” attorneys who appear or will appear before the judge. “[N]ever assume any of the information they are transmitting or receiving is private or accessible to only the intended recipients.”6

6 7

Ethics Advisory Committee, Op. 09-05 (Nov. 17, 2009), located at http://1.usa.gov/1EnXn2q (Washington). Judicial Ethics Committee, Op. 66 (Nov. 23, 2010), located at http://bit.ly/1hmdlPM (California).

American Bar Association, Formal Op. 462 (Feb. 21, 2013), located at

http://bit.ly/1JCecCJ.

8 Id.

Utah Courts, Judicial Ethics Informal Op. 12-1 (Aug. 31, 2012), located at

http://bit.ly/1KSZ3xP.

10 Id.

11 American Bar Association, Formal Op. 462 (Feb. 21, 2013), located at

http://bit.ly/1JCecCJ.

12 Id. (citing Fl. Sup. Ct. Judic. Ethics. Adv. Committee Op. 2010-28 [July 23, 2010]).

Alisa Sparkia Moore, Esq. serves as director of communications and PR for the San Bernardino Community College District.

2015-2016 Case in Point · The Magazine of The National Judicial College · 26


The Future of Justice

The Future of Water Law Christal Keegan, Esq. NJC Program Attorney

An Interview with California Court of Appeal, Third Appellate District, Justice Ronald B. Robie and Colorado Supreme Court Justice Gregory J. Hobbs, Jr. Q: What do you think is the most important change in water law or water management that you have seen since the 1990s? Hobbs: I think the most important change in water law has been the over-appropriated surface water and ground water. Water law is driven by water law availability for the various uses that state and

drought. There is a raging debate over whether agriculture should be coming up to the table for all the cuts being proposed. In the San Joaquin Valley when all your surface water rights are not available you just dig a well. It’s very much like the Wild West in California.

rights regime. For instance, in Colorado and in most

Q: What will be the most important change that water judges in the next quarter century will encounter?

western states, water is held in general and public

Robie: Climate change is going to disrupt the order of

federal law allow to be formulated in the water

ownership subject to the ability of the states to settle, allocate, assign, and use rights for the public’s water resources. Mother Nature and legal arrangements (such as interstate water compacts) determine how much water is available for all these uses, including recreational, instream, agriculture, municipal, industrial and hydropower. Robie: I think the most important change in water management has been the concern for instream uses, fisheries, and environmental factors. Most of California’s water rights were established without regard to instream uses. The best example is in the late 1950’s when Friant Dam was built. It cut off the San Joaquin River and with it all downstream use including fisheries. Hobbs: I would add to that the integration or nonintegration of tributary groundwater in conjunction with surface water. In the past 20 years, Dividing the Waters sessions have been involved in environmental and fishery uses, increasingly with the interaction

things when we learn more about it. Hobbs: That is very important because the timing of agriculture wanting earlier diversions may be dramatic. Then you have the problem of hotter temperatures and more evaporation, even in the traditional agricultural season scenario. Robie: In California they are talking about more water coming through precipitation rather than snow pack but you have to be able to catch and store it and you don’t know if you can or not. Hobbs: Sure — catch it, recharge it into the aquifers or store it in surface storage or a combination of both. But getting a permit to build a new storage facility is very difficult. Robie: California has approved a big water bond issue and one of the features of it is the potential for building more storage facilities. The question is how effective they can be given the current situation. Hobbs: There’s the Clean Water Act overlay where

of the surface water resource and ground water

section 404 requires on private land, as well as public

resource where there is a hydraulic connection.

land, a dredge and fill permit from the Army Corps of

Robie: In California we have no real regulation of ground water yet. It is very dramatic right now during the 27 · The Magazine of The National Judicial College · Case in Point 2015-2016

Engineers to be able to build any significant storage or diversion feature. That kicks in the National


Environmental Policy Act and the Endangered

Robie: The entire south coastal plain of California where

Species Act. Another very notable change in the past

a vast majority of people live is a semi-desert. People

25 years has been the slowdown in being able to get

forget. We have palm trees all over Los Angeles.

new storage and diversion projects built because of the length of time it takes to get these 404 permits and to do the National Environmental Policy Act analysis.

Hobbs: That’s the symbol of Hollywood. One of the other profound things that has happened is a cooperation among the seven Colorado River Basin states. People don’t think about litigation as an alternative; they

Robie: It’s a fact of life. There are going to be changes

think about cooperation. This has extended to Mexico

in the California delta. There are already 10 lawsuits

based on the Tijuana earthquake which disrupted

and hundreds of lawyers involved. There’s always

their delivery systems. Now we have storage of

litigation and not just from environmentalists but

Mexican water in Lake Mead. Who would have

from people who feel they will be adversely affected

thought?

by new water projects. Hobbs: One enduring trend here, and we are all watching

Robie: It’s just amazing. Peace on the Colorado is the most important factor.

California, is the extent and limits of conservation. Robie: California’s water board has said we haven’t conserved enough. We are going to start seeing dead

Q: What about some of the other states? Hobbs: We have Washington and Oregon that have a

lawns. We have been laissez faire about irrigation in

wet side and a dry side; Idaho is a very interesting

urban areas.

combination of mountain, high plains, arid areas and

Hobbs: Landscaping is going to change dramatically. In Colorado, we have outlawed any covenants that require lawns. You can’t have a new covenant where some of these developments require lawns although we haven’t declared that retroactive. It’s obvious with climate change that new water projects for landscaping are going to dramatically change because

humid areas. The Rocky Mountain states extending from Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming can be identified as sharing the same kind of problem: rocky mountain arid climate, highdesert mountains that have good watersheds, and highly variable years.

about half of Colorado’s water supply for municipal

Q: Do you have any closing remarks?

use is on landscaping.

Hobbs: One of the great things about Dividing the

Robie: One of the things California’s Governor Brown has done as part of the drought was to issue an executive order that you can’t prevent someone from having their lawn go dry or brown. Homeowner’s Associations say you can’t have a brown lawn. Well, now you can. Hobbs: That’s just the fact of life in the west. We’re in the desert and we’ve lived as if we weren’t. Along the Front Range of Colorado we’ve looked like a midwestern or eastern state with lush lawns and tree canopies that weren’t here originally. There were just cottonwoods and sagebrush in the one-third that is the high plains along the Front Range eastern slope of Colorado.

Waters is that the conferences it offers have taken us around the entire west and southwest. During these conferences judges and hearing officers examine water law and management, science and technology, and effective case management. Dividing the Waters has been the only and most unique aspect of education for generations of water decision makers about how the states, feds, and these structures operate. It’s been an incredible resource to judges in states that otherwise couldn’t afford to have such judicial education. We would be sitting in solitary pods trying to do these things and not have the benefit of learning what the tools are that judges or hearing officers absolutely need when they hear one of these complex cases.

The full transcript of Ms. Keegan’s interview with Justices Robie and Hobbs can be found on the Dividing the Waters website: www.judges.org/dtw Questions developed by Alf W. Brandt, executive director of Dividing the Waters

2015-2016 Case in Point · The Magazine of The National Judicial College · 28


The Future of Justice

Growing and Learning: Applying Obergefell in State Courts Alisa Sparkia Moore, Esq.

On June 26, 2015, the United States Supreme Court issued their highly anticipated decision in Obergefell v. Hodges, the “same-sex marriage” case. In a 5-4 decision, the Court held that the denial of marriage licenses and recognition to same-sex couples violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.1 Now, with the decision in Obergefell, state courts will have to consider the same issues for same-sex married couples as they have for opposite-sex married couples: fullfaith-and-credit recognition by states of marriages, divorces and custody arrangements between parents; intestate succession; and matters related to spousal privilege, to name a few. Professor Todd Brower,2 faculty for The National Judicial College in judicial ethics, comments on additional ways that state courts may need to shift the way they view married same-sex couples in court. “Other issues will need more nuanced solutions,” Brower explained. “For example, same-sex domestic violence cases have existed in courts for years. The dynamics of abuse can take different forms in same-sex situations, requiring a differentiated response by the court. Marriage may or may not change the way that judges will handle those cases.” Asked specifically about the impact of Obergefell on medical issues, Brower answered, “Like [with] any married couple, the law assumes that a spouse (of whatever sex) is the default person to make medical decisions for someone not able to make the decisions themselves. This is not always respected, but a same-sex married couple should be treated legally the same as an opposite-sex couple. The issue will be whether practically that is true.” 1

Obergefell v. Hodges, 576 U.S. ___ (2015).

2

Professor Todd Brower has been a professor of law at Western State College of Law since 1983 and serves as the judicial education director for the Williams Institute at UCLA School of Law. In this role, he provides assistance with educational programming, curriculum development, and other resources for dealing with the varied sexual orientation and gender identity issues and challenges that appear in the courts. Contact him at tbrower@wsulaw.edu.

29 · The Magazine of The National Judicial College · Case in Point 2015-2016

Same-Sex Marriage Law in the U.S. Prior to Obergefell

DC

Legal Legal status in dispute Ban ruled unconstitutional, decision stayed indefinitely Banned

Some more challenging issues may be the intersection of marriage and religious freedom concerns. Professor Brower asks, “How will the courts, court personnel, judges all reconcile ethical obligations and canons, job duties, religious beliefs, and their impact on the public and procedural fairness demands? These challenges are already playing out in the courts and will come to the forefront as American society in various locales integrates the decision and its aftermath into daily life.” Almost half of the states have enacted religious freedom restoration acts (RFRAs) and a dozen more are considering similar laws.3 Generally, such laws prohibit the state from burdening any person’s right to exercise his or her religion. There are many opportunities for state RFRAs to collide with same-sex marriage issues and for those conflicts to be heard in the state courts. Professor Brower notes, “Some judges may have moral, religious, or personal issues about whether or not they will participate in same sex marriages.” Particularly sensitive 3

For statistics and descriptions, visit the National Conference of State Legislatures’ website at http://bit.ly/1hL2cIP


to the potential judicial ethics questions raised by these issues, he encourages judges to look to the ethics canons for guidance, including those that speak to promoting confidence in the judiciary, bias, prejudice and harassment, and extrajudicial activities in general. Joseph Sawyer, director of ethics and fairness courses at The National Judicial College, agrees. “The issues that will be litigated now are whether states may exempt state employees and judges from performing same-sex marriages on the basis of personal religious beliefs or whether businesses, licensed by the state, may refuse service to samesex couples on the basis of personal religious grounds.” Some issues raised by the decision are simply administrative in nature. Professor Brower states that “longer term, the inclusion of same-sex couples within the institution of marriage and the institution of the court system will no doubt raise some ‘growing pains’ that will be addressed going forward. Easy fixes will be things like changing forms and language to ensure access to the courts and court system for all married couples and their families.” “Courts already have many tools to deal with some questions, once they get advice on how to use them appropriately. For example, jury questionnaires and other jury issues already ask about marriage, family, and other relationships; they will now include all marriages, families, and relationships. The trick is how to differentiate between times when the identical tools can be used and when they must be modified slightly,” Brower added. The NJC also is ensuring its compliance with the Court’s holding. Chief Academic Officer Joy Lyngar explained, “While the definition of spouses has changed, all the laws in place around marriage are gender neutral. However, the NJC will be updating curricula in several courses to take into account the SCOTUS decision including Current Issues in the Law; Ethics, Fairness, and Security in Your Courtroom and Community; and Managing Challenging Family Law Cases.” When seeking out additional resources on the ruling, Professor Brower said that “among the most significant resources available to judges and courts in this area is the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy located at UCLA School of Law.”4 The Williams Institute is dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy. As a national think tank, the Williams Institute produces highquality academic research with real-world relevance and disseminates it to judges, legislators, policymakers, media,

