THE
THIRD BRANCH Two Decades of Service to Judiciary Honored
Newsletter of the Federal Courts
Vol. 38 Number 7 July 2006
House Bill Would Impose Inspector General on Judiciary Citing “disturbing reports that a number of federal judges are continuing to violate ethical rules, or are engaging in judicial misconduct,” See IG Hearing on page 2
New AO Director Begins
Senator Orrin Hatch (R-UT), a long-time friend of the Judiciary, congratulates Leonidas Ralph Mecham on a lifetime of service. Mecham marked his last day as Director of the Administrative Office of the U.S. Courts on June 30, 2006. His contributions to the Judiciary, and in particular to the AO, were recognized with tributes from Hatch; the former chair of the Executive Committee, Judge Wm. Terrell Hodges; and staff of the AO. Mecham was presented with multiple scrapbooks filled with congratulatory letters from federal judges and colleagues, photos of himself with all three of the Chief Justices under whom he has served, and a photo album documenting his years at the AO. On behalf of the American Judicature Society, Dennis C. Hayes presented Mecham with the AJS Distinguished Service Award. The award was created to “recognize significant contributions to the administration of justice and is reserved for those committed and concerned citizens who are willing to work long and hard at a usually thankless task to improve the nation’s courts.”
INSIDE
Legislative Solution Proposed to Lexecon..............................pg. 4 House Subcommittee Won’t Back Rent Waiver...................pg. 5 Mediation in the District Courts . ..........................................pg. 6
July 3, 2006 was the first day for the Administrative Office’s new Director, James C. Duff.
IG Hearing continued from page 1 Representative Howard Coble (RNC) opened a hearing last month on legislation that would establish an Inspector General within the judicial branch. Under H.R. 5219, the Judicial Transparency and Ethics Enhancement Act of 2006, introduced by Representative F. James Sensenbrenner Jr. (R-WI), an independent Inspector General would be appointed by and report directly to the Chief Justice. The IG would conduct investigations of complaints Senator Charles E. Grassley has introduced a companion bill in the Senate, S. 2678. “In my mind,” he told the House subcommittee, “the Judiciary hasn’t done enough to reassure the of judicial misconduct, conduct and public that it is doing all that it can to address what are perceived to be cracks in the system.” supervise audits, detect and prevent waste, fraud, and abuse, and recomciary that creates precedents for Transparency can only make the mend changes in laws or regulations further erosion of the fundamental system better and make our judges governing the judicial branch. constitutional principle of separamore accountable to the people.” Testifying at the hearing were tion of powers.” Rotunda told the subcommittee Senator Charles E. Grassley (R-IA), According to Grassley, who introthat H.R. 5219 “offers modest Professor Ronald Rotunda of the duced a companion bill to H.R. 5219 reforms that will keep our JudiGeorge Mason University School of in the Senate, ever since he chaired ciary independent. . . and will help Law; Professor Arthur Hellman of the Senate Judiciary Subcomkeep our Judiciary accountable. . .” the University of Pittsburgh School mittee on Administrative Oversight He cited examples of IGs in federal of Law; and Professor Charles Geyh and the Courts in the early 1990s, agencies and questioned why it has of the Indiana University School concerns have been raised about taken so long to create an IG for the of Law at Bloomington. The Judicompliance with the judicial ethics courts. “If the federal courts had an cial Conference was not invited to rules and whether the Judiciary can Inspector General,” said Rotunda, testify, but wrote to subcommittee “we would have members more openness and expressing its “It really represents a move away from this century-long people could not strong oppotradition where we’ve entrenched norms enabling the Judiciary assume that judges sition to H.R. to regulate itself, and toward something else, in which we take are above the law.” 5219. regulatory power away from the Judiciary and hand it to an Similarly, Hellman It is the inspector general and, indirectly, we give it to Congress.” supported H.R. 5219, Conference’s but suggested that it position that adequately police itself. be made clear in the proposed statute H.R. 5219 and any other legislation “I truly believe,” he said, “that an that the IG would have no authority creating an IG in the Judicial branch Inspector General is just the right over the substance of judicial deciwould “threaten the independence kind of medicine that the federal sions. He also recommended that an of judicial decision-making, and has Judiciary needs to ensure that it is IG’s responsibilities in misconduct serious implications for the sepacomplying with the ethics rules. . . . proceedings would not begin until ration of powers. Rigorous and The Judiciary’s current self-policing after the chief judge and the circuit effective systems and mechanisms system is just not up to snuff. There judicial council have completed their for audit, review, and investigaare too many questions about how work. Current law would be amended tion currently exist in the Judiciary, conflicts and financial interests to authorize the Judicial Conference to making the legislation duplicative, are reported and how recusal lists review a council’s action in cases intrusive, and unnecessary.” are compiled and kept up-to-date. where the chief judge has dismissed The Conference views the There are too many questions as the complaint and the council has creation of an IG as “an entirely to whether the Judiciary’s current denied review. The IG would carry unnecessary and inappropriate policy . . . is as effective as it can be. out the necessary investigations. imposition of control over the Judi-
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Professor of Law Charles G. Geyh is the author of When Courts & Congress Collide: The Struggle for Control of America’s Judicial System, and the coauthor of the fourth edition of Judicial Conduct and Ethics. He is currently co-reporter to the ABA Joint Commission to Revise the Model Code of Judicial Conduct and he previously served as consultant to the National Commission on Judicial Discipline and Removal.
Hellman also proposed a change in title from Inspector General to the “slightly less overbearing” Special Council to the Judicial Conference and suggested that the Chief Justice might want to appoint a sitting judge to serve as the IG. In his testimony, Geyh noted that while H.R. 5219 has a laudable goal in making the federal Judiciary better accountable for its budget and for the ethical transgressions of judges, the creation of an inspector general would be highly problematic. “[I]nspector general investigations can and likely will be exploited to punish judges for their judicial decisions. . . thereby jeopardizing core judicial independence norms that Congress has respected for well over a century,” he said. He observed that while IGs are commonplace within executive branch agencies, the Judiciary is not an agency—it is an independent branch of government that lacks the powers at the executive branch’s disposal to resist Congressional intrusions into IG investigations.
“I think H.R. 5219 is a little bit troubling,” Geyh said in his oral testimony, “more troubling than the other witnesses find it, because it really represents a move away from this century-long tradition where we’ve entrenched norms enabling the Judiciary to regulate itself, and toward something else, in which we take regulatory power away from the Judiciary and hand it to an inspector general and, indirectly, we give it to Congress.” Geyh urged Congress to wait for the results of the Judicial Conduct and Disability Act Study Committee, chaired by Justice Stephen Breyer, and then work cooperatively with the Judiciary to meet Congress’ remaining concerns. “If the Judiciary is unwilling to reform itself in the teeth of evidence that further reform is necessary,” he said, “that may be the time to consider stronger medicine. But not now.”
Working Judge Turns 99
Judge Wesley E. Brown
Not every federal judge receives birthday wishes from the