Supreme Court Marriage Decisions Obergefell was not the first time the Supreme Court held the right to marry is protected by the Constitution, nor was it the first decision related to marriage that was without controversy. Here are a few examples cited in the decision: »» Loving v. Virginia, 388 U. S. 1, 12 (1967). Invalidating bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” »» Zablocki v. Redhail, 434 U. S. 374, 384 (1978). Held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. »» Turner v. Safley, 482 U. S. 78, 95 (1987). Held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. The Court has also ruled on the constitutionality of governmental discrimination against same-sex couples. In United States v. Windsor, the Court ruled 5-4 that section three of the Defense of Marriage Act (DOMA) was unconstitutional, barring the federal government from discriminating against married lesbian and gay couples for the purposes of determining federal benefits and protections. Professor Brower notes that more than 1,000 federal benefits and obligations were impacted by the Windsor ruling, including immigration, federal employee benefits, military and veteran spousal benefits, income and estate taxes, Family Medical Leave Act, Social Security, Medicaid and Medicare benefits, welfare and food stamps, student aid and bankruptcy filings.

and the public. State courts new to the idea of same-sex marriage need not feel isolated. Since same-sex marriage was enacted in individual states starting in the early 2000’s, several states have experience interpreting and implementing these laws. As Professor Brower observed, “Starting in 2003, various lower court decisions, state legislation, and popular referendums legalized same-sex marriage to some degree in 37 states, in one U.S. territory, and in the District of Columbia. Many states have been performing same-sex marriages for several years. They would have experience in dealing with these issues. “In the short term, state courts and court personnel will see same-sex couples, their marriages, and their families in courts and in courtrooms in all the same situations that they have always seen opposite-sex couples, their marriages, and their families. There is no longer same-sex marriage and opposite-sex marriage; there is just marriage.”

4 [http://williamsinstitute.law.ucla.edu]. 2015-2016 Case in Point · The Magazine of The National Judicial College · 30


31 路 The Magazine of The National Judicial College 路 Case in Point 2015-2016


2016 Courses Unless noted, courses are held at the College, located on the University of Nevada, Reno campus.

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Jan 25–28

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Mar 7–10 Mar 14–17 Mar 14–17

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Decision Making (JS 618) Nashville, TN General Jurisdiction (JS 610) Judicial Writing (JS 615) Tribal Court Management (JM 690) San Diego, CA Advanced Skills for Appellate Judges Napa, CA

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2015-2016 Case in Point · The Magazine of The National Judicial College · 32

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New! Webcast Series Beginning in the second half of 2015, a new series of webcasts will cover the following topics: Expert Witnesses – The Intersection of Truth and Advocacy The World of Forensic DNA Analysis Self-Represented Litigants – Is it My Turn Yet? Children in Court – Competence, Confrontation, and Special Accommodations Poetry as Judicial Medicine Staying Fit on the Bench The Work Product Doctrine Therapeutic Courts: A Systemic Approach to Social Justice Lost Profits – What is Hidden Behind the Numbers Judicial Disqualification Third-Party Litigation Funding: Investing in U.S. Litigation Understanding Structured Settlements and Structured Settlement Protection Act Proceedings – A Briefing for Judges Each webcast will cost $59. More information will be posted at www.judges.org.

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NTJC News

News

An Interview with Stan Wolfe, Director, Administrative Office of the Seminole Court On February 19, 2015, the Seminole Tribe of Florida took an historic step with the inauguration of its new judicial officers for their appellate and trial courts. NTJC Program Attorney Ashlei Neufeld and NTJC Director Christine Folsom interviewed Stan Wolfe, Director of the Administrative Office of the Seminole Court, on the long journey to the court’s creation. Q: Tell us a little bit about the structure of your court system. What jurisdiction does the court exercise? A: The Seminole Tribe of Florida amended their Constitution and Bylaws in 1983 in order to vest the judicial powers of the Seminole Tribe of Florida in a tribal court. The Constitution and Bylaws of the Seminole Tribe of Florida allows for

Seminole Tribe of Florida

both civil and criminal jurisdiction.

During their swearing-in ceremony, new Seminole Tribe of Florida judicial officers stand in front of the tree where the tribe’s first constitution was signed.

Q: Why did the Seminole Tribe decide

Q: How did you incorporate the

on each of the three reservations

to develop their court system?

community in the development

on a rotating basis. Once a model

process?

was developed, that model was

A: The need for a tribal court came

taken to the communities for their

to the forefront in 2005 when the

A: The chairman charged a small

input. The final design and ordinance

Florida Department of Children

group of individuals with discussing

establishing the court was then

and Families (DCF) came upon the

how to develop a tribal court to

discussed in tribal council before final

Seminole Tribe of Florida reservation

handle child abuse and neglect cases.

approval and implementation.

to investigate an abuse and neglect

It was this group that made the

allegation involving the grandchild of

decision to form a court committee.

Q: What was the biggest challenge

the Chairman, Mitchell Cypress. The

The committee would consist of at

that you encountered setting up your

original goal was to regain jurisdiction

least one member from each of the

court? How did you overcome the

over those cases that involved child

Seminole clans, a representative from

challenge?

abuse and neglect of the children on

each major reservation (Hollywood,

Seminole land.

Big Cypress, Brighton), and two

A: One of the biggest challenges

advisors (myself and the chairman’s

to setting up the tribal court was

policy advisor). Meetings were open

politics. Competing interpretations of

to the tribal membership and held

the Seminole Constitution were used

2015-2016 Case in Point · The Magazine of The National Judicial College · 34


to slow and inhibit the development

cases of child abuse and neglect that

you wanted to handle your matters in

of the tribal court. However, by

occur on Tribal lands. Many of them

a traditional manner, then you would

gaining community support early in

are willing to help in our development,

not be going to court and it would be

the process and gaining the support

and are eager for the day when those

handled within their traditional clan

of federal officials, we were able to

cases can be transferred to the

system.

overcome the political resistance and

Seminole Court. Q: What advice would you give to

move forward. Q: How many employees does the

other tribes looking to start their

Q. What has been the biggest

court have? How many cases do you

own court system?

success in developing the court?

anticipate the court handling in your first year?

A: Getting the court in place was the

A: Make sure you have the buy-in of all of those in power to approve the

biggest success. It has been part of

A: The Seminole Court consists of the

court system. Determine what your

the Seminole Constitution since 1983

appellate court and the trial court.

tribe’s needs are and use that need

and has never been implemented.

Each court consists of three judges.

to push the process forward. Finally,

There is also a Clerk of Court, a

make sure it is developed by and for

Q: Florida is a Public Law 280 State,

Deputy Clerk, and a Judicial Advisor

your tribe.

how did that factor into how you

for the Trial Court judges. In addition

developed your court? What is your

there is a Director who handles the

The NTJC would like to especially

working relationship like with the

administration of the Seminole Court.

thank Stan Wolfe, all the Seminole

surrounding state courts?

Therefore, we have at present 10

Tribal Court staff, justices and judges

employees with three more positions

for their kind and continued support

unfilled at this time.

of our courses and conferences.

A: Being in an optional PL 280 state allowed us to focus only on the civil

We are honored to number the new

court, leaving the criminal to remain

Q: What approach did you take in the

justices and judges of the Seminole

with the State of Florida. However,

development of your court system?

Tribe among some of our most

with an early focus on child abuse

Western, traditional, a balance of

frequent participants in 2014. The

and neglect cases there is a separate

both?

Administrative Office of the Seminole

committee that has been charged

Court graciously assisted financially

with developing the Child Welfare

A: The decision of the court

with an event in North Carolina earlier

Code. This committee has been able

committee was to go with a more

this year and we are truly grateful for

to develop working relationships with

Western style of court. It was the

their generosity.

those state court judges who handle

philosophy of the committee that if

Professor Sarah Deer named a 2014 MacArthur Fellow Sarah Deer, professor of law at the

leveraged a deeper “understanding

with no stipulations or reporting

William Mitchell College of Law, is

of tribal and federal law to develop

requirements, and allows recipients

one of the 21 exceptionally creative

policies and legislation that empower

maximum freedom to follow their

individuals who make up the 2014

tribal nations to protect Native

own creative visions. Professor Deer

class of MacArthur Fellows. Professor

American women from the pervasive

first attended the College in 2001 and

Deer focuses on violent crimes on

and intractable problem of sexual

later taught for The National Tribal

Indian reservations and has written

and domestic violence.” Fellows

Judicial Center in 2006.

books on the matter. The MacArthur

each receive a no-strings-attached

Foundation says that her work has

stipend. The Fellowship comes

35 · The Magazine of The National Judicial College · Case in Point 2015-2016


The State of Tribal Gaming Today Christine Folsom, Esq. Ashlei Neufeld, Esq.

Tribal gaming operations can positively impact communities by increasing the tribe’s ability to provide governmental programs and services while strengthening opportunities for economic development in other areas that may firmly set the tribe on the path to greater autonomy. According

The ability to build and sustain a justice system is a hallmark of a thriving sovereign government that is forward-thinking and concerned with protecting the rights of its citizens and fairly treating those who are doing business with the tribe.

to a 2013 National Indian Gaming

doing business with the tribe. Gaming can open the doors to other revenue streams like retail operations, tourism, manufacturing, business support services, aerospace, construction and healthcare services to name a few of the endless possibilities. Hand-in-hand with this tremendous opportunity for financial growth and stability comes an obligation for tribal courts to be equipped to handle cases that arise out of these business relationships.

Commission chart, 26 out of 449

throughout the state, extending a

total gaming operations made in

helping hand to build community

The goal of the NTJC is to create

excess of $250 million in revenues.1

centers, sustaining educational

lifelong learners of our colleagues

Revenues from gaming may also be

programs, and providing financial

across Indian Country. We endeavor

directed toward philanthropic giving.

assistance to individuals in need.2

to raise the benchmark of education

The National Tribal Judicial Center

The Choctaw Nation is recognized

for tribal judges. We invite you to

at The National Judicial College has

for donating to domestic and

accept the challenge and attend a

been fortunate in receiving such

international relief efforts.3

course at the NJC where you will

gifts that have helped us continue

Some tribes, like the Shakopee

develop new skills and increase your

our mission to enhance educational

Mdewakanton Sioux Community have

confidence at the side of colleagues

offerings to tribal court judges and

donated money to other tribes to

and expert faculty.

personnel, improve justice in Indian

help them move forward.4 Arizona’s

Country, and increase understanding

gaming tribes contributed $14.2

and respect between Tribal courts

million to the state’s coffers in the

and U.S. courts.

last quarter of 2014.5 These are great gifts of goodwill and compassion that

While tribes aim to primarily support their citizens as well as government

highlight the tribes’ generosity and their valuable place in this country.

The story continues at www.judges.org/tribalgaming Christine Folsom is the director of the NTJC and a citizen of the Choctaw Nation. Ashlei Neufeld is a program attorney with the NTJC.

programs and services that directly benefit them, they also

Tribal courts also benefit greatly

look outward to assist where

when supported by tribal revenues

there is a need. Gaming

and the certainty of continued

tribes in Washington assist tribal members and non-members

funding. The ability to build and sustain a justice system is a hallmark of a thriving sovereign government that is forward-thinking and concerned with protecting the rights of its citizens and fairly treating those who are

1 http://1.usa.gov/1Cu5IRu There 240 tribes in 28 states engaged in gaming. 2 http://bit.ly/1J6Gw0b 3 See http://bit.ly/1CsfseP and also

http://bit.ly/1dOVq2m

4 E.g., http://bit.ly/1eKhg7H 5 http://bit.ly/1NRYuaf


News

Judicial Studies Graduate Program: “One of the Best Educational Experiences… Ever” The National Judicial College, in

Judge Clingman called

collaboration with the University

the Judicial Studies

of Nevada, Reno, has been serving

Program the most

judges a unique educational

satisfying educational

opportunity since 1986, the

experience of his

graduate degree program in Judicial

lifetime and he

Studies. The Judicial Studies

encourages new

Program has had a distinct impact

judges he meets while

on the field of judicial education

facilitating in the

and has graduated 142 judges

General Jurisdiction

with their master’s degrees and

course at the NJC to

12 judges with their Ph.D.s.

enroll in the program.

The courses in the program include

“It was a privilege

offerings from the NJC, and

to be taught by the

specialized seminars developed by

brightest, top-flight

the University which are taught by

instructors,” he said.

Tentative 2016 University of Nevada Judicial Studies Course Offerings January 4-14

JS 750 – Criminology Matthew Leone, University of Nevada

June 20-30

JS 720 – Comparative Law Lisa Hilbink, University of Minnesota

July 11-21

JS 710 – History and Theory, Part 2 Faculty from UC Berkeley

July 11-21

JS 725 – Medical Legal Issues Richard Bjur, University of Nevada

July 25-Aug 4 July 15

JS 730 – Law and Economics Michael Gilbert, University of Virginia Thesis Orientation Elizabeth Francis, University of Nevada

top professors from around the country. Judges in the program

A current student of the program,

give high marks to all the offerings,

Judge Egan Walker from Nevada,

and gain valuable knowledge

agrees. “The program is one of

through their participation.

the best educational experiences I have ever experienced. It has

Gary Clingman is a district judge

helped with all my skills that I

in southeast New Mexico who

use while on the bench.”

completed a Master’s in 2014. He was able to use his thesis on

The program also allows for judges

Preemptory Excusal of Judges to

to meet and collaborate with other

influence the New Mexico Supreme

judges from around the country

Court: “If you file or are served in

and world. “The most interesting

New Mexico you can excuse the

thing about the program is the

assigned judge for no reason,” Judge

commonality throughout the types of

Clingman said. The supreme court

judges. I have been able to meet with

was about to severely limit this

many other judges and talk about

right but changed their proposed

some of the common challenges we

rules after reading his thesis.

have and how they dealt with the issues. You really benefit from all the

“I wrote that the court shouldn’t

other judges’ knowledge as well as

limit a right that the voters

the instructors,” Judge Walker said.

and legislators had put in place many years ago,” he said. 37 · The Magazine of The National Judicial College · Case in Point 2015-2016

— Ashley Cook

To learn more about the program, contact Professor Jim Richardson, director of the Judicial Studies Program, at (775) 784-6270 or visit www.judicialstudies.unr.edu


NJC News Advancement of Justice Award Presented to Lydia I. Beebe Longtime National Judicial College board member Lydia I. Beebe, Chevron Corporation’s corporate secretary and chief governance officer, was honored with the Advancement of Justice Award at a private reception attended by distinguished attorneys and judges from around the country in San Francisco on March 19. The Advancement of Justice award is presented to those who have demonstrated dedication to improving justice in the judiciary. Beebe served as a member of the NJC’s Board of Trustees from 2008

NJC President Chad Schmucker, Lydia Beebe, Marybel Batjer, and Peter Neeson

to 2014. During that time she held

Housing Commission, (FEHC) five

“While many care about well-

the position of Board Secretary and

years as chairman. The seven-

educated judges and efficient and

was a member of the development,

member commission is a quasi-

effective courts, not everyone steps

executive, nominating, and finance

judicial body responsible for enforcing

up like Lydia Beebe,” NJC President

and governance committees.

California’s civil rights laws as they

Chad Schmucker said.

affect employment and housing. While on the NJC board, Beebe

Beebe received a Civil Rights Hero

Beebe noted that the College’s

shepherded numerous generous gifts

award from the state of California

more than half-century of providing

from Chevron to the Pillars of Justice

during their Tribute to Legends

judicial education, and its continuing

Fund, which provides unrestricted

and Pioneers of Civil Rights for her

affiliation with the American Bar

giving directed to projects such as

leadership of the FEHC. She also

Association gives the NJC credibility

the Resource Guide for Managing

served on the San Francisco Bar

and prestige within the legal

Complex Litigation.

Association’s No Glass Ceiling in the

community. She also believes the

Legal Profession task force, was

more people learn about the College,

Beebe’s dedication to the

named a Fellow of the American Bar

the more they will want to become

advancement of justice includes

Association, and received the Legal

engaged.

her eight years of service on the

Momentum Award as a Woman of

California Fair Employment and

Achievement.

“You know when you’re dealing with the NJC, you will be working with The NJC Board of Trustees with Marybel Batjer and Lydia Beebe (front row center)

high quality, educated professionals in their respective fields,” Beebe said. “The board members, the faculty, the staff — I find them all to be very dedicated.” — Jeanne Hill

2015-2016 Case in Point · The Magazine of The National Judicial College · 38


Justice Scalia Welcomes the NJC to the U.S. Supreme Court Nearly 200 people gathered at the U.S. Supreme Court last year to celebrate the accomplishments of The National Judicial College and to spotlight the high court’s role in the College’s founding more than 50 years ago. The event was made possible by Supreme Court Justice Antonin Scalia. The September 29 event was held in the Upper Great Hall of the Supreme Court and attended by NJC donors, supporters, faculty, staff, the Board of Trustees, and the Board

Hon. Herbert Dixon, Hon. William Caprathe, Phoebe Dixon, Hon. Toni E. Clarke, Karen Lockwood, and Hon. Christopher T. Whitten

of Visitors. Peter Neeson, chair of the NJC Board of Trustees, opened the proceedings by pointing out the appropriateness of the D.C. venue given that the College may not have been created in 1963 but for the recommendation of Supreme Court Justice Thomas C. Clark. Not only was Justice Clark a staunch advocate for a national college for judges, but he subsequently served as the first chair of the NJC Board of Trustees from 1963-1970. “This event provided a great

James Bartimus and Lyn Parks

Ron Cass, Justice Antonin Scalia, and Peter Neeson

opportunity for the NJC to highlight our important work in the nation’s capital,” said NJC President Hon. Chad Schmucker. “We are profoundly grateful to Justice Scalia and our Board of Trustees for making this event possible.” Justice Scalia noted his familiarity with the NJC: “I support what you do, and I hope you have another successful 50 years,” he said. — Hon. William J. Caprathe (Ret.) Hon. Toni E. Clarke, Kim Dean Hogrefe, Matt Sweeney, Justice Antonin Scalia, Mark Tratos, Peter Neeson, and Hon. John Vittone 39 · The Magazine of The National Judicial College · Case in Point 2015-2016


NJC News www.judges.org/news

Early Adopter of Technology Improved Court’s Caseflow An intensive four-day course on caseflow management for state judges at the NJC was led by a retired judge whose early adoption of technology dramatically improved caseflow in his own home state court. Effective Caseflow Management, designed for judges, administrators, and court managers, provides a rigorous examination of the components of effective caseflow management. Hon. Chad Schmucker, the NJC’s president, offered opening remarks on how a large backlog of cases (the result of poor case management) sacrifices procedural fairness, counsels’ time and clients’ money, efficient jail operations, court resources, and peace of mind for the judge and court staff.

State Supreme Court Justice Finds ‘Other Side of the Bench’ Experience Fulfilling Nevada Supreme Court Justice Mark Gibbons discussed his experience from “the other side of the bench” on May 6, 2015, during an academic course for new judges. Justice Gibbons related his experience as a juror to over 70 new judges from around the nation during NJC’s two-week General Jurisdiction course on the University of Nevada Reno campus. The class gave attending judges an opportunity to listen to and question Justice Gibbons as well as Ms. Kris Hansen and Ms. Linda Cross — who had recently served on northern Nevada juries. Gibbons called sitting on a jury “a fulfilling experience.”

Nevada’s First Court of Appeals Judges Seek The NJC Experience

New NJC Website Both User- and Mobile-Friendly

Just weeks after being sworn in as justices in

The College debuted its new website on May 5, 2015.

Nevada’s newly created Court of Appeals, Chief

Rebuilt from the ground up on a WordPress foundation,

Judge Michael Gibbons, Judge Jerome Tao and

the site adjusts its layout on-the-fly to display optimally on

Judge Abbi Silver enrolled in two courses at the

screen sizes ranging from smart phones to large desktop

NJC for professional development. The courses

monitors. The site has also been completely reorganized

involved building their overall judicial skill sets and

to help users find what they need most with a miminum of

— an integral component of those skills — judicial

clicks. It also provides a new home for stories from Case

writing. “The courses at the NJC are helpful for me,

in Point and The Judicial Edge, the NJC’s monthly email

since there were no judges to guide us on the rules

newsletter. The site was designed and built in-house by the

and procedure for the Court of Appeals,” said Judge

NJC’s graphic and web designer, Erik Flippo.

Tao. The goal of the Judicial Writing course is to achieve a style that is simple and understandable to those who read judicial documents.

2015-2016 Case in Point · The Magazine of The National Judicial College · 40


Honors & Awards

Robert L. Parks, Esq. Receives 2015 Legal Legend Award Veteran trial attorney and NJC Board

legal system or the administration

of Visitors Chair Robert L. Parks

of justice in the 11th Judicial Circuit

received the 2015 Legal Legend

for at least 25 years. A nationally

Award from the HistoryMiami 11th

recognized trial attorney with more

Judicial Circuit Historical Society.

than 50 years of experience, Parks is a highly respected advocate in

The award recognizes members of

the courtroom and a leader in the

the legal community who have made

community.

significant contributions to the law,

Judge David Shakes Named Recipient of Sandra Day O’Connor Award Judge David Shakes, who first

to improving public education. Judge

attended the NJC in 2000, was

Shakes and the program have helped

named recipient of the Sandra Day

reach thousands of middle and high

O’Connor Award for the Judicially

school students. The program has

Speaking program he helped start in

been integrated into Colorado’s social

2009.

studies curriculum.

Judicially Speaking is a collaborative

The Sandra Day O’Connor Award for

program made possible by 100-plus

the Advancement of Civics Education

judges and educators who have

is presented annually by the National

dedicated their time and creativity

Center for State Courts.

NJC President Authors Chapter on Judicial Education for ABA Book President Chad Schmucker of The National Judicial College has been tapped to write a chapter for The Improvement of the Administration of Justice, set to be published this fall by the American Bar Association. President Schmucker has authored the chapter on “Judicial Education” in cooperation with attorney William Brunson, Director of Special Projects, who has worked in 41 · The Magazine of The National Judicial College · Case in Point 2015-2016

the academic division of the NJC for more than 20 years. According to the ABA’s Chief Counsel for the Judicial Division, Peter Koelling, “Chad was asked to author the chapter as the President of the NJC, the most significant judicial education institution in the United States.” The book will be available from the ABA online store at shop.americanbar.org.


www.judges.org/news

NJC News Baker Donelson Shareholder Matt Sweeney Named Chairman of the NJC Board of Trustees

Honors & Awards

Former judge Matt Sweeney, shareholder in the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, was recently named chair of The National Judicial College board of trustees. Sweeney has been a member of the board of trustees since 2011. “I was fortunate to attend the NJC General Jurisdiction course as a young judge. By far, it was the best and most useful judicial education I ever received. I am honored to now serve as board chair, which allows me to further advance the college’s mission. The NJC supports and sustains the American judiciary by providing ongoing training and education to underpin the rule of law and promote public confidence in the judiciary.”

Nevada Court of Appeals Oral Arguments to be Heard in October The Nevada Court of Appeals will be holding Oral Arguments in the model courtroom of The National Judicial College on Oct. 21, 2015 from 10 a.m. to noon. This will be the first time that the Court of Appeals will convene at the NJC. The bench and bar are invited to attend. Contact the Chambers of Chief Judge Michael Gibbons at (702) 486-9304 or (775) 684-1520 for more information.

Senator William J. Raggio Honored at the NJC The Senator William J. Raggio Endowment has been established by Mrs. William Raggio to honor his leadership in bringing the NJC from Colorado to Reno in 1964, and to highlight the significant part he played in securing financial support for the NJC during his long tenure in office. As a Republican member of the Nevada Senate from 1972 in 2011, he is the longestserving member in state history. He passed away in 2012. Those who wish to contribute to the Endowment can do so online at www.judges.org/donate or by contacting Jeanne Hill at (775) 327-8257 or hill@judges.org.

Judge Michael R. Morgan (left) receives the 2014 V. Robert Payant Award for Teaching Excellence from NJC President Chad Schmucker.

Judge Michael R. Morgan Receives NJC Teaching Award National Judicial College President Chad Schmucker was on-hand at the North Carolina Bar Association annual meeting in Ashville, N.C. on June 19, 2015 to present the prestigious V. Robert Payant Award for Teaching Excellence to the Hon. Michael R. Morgan, a superior court judge in the General Court of Justice for the State of North Carolina. Early in his career, Judge Morgan attended Administrative Law: Fair Hearing, a course that is still very popular today. He became a member of the NJC faculty in 1993, teaching the same course he took years before. He has continued to teach at the College every year since. From 2006 to 2008, Judge Morgan served as a member of the NJC Faculty Council, a governing body that ensures that quality teaching standards are maintained and that the curricula offered are relevant, challenging and invigorating to the College’s participants. Prior to his election to the superior court bench in November 2004, Judge Morgan served as an elected district court judge in North Carolina’s Tenth Judicial District and as a state administrative law judge with the North Carolina Office of Administrative Hearings. 2015-2016 Case in Point · The Magazine of The National Judicial College · 42


International Visitors’ Leadership Program The National Judicial College has served the educational needs of judges not only from around the U.S. but also from more than 150 countries. In recent months, as part of the U.S. State Department’s International Visitors’ Leadership

Moldova

Program, the NJC, in conjunction with the Northern Nevada International Center, played host to delegations from Romania, Panama, Costa Rica, Moldova, and Brazil. Each country’s representatives come to the United States to gain a greater understanding of the U.S. justice system. They learn how the U.S. adjudicates cases and how the NJC educates judges. Each project is carefully designed to reflect the international visitors’ professional interests as well as support U.S. foreign policy goals.

Brazil

Panama and Costa Rica

Romania


NJC News Felix F. Stumpf, Esq. Honored with Memorial Fund

In Memory Hon. Timothy C. Murphy Judge Murphy of Glens Falls, New York, long-time member of the NJC Faculty, Faculty Council and Board member, passed away on January 8, 2015 at the age of 85. Murphy served 20 years as faculty, six years on the Faculty Council, and six years as a Board member at the NJC. Judge Murphy graduated from St. Michael’s College in Vermont, Georgetown Law School

Attorney Felix Stumpf, a long-time academic employee of The National Judicial College, passed away on August 16, 2015. Mr. Stumpf served as director of the NJC’s Academic Department from 1973 to 1984 and as academic liaison officer from November 1990 to October 1991. He later served as a project consultant and publications manager. During his tenure at the NJC he wrote Inherent Powers of the Court and Bench Trial Skills and Demeanor, two publications that are still available from the NJC. He received the NJC Award for Teaching Excellence in 2001. In recognition of his many years of service to the NJC, the College is establishing The Felix F. Stumpf Memorial Fund. Anyone wishing to honor his service can donate to this fund online at www.judges.org/ donate or by contacting Director of Development Jeanne Hill at hill@ judges.org or 775-327-8257.

and The George Washington University. He began his Civil

years, later returning to the DC

Service at the National Labor

Superior Court where he served

Relations Board and in 1960

as Senior Judge until he retired.

became an Assistant U.S. Attorney for the DC Court of

A champion of the justice

General Session. In 1966 he was

system, he also was a donor to

appointed by Lyndon Johnson

the NJC for more than 24 years

as a Federal Judge for the Court

and designated a legacy gift to

where he served for nearly 40

the college upon his passing.

Joseph M. Nolan, Esq. Mr. Nolan of Mantoloking, New

University School of Law. In

Jersey, a former member of the

1954, he started his own law

NJC’s Board of Trustees, passed

firm Nolan, Lynes, Bell, & Moore

away on January 27, 2015 at

in Newark. Mr. Nolan was a

the age of 95. Nolan served as a

member of the American, New

member of the board from 1989

Jersey, Essex, and Ocean County

through 1995, and was held in

Bar Associations and served

high regard for his respect and

as President of the NJ State

love of the law.

Bar. He was a Life Member of the Fellows of the ABA and

Mr. Nolan served in the United

a permanent member of the

States Coast Guard during

Judicial Conference of the

WWII. He graduated from New

United States Court of Appeals

York University and Rutgers

for the Third Circuit.

2015-2016 Case in Point · The Magazine of The National Judicial College · 44


In Memory Hon. Robert C. Bibb July 1, 2015

How will your judicial legacy continue...

Seattle, Washington

Hon. Karen K. Braaten October 4, 2014 Grand Forks, North Dakota

Hon. Michael B. Calvin November 29, 2014 St. Louis, Missouri

Hon. J. Ernest Kinard, Jr. May 19, 2015 Camden, South Carolina

...after you’ve left the bench?

Hon. Larry J. King September 15, 2014 Olympia, Washington

Hon. Claudia House Morcom August 17, 2014 Detroit, Michigan

Hon. Paul W. Schnake November 12, 2014 Colorado Springs, Colorado

Prof. Alan J. Winters, Ph.D. January 16, 2014 Clemson, South Carolina

Hon. Eugene W. Salisbury March 27, 2013 Blasdell, New York

The National Judicial College was there for you when you began your career, it provided continuing education when you needed it most, and for some judges, it allowed you to return as faculty to prepare the next generation of adjudicators. Through your will, a charitable remainder or life trust, or by naming the NJC as the beneficiary of your life insurance or IRA, you can help the NJC continue to provide judges with the knowledge, skills and abilities vital for their role on the bench. Name the NJC as a beneficiary in your estate plan and become a member of the NJC Legacy Council. You don’t need great wealth to support the NJC. By taking care of your family first in your will or bequest, then leaving a remainder of your estate to the NJC, you can create a meaningful legacy that matches your interests and circumstances. For more information contact Jeanne M. Hill at hill@judges.org or (775) 327-8257

45 · The Magazine of The National Judicial College · Case in Point 2015-2016


NJC News NJC Awards 2014-2015 Graduates

Faculty Awards

Judicial Studies Program

35 Year Award

Master’s

Hon. Tom D. Capshaw (IN)

Hon. J. W. Looney (AR)

Hon. W. Michael Gillette (OR)

Hon. Ross P. LaDart (LA)

25 Year Award

Professional Certificate in Judicial Development

Hon. Gregory Holiday (MI)

20 Year Award

Administrative Law Adjudication Skills

William H. Anderson, Ph.D. (NV)

Hon. Steven D. Olmstead (Ret.) State Board of Equalization (WY)

Hon. William F. Dressel (HI)

Hon. Gary E. Shapiro U.S. Postal Service (VA)

Hon. Jeffery R. Nance U.S. Army Trial Judiciary (KS)

Hon. Jennifer Gee (CA)

Hon. John S. Tomlinson Idaho Transportation Dept. (ID)

Hon. George W. Riggs U.S. Navy-Marine Corps Trial Judiciary (NC)

Hon. Daniel P. Ryan (MI)

Dispute Resolution Skills

Hon. Brendan J. Sheehan Court of Common Pleas (OH)

Hon. Patrick B. Augustine U.S. Occupational Safety & Health (CO)

Hon. Tim D. Tucker Circuit Court (SD)

Hon. Don R. Ash (TN)

Hon. Sheldon P. Dorn Dept. of Motor Vehicles (NY)

Hon. Netti C. Vogel Superior Court (RI)

Hon. Eileen A. Kato (WA)

Hon. Andrew H. Henderson U.S. Navy- Marines Corps Trial Judiciary (CA)

Special Court Trial Skills

Hon. Melvin R. Hughes, Jr. Circuit Court (VA)

Hon. April J. Silversmith Magistrate Court (NM)

Hon. Gary E. Shapiro U.S. Postal Service (VA)

Hon. Gregory D. Smith Pawnee Nation Supreme Court (TN)

General Jurisdiction Trial Skills

Hon. Milton Zackios District Court (MH)

Hon. Denise Barela-Shepherd District Court (NM)

Tribal Judicial Skills

Ms. Lisa P. Jaeger (AK)

Hon. James G. Bodiford Superior Court (GA)

Hon. Marina L. Fast Horse Shoshone-Bannock Tribal Court (ID)

Hon. John C. Lenderman (FL)

Hon. Michael J. Bordallo Superior Court (GU)

Hon. Leonard R. Livingston Navajo Nation Ramah Judicial District Court (NM)

Hon. Michael N. Deegan District Court (WY) Hon. Christopher M. Greer U.S. Navy-Marine Corps Trial Judiciary (NC) Hon. Richard T. Gurley District Court (CO) Hon. Mary Katherine Huffman Court of Common Pleas (OH) Hon. Richard B. Kayne Municipal Court (WA) Hon. Nicholas Martz U.S. Navy-Marine Corps Trial Judiciary (NC) Hon. Robert H. Montgomery, Jr. Court of Criminal Appeals (TN)

Hon. Leslie A. Hayashi (HI)

15 Year Award

Hon. Toni T. Boone (OR) Hon. James A. Morrow (MN) Mr. Robert Redmond (DC) Dr. Philip M. Stahl (AZ)

10 Year Award Hon. Elizabeth H. Drews (TX) Prof. Jules Epstein (DE) Hon. Anita M. Fogle (OH) Hon. Daniel S. Jurkowitz (AZ) Hon. Alli B. Majeed (FL) Mr. Andrew Mintzer (CA) Dr. Melissa Piasecki (NV) Hon. Marshall A. Snider (CO)

Staff Excellence Awards

Prof. Yvonne Stedham, Ph.D. (NV)

Rebecca Bluemer

Mr. Mark L. Zyla (GA)

Cat Todd (retired in September 2015)

Hon. David T. Suntag (VT)

5 Year Award

V. Robert Payant Award for Teaching Excellence Hon. Michael Morgan

Advancement of Justice Award

Hon. Archie E. Blake, Ph.D. (NV) Mr. Alf W. Brandt (CA) Prof. Terence C. Coonan (FL) Hon. Patricia K. Costello (NJ) Hon. Susan L. Formaker (CA) Hon. Lisa M. Rau (PA)

Lydia Beebe, Esq. 2015-2016 Case in Point · The Magazine of The National Judicial College · 46


The NJC Welcomes New Staff Jeanne Hill,

Director of Development and Communications

Michael Jacobs, Program Attorney Michael D. Jacobs joined the NJC as

Jeanne Hill is a 20-year educational

in January 2015, following careers as

advancement professional from

an administrative law judge with the

California who joined the NJC in

state of California and as a park ranger

February 2015. Hill spent nearly 15

on Mt. Tamalpais in Marin County.

years at Moorpark College in California,

Jacobs has served as a trial attorney

first as the public information officer

for the California Department of

and then as director of the Moorpark

Transportation, legal counsel for the

College Foundation. In 2011 Hill

California Emergency Medical Services

became the director of development

Authority, a pro tem judge in the Marin County courts, and

at Villanova Preparatory School, a Catholic High School

maintained a private practice in California and New York.

in Ojai, CA. Hill received her BA in Public Relations/

He received a bachelor’s degree in government from St.

Environmental Studies from SUNY Plattsburgh.

Mary’s College of California, JD from University of the Pacific, McGeorge School of Law, and Master of Judicial

Cathy Hill, Deputy Finance Director

Studies from the University of Nevada, Reno.

Cathy Hill moved from Orange County,

Sarah Dahl, Distance Learning Manager

CA to Reno, NV in 1990, working as an accountant for a local moving

Sarah Dahl, a Nevada native, began her

company. From there she was the

career in supporting judicial education

business manager for Sage Ridge

with the National Council of Juvenile

School. She joined the NJC in May

and Family Court Judges in 2001

2015, having previously served as the

after graduating from the University

fiscal administrator of the Second

of Nevada, Reno. After taking some

Judicial District Court in Reno, working

time off to raise kids and run a small

with 15 Judges, five Masters and two Commissioners. She

business, she returned to the field

earned a BS in accounting and an MBA from the University

as the Membership and Events

of Nevada, Reno. She also holds a Professional Human

Coordinator at the State Trial Lawyer Association. She

Resources certification.

joined the NJC in November 2014, and is greatly enjoying facilitating distance and in-person learning.

Megan Downs, Communications Coordinator Megan Downs joined the NJC in

Ashley Cook, Communications Specialist

August 2015. She served as director

Ashley Cook joined The National

of communications for the Howard

Judicial College as the interim

R. Hughes College of Engineering

Communications Specialist in February

at the University of Nevada, Las

2015, and signed on full-time in May.

Vegas, and as a media relations

Cook is a Nevada native, and recent

specialist for UNLV. She also worked

graduate from the University of

as a communications coordinator for

Nevada, Reno, holding a BS in Business

Eastern Florida State College and as an

Management. Prior to joining the NJC,

education reporter at Florida Today newspaper. She holds

she worked as a business specialist

an MA and BA in journalism from American University and

at Rite of Passage, a national provider of programs and

the University of Nevada, Reno, respectively.

opportunities for troubled and at-risk youth.

47 · The Magazine of The National Judicial College · Case in Point 2015-2016


• • • •

• • • •

AudioVisual Technologies


Annual Report

2014

Making the Case for Giving to The NJC Experience More than 6,000 judicial officers

encourage you to watch our new

The NJC Experience — accessibility,

took in-person courses at the NJC

video to learn about the NJC’s

veteran faculty, relevant courses, and

and around the country in 2014.

accessibility: courses offered in

collegiality — is why 98 percent of

Another 3,800 judges and other court

Reno, around the country and online;

judges who take an NJC course say

service professionals took programs

courses led by sitting or retired

they would welcome taking future

online. We provided 561 judges and

judges from around the country

courses. However, of that total, 75

judicial personnel with $587,000 in

and from every jurisdiction; and a

percent identified a lack of funding

scholarships to attend NJC courses,

comprehensive curriculum that offers

as the primary obstacle to pursuing

with a significant amount of that

educational opportunities for virtually

continuing education.

funding coming from individual

every type of judge — at every stage

and corporate donors like those of

of his or her career — on a wide

Our board chair Matt Sweeney put

you who are reading Case in Point

variety of topics.

it best: “Well-educated judges are

magazine.

essential to a strong court system, But perhaps one of the most

which fairly and promptly resolves

Against the backdrop of historically

significant benefits of The NJC

the disputes that come before it.

high enrollments and increased need

Experience is the collegiality.

Your contributions to the College will

for scholarships, the College recently produced a Case for Support video.

help us satisfy that mission through Peer-to-peer interaction is a hallmark

programs and scholarships. Please

of an NJC education. Our faculty are

be generous. Your donations to the

We are grateful for each and every

a resource that students will tap for

College will make a difference.”

gift donated to the College and

years after they leave the course. And the networking that takes place is

Please visit www.judges.org/giving

invaluable.

today to see the video.

Hon. Chad Schmucker President


Annual Report

2014

2014 Revenue

$9,702,522

(audited)

Increase in Market Value of Investments 8% $771,470

Investment Income 3% $266,763

Contributed Services 32% $3,097,028

Other Program Income 9% $868,602

Contributions 10% $982,398

Tuition 8.7% $1,196,744 Grants 26% $2,519,517

2014 Expenses

$10,010,855

General Administrative Expense 7% $687,517

(audited)

Fundraising Expense 8% $780,167

Pension Liability Change 11% $1,082,776

Courses & Program Expense 74% $7,460,395

2015-2016 Case in Point 路 The Magazine of The National Judicial College 路 50


Assets as of December 31, 2014

$18,749,313

Furniture, Fixtures and Equipment 2% $366,951

(audited)

Accounts Receivable 3% $562,909

Deposits, Prepaid Expense and Inventory 2% $314,069

Cash 14% $2,672,151

Investments 79% $14,833,233

Liabilities and Net Assets as of December 31, 2014

$18,749,313 (audited)

Accounts Payable and Other Liabilities 3% $538,928

Deferred Revenue 2% $346,386

Pension Liability 18.0% $3,338,443

Net Assets 77% $14,525,556

51 路 The Magazine of The National Judicial College 路 Case in Point 2015-2016


Annual Report

2014

NJC Programs The NJC educates the nation’s judges through a variety of modalities supported by various funding sources. Regardless of the delivery vehicle or financial resource, every program contributes to the College’s central mission of education – innovation – advancing justice in courtrooms across the country.

1.

Tuition-based courses held

activity, and degree programs. The

at the NJC on the University

campus features museums, a world-

of Nevada, Reno Campus

class library, a picturesque century-old

Judges who came to the NJC in 2014 took part in 30 residential courses ranging from one to two weeks. This figure includes courses offered through the NJC’s National Tribal Judicial Center. The NJC prides itself on educating its faculty on state-ofthe-art adult learning principles and practices. Because of this background and education, the NJC’s diverse and experienced faculty are able to assist judicial participants in improving their core competencies through course content that the NJC evaluates and refreshes with the latest information. The teaching emphasis on “learning by doing” and providing opportunities for judges to interact with their peers from around the country are key ingredients of The NJC Experience. This immersive approach enables judges to immediately use the new information when they return to their jurisdictions. The NJC Experience includes the College’s setting: the University of Nevada, Reno. Nevada is ranked as a national Tier 1 University by U.S. News and World Report. It is a distinction earned based upon the quality of students, faculty, research

oak-lined quadrangle, and ivy-covered buildings, including the historic Morrill Hall, built in 1886.

2.

Courses Across the Country

The NJC offers several tuition-based courses in destinations around the country to satisfy the needs of more experienced judges who request specific academic subjects. The College makes it a practice to hold these enriching classes in locations that offer attractions for judges to enjoy in the off-hours. In 2014, the NJC conducted seven courses: »» Judicial Philosophy and American Law Sedona, AZ

5,625 The total number of instructional hours the NJC provided to 105 judges in the spring and fall sessions of General Jurisdiction in 2014.

63% The percentage of the NJC’s learners who are state judges. The remaining 37% of the College’s student body are administrative law, limited jurisdiction, tribal, and military judges, as well as court service professionals.

»» Today’s Justice: The Historic Bases Washington, DC »» Current Issues in the Law New Orleans, LA »» Ethical Issues in the Law: A Novel Approach Ashland, OR »» Enhancing Judicial Bench Skills Orlando, FL

2015-2016 Case in Point · The Magazine of The National Judicial College · 52


2014 NJC Enrollment at-a-Glance

»» Best Practices in Handling Cases with Self-Represented Litigants Santa Fe, NM

COURSES

ATTENDEES

Tuition-Based Courses (In-Person, Off-Site, Tribal, Web)

43

1,056

Custom-Designed Courses

39

2,122

Federal Grant Initiatives

26

1,779

Collaborations and Private Grant Initiatives

16

1,173

124

6,130

Total Live/Recorded Webcasts, Online Self-Study Courses (est.)

3,750

»» Dispute Resolution Skills Charleston, SC »» Evidence Challenges for These courses also carry the elements of The NJC Experience: Experienced faculty, a learning-by-doing approach, and peer-to-peer interaction. And, as with the Reno-based classes, many

Administrative Law Judges »» Handling Small Claims Effectively »» Ethics and Judging: Reaching Higher Ground

seminars also provide credit toward the NJC’s certificate programs and

The College also uses Blackboard to

Judicial Studies degree program.

present online pre-course and post-

3.

Tuition-based web courses

The NJC was one of the first judicial education organizations to educate judges using distance learning

course components that complement the NJC’s face-to-face courses.

4.

Custom-designed programs

For some agencies or courts, it

beginning in 1999. Today, the College’s

makes financial sense to contract

six-week Blackboard programs

with the NJC to deliver a course

feature weekly web conferences via

in the agency’s or court’s state. To

WebEx, quizzes, video clips, readings,

ensure a successful program, the

simulations, rich discussions among

NJC conducts a needs assessment

the participants and faculty, and

and presents a custom-designed

exercises — including the drafting

program at a location and date that is

of an opening statement for judges

convenient for the contracting party.

when they begin court — among

Contracting entities include federal

many others. Each faculty-led

and state administrative law agencies,

program lasts six weeks and is taught

court systems and judicial education

by a team of three to six judges

organizations, among others. For

who are subject matter experts in

instance, the Arkansas Administrative

the topics presented. In 2014, the

Office of the Courts annually funds

College’s web courses included:

a course for its limited jurisdiction judges focusing on traffic issues. In

»» Ethics for the Administrative Law Judge »» Selected Criminal Evidence Issues

the administrative law context, the District of Columbia Department of Employment Security contracted with

53 · The Magazine of The National Judicial College · Case in Point 2015-2016

$1.4 million On average, the amount the College’s 250 volunteer faculty members donate in teaching time annually.

28 Number of states that have had — or have scheduled — a Human Trafficking: What Judges Need to Know workshop. For each jurisdiction, the NJC customizes the curriculum for that state’s particular statutes and cases.


the College to present a course on

Alternatives for Safe Communities) in

unemployment adjudication. In short,

Illinois, the Pretrial Justice Institute,

if the participants can’t come to the

and private funding sources such as

NJC, the NJC can come to them.

foundations and charitable trusts.

5.

Federal grant programs and projects

The NJC is a leading resource

International programs are sometimes included in this category and sometimes funded by federal grants.

7.

Since the beginning of

presents an average of 20-30 federal

the NJC offers other kinds of web-

College, tribal judges

grant programs annually. Federally

based tools to meet the needs of

have attended the NJC’s

funded grant projects cover a wide

judges who may not otherwise

courses, but in 1992 the

range of subjects, including capital

have access to judicial education

litigation improvement, caseflow

programming. For example, the

College began offering

management, sentencing sex

College offers a series of 60- to

offenders initiatives and human

90-minute live webcasts on a variety

trafficking. A partial list of federal

of topics. Examples include:

for government agencies seeking assistance with judicial-related projects and programs. The NJC

Internet-based education

Beyond its tuition-based web courses,

of Justice Assistance; the State Justice Institute; the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; the National Highway Traffic Safety Administration; and the Federal Motor Carrier Safety Administration.

6.

These projects are mainly collaborative programs with other entities such as the International Association for the Advancement of the American Legal System, the Center for Court Innovation, the National Center for Justice and the Rule of Law, the Center for Health

the tribal judiciary. The NJC wanted to establish focused solely on tribal

»» Notable Decisions of the U.S. Supreme Court

justice, and so, in 2002

»» Understanding Co-occurring

the NJC founded The

Mental Health and Substance

National Tribal Judicial

Abuse Disorders

Center (NTJC). The

»» Mediator as Leader

Center is the result of

»» Procedural Fairness and

meetings which took place between the NJC’s

Case Management

staff and tribal judges and

Collaborations and private grant projects

courses specifically for

a separate center that

agency funders include the U.S. Department of Justice, Bureau

The National Judicial

Also popular are the self-study

leaders to define the best

recorded programs, including Taking

way to meet the tribal

the Bench: An Online Program for

judiciary’s educational

New Judges, and a series of trafficthemed webcasts.

needs. Funding to support the NTJC came from a U.S. Department of Justice, Bureau of Justice Assistance grant.

& Justice at TASC (Treatment 2015-2016 Case in Point · The Magazine of The National Judicial College · 54


NJC Boards Board of Trustees The College has an appointed 18-member Board of Trustees, which sets policy, fosters a climate of excellence,

Mark G. Tratos, Esq. Las Vegas, NV

promotes the development of innovative judicial education

Founding & Co-managing Shareholder of the Las Vegas

programs and provides leadership in achieving the NJC’s

office of Greenberg Traurig and founder of the law firm of

mission. Trustees are dedicated individuals from diverse

Quirk & Tratos. Graduate, University of Nevada, Las Vegas

fields encompassing the law and the judiciary, as well as

and Lewis & Clark Law School. Teaches at University of

business and corporate areas.

Nevada, Las Vegas William S. Boyd School of Law. Serves as chairman of the BOV and Vice-Chair of the BOT for the

Matt Sweeney, Esq., Chair Nashville, TN

Mediator and arbitrator; Shareholder and Conflict Counsel,

Lewis & Clark School of Law.

Peter Bennett, Esq. Portland, ME

Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C.

Managing partner of The Bennett Law Firm. Graduated

Graduate, Seton Hall University and Vanderbilt University

Harvard College with honors and Boston University School

School of Law. Graduate of the NJC General Jurisdiction

of Law and Graduate School of Management. Chair of

Program. Fellow of the Nashville Bar Foundation and the

the Standing Committee on Judicial Independence of the

Tennessee Bar Foundation.

ABA. Past Chair of the Tort Trial and Insurance Practices

Peter J. Neeson, Esq., Immediate Past Chair Philadelphia, PA

Senior partner and Chair of Rawle & Henderson’s Environmental, Toxic and Mass Torts Department.

Section (TIPS) of the ABA. Recipient of Numerous awards including Top 100 Most Powerful Employment attorneys in the Nation.

Alan R. Brayton, Esq. Novato, CA

Graduate, University of Miami Law School. Past chair of

Senior & Founding Partner of Brayton • Purcell in Novato,

the Tort, Trial and Insurance Practice Section (TIPS) of

CA. Judge Advocate in the United States Air Force.

the American Bar Association. Founder of the ABA TIPS

Recognized as one of the West’s leading attorneys. Under

Leadership Academy and founder of the ABA TIPS Trial

his leadership, Brayton Purcell has become one of the

Academy.

premier trial firms in the western US.

Kim Dean Hogrefe, Esq., Secretary

Elizabeth J. Cabraser, Esq.

Senior Vice President of Chubb & Son. He is the

Partner at San Francisco’s Lieff Cabraser Heimann &

Worldwide Claim Technical Officer of Chubb’s Claim

Bernstein. Graduated, U.C. Berkeley and Boalt Hall School

Department. Graduate, Yale University and the University

of Law. Committees include the ABA’s Committee on Mass

of Pennsylvania Law School. Served as the Financial Officer

Torts, TIPS and the Federal Bar Association. Ranked as one

and on the governing Council of the Tort Trial & Insurance

of the 100 most influential lawyers in America.

Warren, NJ

Practice Section (TIPS) of the ABA.

Wm. T. (Bill) Robinson, III, Esq., Treasurer and Chair-Elect

San Francisco, CA

Hon. Toni E. Clarke Upper Marlboro, MD

Seventh Judicial Circuit sitting in the Circuit Court for

Florence, KY

Prince George’s County, Maryland. Graduated, University

Member-in-Charge, Northern Kentucky offices of Frost

of Maryland Frances Carey Law School and Pennsylvania

Brown Todd LLC. Inducted into the University of Kentucky,

State University. First African-American Female to serve

College of Law’s Alumni Hall of Fame. Was the 135th

as State’s Attorney for Prince George’s County. Chair of

ABA President. Graduate, Thomas More College and the

the Standing Committee on Diversity in the Judiciary, and

University of Kentucky, College of Law.

is Chair-Elect of the National Conference of State Trial Judges of the Judicial Division of the ABA.

55 · The Magazine of The National Judicial College · Case in Point 2015-2016


NJC Boards Board of Trustees continued Hon. Larry Craddock (Ret.)

Walter L. Sutton, Jr., Esq.

Former Administrative Law Judge in Texas. Graduated,

Associate General Counsel - Legal Administration and

University of Texas at Austin and University of Texas

External Relations at Wal-Mart Stores, Inc. Graduate,

School of Law. Board Certified in Administrative Law by

University of Denver, university of Michigan Law School

the Texas Board of Legal Specialization. Past president

and University of Dallas. Chair of the National Bar Institute

of the National Association of Administrative Law Judges

Board of Directors, ABA Diversity Center Board, the Board

(NAALJ); past chair of NCALJ, Judicial Division.

of Advisors of the Institute for the Advancement of the

Austin, TX

Hon. J. Michael Eakin Harrisburg, PA

Justice, Supreme court of Pennsylvania. Graduated,

Dallas, TX

American Legal System.

Hon. John M. Vittone (Ret.) Silver Spring, MD

Franklin & Marshall College and Dickinson School of Law.

Serves on the Foreign Service Grievance Board after

Widener University School of Law adjunct professor.

retirement as the chief judge of the U.S. Department of

Ann Thornton Field, Esq.

Labor. Graduate, University of Richmond and University of Kentucky Law School. Public member of the Administrative

Philadelphia, PA

Conference of the US (ACUS); chair of the adjudication

Member Gordon & Rees LLP. Prior to joining Gordon &

Committee for the ACUS.

Rees, Ms. Field was a partner at Cozen O’Connor and served on that firm’s Executive Committee and as Chair of the General Litigation Department. Board Member of

Hon. Christopher T. Whitten Phoenix, AZ

the International Aviation Woman’s Association. Graduate,

General jurisdiction trial court judge on the Superior Court

University of Houston Law Center.

of Arizona, where he serves as the Presiding Tax Judge for

Hon. J. Matthew Martin

the State of Arizona. Graduate, University of Arizona and University of San Diego School of Law. Chair of the ABA’s

Asheville, NC

National Conference of State Trial Judges; Secretary of the

Administrative Law Judge with the Social Security

Board of Trustees for the Foundation for Blind Children.

Administration in Greenville, NC. Graduate, UNC School of Law and the University of Nevada, Reno. Recipient of the Livingston Hall Juvenile Justice Award, and the Franklin

Sandra S. Yamate, Esq. Chicago, IL

Flaschner Award as the Nation’s outstanding specialized

Chief Executive Officer of the Institute for Inclusion in the

Court Judge.

Legal Profession (IILP). Graduate, University of Illinois at

Tony F. Sanchez, III, Esq.

Urbana-Champaign and Harvard Law School. Founding member of the Asian American Bar Association of the

Las Vegas, NV

Greater Chicago Area and the National Asian Pacific

Senior Vice President of Government and Community

American Bar Association.

Strategy at NV Energy. Graduate, University of Nevada, Las Vegas and Arizona State University College of Law. ViceChair of Nevada Partners, is on the Executive Committee of the Clark County Public Education Foundation, and serves on two Nevada System of Higher Education committees.

2015-2016 Case in Point · The Magazine of The National Judicial College · 56


Board of Visitors The NJC’s Board of Visitors is a nationally recognized and select group of individuals charged with furthering the

A. Clifford Edwards, Esq. Billings, MT

quality of education offered by the NJC. They are renowned

Partner, Edwards Frickle & Culver. Secretary-Treasurer of

professionals who bring a cross-section of perspectives to

the International Academy of Trial Lawyers, member of the

improve the administration of justice through education.

American College of Trial Lawyers and chapter member of

Members also serve as goodwill ambassadors of the NJC

the American Association for Justice. Graduate, University

by enhancing awareness of the College and assisting with

of Montana.

fundraising efforts. We are proud to include the following as members of the Board of Visitors.

Stephen F. English, Esq. Portland, OR

Robert L. Parks, Esq., Chair

Partner, Perkins Cole LLP. Member of the International Academy of Trial Lawyers (IATL), state co-chair of the

Miami, FL

international branch of IATL and Fellow of the American

Principal, Law Offices of Robert L. Parks Law. Past

College of Trial Lawyers. Graduate, Hastings College.

President of the International Academy of Trial Lawyers, a Fellow in the American College of Trial Lawyers and a Fellow of the International Society of Barristers. Graduate, Georgetown University.

James R. Bartimus, Esq., Vice Chair

Hon. Sophia H. Hall Cook County, IL

Judge Hall is the Administrative Presiding Judge of the Resource Section of the Juvenile Justice and Child Protection Department of the Circuit Court of

Kansas City, KC

Cook County, IL. She was the chair of the NJC Board

Partner, Bartimus, Frickleton, Robertson & Goza. Past

of Trustees in 2012. In 2014, she established a named

president of the Civil Justice Foundation, Missouri

scholarship endowment to benefit Illinois judges. Graduate,

Association of Trial Attorneys, Missouri Institute for

Northwestern University School of Law.

Justice and the Kansas City Metropolitan Bar Association. Graduate, University of Missouri-Kansas City.

Jack Balagia, Esq.

John L. Holcomb, Esq. Tampa, FL

Shareholder, Litigation Group, Hill Ward Henderson.

Dallas, TX

Former past president, national secretary and vice

Vice-President and General Counsel, ExxonMobil

president for American Board of Trial Advocates (ABOTA)

Corporation. Member of the Board of Trustees of the

and current member of the Litigation Counsel of America

Center for American and International Law. Past member

and the International Association of Defense Counsel.

of the Board of Directors of the Institute for Legal Reform

Graduate, University of Florida.

of the U.S. Chamber of Commerce. Graduate, University of Texas at Austin.

Timothy R. Donovan

William H. Hurd, Esq. Richmond, VA

Partner, Troutman Sanders. Former Solicitor General

Las Vegas, NV

of Virginia, current Adjunct Professor at George Mason

Executive Vice President, General Counsel and Chief

School of Law, served on the 2011 Independent Bi-partisan

Regulatory & Compliance Officer of Caesars Entertainment

Advisory Commission on Redistricting. Graduate,

Corporation. Director of John B. Sanfilippo & Son Inc.

University of Virginia.

Former director of Allied Waste Industries, Renowned Auto Products Manufacturers Ltd, and a member of the American and Chicago Bar Associations. Graduate, Capital University.

57 · The Magazine of The National Judicial College · Case in Point 2015-2016


NJC Boards Board of Visitors continued Irwin A. Molasky

Peter Chase Neumann, Esq.

Chairman, The Molasky Group of Companies. Founder/

Senior Partner, Peter Chase Neumann. Past president

former senior officer, Lorimar Productions, prolific real

of Tucson Trial Lawyers and Nevada Trial Lawyers

estate developer who built Sunrise Hospital Surgical Center

Associations. Diplomat and past president of ABOTA, Reno

& Medical Center, Las Vegas’ first private hospital. UCLA

Chapter. Graduate, University of Arizona.

Las Vegas, NV

alumnus.

John H. Mowbray, Esq.

Reno, NV

Charles E. Patterson Los Angeles, CA

Las Vegas, NV

Senior Counsel, Morrison & Foerester, LLP. Fellow of

Managing Director of the Las Vegas office of Fennemore

the American College of Trial Lawyers, Diplomat of the

Craig. Past president of the State Bar of Nevada where he

American Board of Trial Advocates, & Fellow of the

served on the Board of Governors for seven years, chaired

International Society of Barristers. Graduate, University of

the State Bar of Nevada’s Multijurisdictional Practice

Michigan.

Committee and served on the Nevada Supreme Court’s Multijurisdictional Practice Committee. Graduate, J.D., University of Notre Dame.

J. Edward Neugebauer, Esq.

James W. Quinn, Esq. New York, NY

Former chair of Global Litigation, Weil, Gotshal & Manges, LLP. Fellow of the International Academy of Trial Lawyers

Philadelphia, PA

& the American College of Trial Lawyers. Member of the

Head of Litigation, Aetna, Inc. Former health care litigator

International Society of Barristers. Graduate, Fordham.

in the Washington D.C. office of Epstein Becker and Green. Member of the Oklahoma, Virginia and Pennsylvania bars. Graduate, University of Oklahoma.

Marsha J. Rabiteau, Esq. Alexandria, VA

Executive Director, Legal Policy Strategies Group. Present or past leadership/board member of State Justice Institute, Civil Justice Reform Group, Product Liability Advisory Council, American Tort Reform Association, International Association of Defense Counsel and the Institute for Legal Reform. Graduate, Marquette.

Patricia K. Rocha, Esq. Providence, RI

Shareholder, Adler Pollock & Sheehan, P.C. Former Member and Chair, Federal Board of Bar Admissions for the U.S. District Court for the District of Rhode Island. Fellow, American College of Trial Lawyers & International Academy of Trial Lawyers. Graduate, Boston College.

Hon. James D. Rogers (Ret.) Minnetonka, MN

James D. Rogers served 32 year as a Judge in the Fourth Judicial District of Minnesota and is a founding member Forest Landowners Tax Council Board of Directors. Former chair and member The National Judicial College Board of Trustees. Graduate, University of Minnesota. The NJC’s Model Courtroom 2015-2016 Case in Point · The Magazine of The National Judicial College · 58


Faculty Council NJC Faculty Council members help ensure that quality teaching standards are maintained and that the curricula

Hon. Toni T. Boone (Ret.) Portland, OR

offered are relevant, challenging and invigorating to

Served 29 years as an administrative law judge in Arkansas

the College’s participants. There are ten members on

and Nevada until her retirement in 2014. Graduate,

the Faculty Council who serve on staggered three year

University of Arkansas. Served as faculty at NJC since

terms. The members of the Faculty Council continue to

2000. Serves on National Association of Hearing Officials

recognize the outstanding efforts of the College’s volunteer

Board of Directors.

faculty through hosted faculty receptions and dinners, commemorative awards, faculty development workshops for in-person and distance education programs, and special recognition for NJC outreach efforts.

Hon. Elbridge Coochise (Ret.) Phoenix, AZ

Owner and operator of Coochise Consulting, LLC. Served as faculty at NJC since 1993. Helped establish three Tribal

Hon. Don R. Ash, Chair Murfreesburo, TN

Senior Judge for the state of Tennessee. Graduate, Middle Tennessee State University, University of Memphis and

courts (CT, IA, and CA). Member of the Advisory Council to The National Tribal Judicial Center at NJC.

Hon. Jane D. Fishman Plantation, FL

University of Nevada, Reno. Served as faculty at NJC since

Serves on the bench of the Broward County Court,

2001. Authored over 40 appellate opinions.

Plantation, Florida. Graduate, University of Pittsburgh and

Hon. Andre M. Davis, Immediate Past Chair Baltimore, MD

Appointed to the U.S. Court of Appeals, 4th Circuit after being nominated by President Barack Obama. Graduate, University of Pennsylvania and University of Maryland

Brooklyn Law School. Served as faculty at NJC since 2006. Chair of civil education for the Conference of County Court Judges for the state of Florida.

Hon. William G. Kelly Kentwood, MI

School of Law. Served as faculty at NJC since 1994.

Served as judge of the 62-B District Court in Kentwood,

Traveled to Kazakhstan and Kyrgyzstan to teach economic

Michigan since 1979. Graduate, University of Detroit and

criminal law for the NJC.

University of Detroit School of Law. Served as faculty

Hon. Steve L. Smith, Chair-Elect Bryan, TX

Judge of the 361st District Court in Bryan, TX. Graduate, Abilene Christian University and University of Texas School

at NJC since 2001. Served as a member of the board of directors of the National Center for State Courts.

Hon. Daniel P. Ryan, J.D., Ph.D. Detroit, MI

of Law. Served as faculty at NJC since 2003. Past chair

General jurisdiction judge for the 3rd Judicial Circuit Court

of the ABA Judicial Division’s National Conference of

in Detroit, MI since 1998. Graduate, University of Detroit,

Specialized Court Judges and the Judicial Section of the

University of Notre Dame Law School and University of

State Bar of Texas.

Nevada, Reno. Served as faculty at NJC since 1996. Author

Hon. Jennifer Gee, Secretary San Francisco, CA

District chief judge with the U.S. Department of Labor

of two books and numerous law review articles.

Hon. V. Lee Sinclair, Jr. Canton, OH

Office of Admin Law Judges in San Francisco, CA.

Served as a judge for Stark County Common Pleas Court in

Graduate, University of California at Berkeley and

Canton, Ohio since 1995. Graduate, Kent State University

University of California Berkeley School of Law. Served as

and University of Akron School of Law. Served as faculty

faculty at NJC since 1994. Past president of California/

at NJC since 2002. Co-author of “Handling Capital Cases,”

Nevada Women Judges.

“Law Enforcement Officer’s Guide to Juvenile Law,” “Banks Baldwin Domestic Relations Law.”

59 · The Magazine of The National Judicial College · Case in Point 2015-2016


Donors A Message from the Director of Development/Communications This issue of Case in Point focuses on the future of justice, and though I am new to The National Judicial College, I can already see that everyone here is intensely focused on the future of judicial education. I arrived on campus in February and was immediately impressed by the professional academic staff and the enthusiastic and competent Development/Communications team. A very dedicated Board of Directors and Board of Visitors are partnering with me to increase philanthropic support of the NJC to further our strategic goals. Over the past few months, I have had the pleasure of getting to know many of the NJC’s supporters. All are proud to invest in our robust educational organization that serves nearly 10,000 members of the judiciary annually. Thank you for support, which is vital to the NJC’s mission of education – innovation – advancing justice.

2014 Donors Special Recognition Donors ($100,000 +)

American Bar Association State of Nevada Laura and John Arnold Foundation Hon. Marilyn H. Loftus (NJ) Tom C. Clark Pinnacle Circle ($25,000 +)

Chevron Corporation

The Kaul Foundation

Mr. and Mrs. Saul A. Wolfe (NJ)

M. R. Bauer Foundation

Wynn Resorts, Limited

Rawle & Henderson, LLP Robert Z. Hawkins Foundation South Carolina Bar Foundation The John Ben Snow Memorial Trust

Diamond Gavel Circle ($2,500 - $4,999) American Bar Association Lydia I. Beebe (CA)

President’s Circle ($5,000 - $9,999)

Hon. Gary L. Clingman (NM) Hon. William Edelman (WY)

Aetna

Gabelli Foundation Inc.

American Board of Trial Advocates

Prof. Ronald R. Hofer (WI)

Barrick Gold Corporation

Irwin and Susan Molasky (NV)

Bartimus, Frickleton, Robertson & Goza

Peter C. Neumann, Esq. (NV)

ExxonMobil Corporation

David J. Beck, Esq. (TX)

William T. Robinson, III, Esq. (KY)

Hon. Sophia H. Hall (IL)

Elizabeth J. Cabraser, Esq. (CA)

Matt Sweeney, Esq. (TN)

NV Energy Foundation

Caesars Entertainment

The E. L. Cord Foundation William N. Pennington Foundation Tom C. Clark Founder’s Circle ($10,000 - $24,999)

A. Clifford Edwards, Esq. (MT) Ann Thornton Field, Esq. (PA) Helen Roberti Charitable Trust John L. Holcomb, Esq. (FL)

Anonymous (1) Mr. and Mrs. Albert R. Abramson (CA)

Samuel S. Lionel, Esq. (NV)

Baker, Donelson, Bearman Caldwell & Berkowitz, PC

Lionel Sawyer & Collins Anonymous (1)

McDonald Carano Wilson LLP

Chubb & Son, Inc.

Robert L. Parks, Esq. (FL)

International Academy of Trial Lawyers Foundation

Hon. and Mrs. V. Robert Payant (WI)

J. F Maddox Foundation

Platinum Gavel Circle ($1,000 - $2,499)

Jack Balagia, Jr., Esq. (TX) Marybel Batjer (NV) Edna B. Benna (NV)

Patricia K. Rocha, Esq. (RI) The Charles H. Stout Foundation

Peter Bennett, Esq. (ME) Javade Chaudhri, Esq. (DC) Chevron Humankind Matching Gift Program Colorado Judicial Institute

2015-2016 Case in Point · The Magazine of The National Judicial College · 60


Hon. Larry J. Craddock (TX)

Hon. E. Maurice Braswell (Ret.) (NC)

Hon. Michael Eakin (PA)

Hon. Cynthia L. Brewer (MS)

Hon. Ana Lisa Garza (TX)

Hon. Michael J. Cassidy (VA)

Rew R. Goodenow, Esq. (NV)

Hon. Marc A. Cianca (FL)

Greenberg Traurig, LLP

Hon. Joseph E. Cirigliano (OH)

Hon. Karl B. Grube (FL)

Hon. Richard Cisneros (TX)

Hon. Procter R. Hug, Jr. (NV)

Hon. Jess B. Clanton (OK)

Hon. Karen L. Hunt (Ret.) (AK)

Hon. Toni E. Clarke (MD)

Peter J. Neeson, Esq. (PA)

Hon. Jim Davidson (MS)

Dale K. Raggio (NV)

Hon. Andre Davis (MD)

Hon. James D. Rogers (Ret.) (MN)

Hon. Mark R. Denton (NV)

Hon. Alexander M. Sanders, Jr. (Ret.) (SC)

Hon. and Mrs. Samuel G. DeSimone (Ret.) (NJ)

Phil and Jennifer Satre Family Charitable Fund at the Community Foundation of Western Nevada

Hon. Jane D. Fishman (FL)

Hon. and Mrs. Chad C. Schmucker (NV) John A. Tarantino, Esq. (RI) Wells Fargo Foundation Hon. Douglas G. White (TN) Bruce D. Gesner, Ph.D. & B. Phyllis Whittiker, Esq. (NV)

Crystal Gavel Circle ($500 - $999) Hon. and Mrs. James G. Blanchard, Jr. (GA) Mr. and Mrs. William J. Brunson (NV) James E. Coleman, Jr., Esq. (TX) Hon. and Mrs. Patrick Flanagan (NV) Robert Gabrielli (NV) Hon. and Mrs. Robert C. Halbritter (Ret.) (WV) Mr. and Mrs. Ed Lyngar (NV) Hon. James B. Malloy (IA) Hon. Matthew Martin (Ret.) (NC) Hon. William G. Meyer (CO) Mr. and Mrs. Carl Naumann (NV) Albert Pagni, Esq. (NV) Hon. and Mrs. Earl G. Penrod (IN) Hon. Jerome M. Polaha (NV) Hon. James M. Redwine (IN) Tony F. Sanchez, III (NV) Gretchen and Thomas Sawyer (NV) Mark G. Tratos, Esq. (NV) Douglas Unger (NV) Hon. John M. Vittone (Ret.) (MD) Hon. J. Scott Vowell (Ret.) (AL) Katheryn Yetter, Esq. (NV)

Golden Gavel Circle ($250 - $499) Aetna Foundation Hon. Neil E. Axel (Ret.) (MD) Muriel M. Bartlett (NV) Hon. Linda M. Billings-Vela (CO)

2014 Pillars Of Justice Freedom Circle ($25,000 +)

Chevron Corporation Liberty Circle ($15,000 +)

Chubb & Son, Inc. Justice Circle ($10,000 +)

Hon. Kevin L. Fitzwater (NM) Friends of Marybel Batjer Hon. Nancy A. Fuerst (OH) Hon. Stephen S. Goss (GA) Hon. Denis E. Guest (IL)

McDonald Carano Wilson LLP Honor Circle ($5,000 +)

Hon. George N. Hardesty, Jr. (AL) Kim D. Hogrefe, Esq. (NJ) Hon. Michael D. Jacobs (CA) Hon. James E. Kelley (Ret.) (IA) Hon. Jeffery W. Kelley (AL)

Barrick Gold Corporation McDonald Carano Wilson LLP Rawle & Henderson, LLP

Hon. John W. Kennedy, Jr. (CA) Irwin Kishner, Esq. (NV) Hon. David M. Krashna (CA) Hon. Thomas J Lanphear (GA) Hon. Gregory G. Lyman (CO) Hon. Charles M. McCullough (WA) Marilyn R. Melton (NV) Hon. Melvin M. Menegat (OR) Hon. William F. Morgan (PA) Hon. James A. Morrow (MN) Hon. Lewis Nixon (IL) Jack H. Olender, Esq. (DC) Hon. Steven D. Olmstead (WY) Hon. George M. Peagler, Jr. (GA) Hon. and Mrs. Guy D. Pfeiffer (GA) Dr. Kenneth D. Robinson (TN) Hon. Robert E. Rose (NV) David A. Sellers (VA)

Honorable Mention Donors to Pillars Of Justice Fund Hon. Chad C. Schmucker (NV)

2014 Circle of Justice Members Mr. and Mrs. Ed Lyngar (NV) Hon. Jerome M. Polaha (NV)

In Honor of In Honor of Hon. Neil E. Axel Edith A. Weiner (NY)

Hon. David L. Shakes (CO)

In Honor of William C. Bunch

Glenna J. Sheveland, Esq. (NC)

Hon. Thomas M. Ammons, III (VA)

Hon. and Mrs. Olin W. Shinholser (FL) Hon. and Mrs. Michael A. Silverstein (RI) Thomas E. Spahn, Esq. (VA)

In Honor of Thomas Capshaw Hon. Carol A. Eckersen (CA)

Hon. James O. Spence (SC)

In Honor of Kathryn J. Edelman

Hon. Keith Starrett (MS)

Hon. William Edelman (WY)

Hon. Philip S. Straniere (NY)

In Honor of Karl B. Grube

Hon. Tracie A. Todd (AL) Hon. Jerry M. Vanderhoef (AL) Nancy Neal Yeend (CA) Gordon I. Zimmerman, Ph.D. (NV)

Hon. Archie E. Blake (NV) Hon. Todd Blomerth (TX)

Ronald Jansen, Esq. (IL)

In Honor of Marie Marino Hon. Bruce S. Mencher (DC)

In Honor of Joe N. Pigott Hon. Keith Starrett (MS)

Dan W. Bolton, III, D.O., J.D., LLM (NV)

In Honor of Mary L. Radcliffe

Hon. Toni T. Boone (Ret.) (OR)

Hon. Leslie A. Wagner (WA)

Hon. George H. Boyett (TX)

61 路 The Magazine of The National Judicial College 路 Case in Point 2015-2016


Donors In Honor of Gareth Rosenau

In Memory of William H. Erickson

In Memory of Donald P. Smith

Mr. Emmanuel Horowitz (VA)

Prof. Henry R. Reeve (CO)

Marjorie G. Smith (CO)

In Honor of Christiane Freifrau v d. Tann

In Memory of Richard D. Galstad

In Memory of Gerald Svetanoff

Hon. Marsha Bergan (IA)

Hon. and Mrs. E. Duane Daugherty (IN)

Hon. Juergen Maruhn (Germany)

In Memory of George H. Garrett

In Memory of Edith A. Weiner

Hon. Robert L. Childers (TN)

Hon. Neil E. Axel (Ret.) (MD)

In Memory of Jim Goode

In Memory of Gordon E. White

Hon. Jesse Goode (DC)

Hon. Douglas G. White (TN)

In Memory of Elmer “Al” M. Gunderson

In Memory of Jim Williams

Peter C. Neumann, Esq. (NV)

In Memory of Robert A. Wright

In Honor of John M. Vittone Mr. and Mrs. Stephen Malphrus (MD)

In Memory of In Memory of David B. Babbitt Hon. Philip T. Kyle (Ret.) (KS)

In Memory of Charles A. Brewer Hon. Cynthia L. Brewer (MS)

In Memory of Lura B. Caldwell Marybel Batjer (NV)

In Memory of Michael B. Calvin Hon. Charles A. Shaw (MO)

In Memory of Clifford J. Cawley Hon. Mary Jacobson (NJ)

In Memory of Catherine E. Connolly Hon. Thomas E. Connolly (MA)

In Memory of John V. Corrigan Hon. Colleen Conway Cooney (OH)

In Memory of Frances H. Hicks Hon. George G. Hicks (ID)

In Memory of Dick Jermen Hon. Robert L. Childers (TN)

In Memory of William H. McDermott

Hon. Duane R. Harves (Ret.) (MN) Hon. Nathaniel Nichols (PA)

2014 Donors to the William F. Dressel Scholarship Endowment

Hon. Michael A. Youngpeter (AL)

American Bar Association

In Memory of John F. Mendoza

Colorado Judicial Institute

Tony F. Sanchez, III (NV)

Chevron Humankind Matching Gift Program Rew R. Goodenow, Esq. (NV)

In Memory of Barbara Poplin Hon. Jess B. Clanton (OK)

In Memory of William J. Raggio Dale K. Raggio (NV)

In Memory of Homer Salinas

Rawle & Henderson, LLP Hon. Frederic B. Rodgers (Ret.) The Phil and Jennifer Satre Family Charitable Fund at the Community Foundation of Western Nevada Gretchen and Thomas Sawyer (NV)

Hon. Bobby Flores (TX)

2015-2016 Case in Point · The Magazine of The National Judicial College · 62


From the Archives

Justice William A. Grimes “Tough, bright… inspiring. Retired Chief Justice William Grimes has been teaching in the College’s largest course, General Jurisdiction, for 35 years. It is safe to say he has touched the lives of more judges in America than any other person.” So went the opening paragraph of the cover article of the Summer 1998 NJC Alumni magazine featuring Justice William A. Grimes and his wife, Barbara. Justice Grimes had been a member and Chief Justice of the New Hampshire Supreme Court following a 20-year career as a trial judge. He was also a charter faculty member of the NJC who ended up teaching 120 courses in his lifetime. He was very active with the American Bar Association, becoming chair of the Appellate Judges Conference and running its Appellate Judges Seminar series for many years. Why are we featuring Justice Grimes today even though he passed away in 1999 (and Barbara died in 2005)? Because he established a legacy gift at the NJC. In his will, Justice Grimes created The Chief Justice William A. Grimes Criminal Law Outline Endowment Fund. Gifts in memory of Justice Grimes were added to enhance the fund. The Criminal Law Outline was published annually by the College and Justice Grimes served as its author. He had started the Outline as a quick reference guide to judges who often had to make snap decisions on due process, search and seizure and other thorny issues. He read every case issued by the U.S. Supreme Court — every case — each year to fund any guidance on topics covered in the Outline. It was a labor of love. So it was no surprise that he designated the endowment fund to preserve the Outline to educate future generations of appellate court judges. However, the College ceased publishing the booklet after 2008. “When I came on board, I became aware a few endowment funds had become idled in recent years,” said NJC President Chad C. Schmucker, who became president of the NJC in January 2014. “The investment income continued to accrue but the proceeds weren’t being used. When I looked at the Grimes Fund situation, it was clearly 63 · The Magazine of The National Judicial College · Case in Point 2015-2016

a victim of technology.” The publication’s demise was due in part to the trend of print publications moving to online platforms. More critically, noted Schmucker, the content of the Criminal Law Outline could be readily found on both fee-based Internet services such as Westlaw and Lexis, and also on some free websites. As a result, the NJC sought to re-purpose the Grimes endowment from a publication fund while still retaining the endowment’s original intent: that it benefit state and federal appellate judges and that the name William A. Grimes remain perpetually associated with the fund. “It is a testament to Justice Grimes that he had the foresight to know something like this might occur so he provided for an alternative use of the endowment for appellate judge education,” said President Schmucker. “We are following his intent and direction in creating the William A. Grimes Appellate Judge Scholarship.” “The Grimes family is thrilled that our father’s legacy will continue to be attached to a fund for appellate judge education,” said Gordon F. Grimes, Justice Grimes’ son and an attorney with Bernstein Shur Sawyer Nelson in Portland, ME. “The College was one of his great passions so we are pleased that this fund will be used in his memory.” Justice Grimes’ daughter, Gail Terry Grimes, a writer who started her career at the NJC, added: “If we could sum up what our father stood for, it would be a sense of fairness. He loved the College and he would have loved knowing that more judges would have access to it through these scholarships.”

— Bob Gabrielli

The NJC plans to award the first William A. Grimes Appellate Judge Scholarship in 2015-16.


2015-2016

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Case in Point 2015-2016  

This issue focuses on "The Future of Justice." Technology advancements play a key role in articles dealing with the impact of drones on priv...

Case in Point 2015-2016  

This issue focuses on "The Future of Justice." Technology advancements play a key role in articles dealing with the impact of drones on priv...

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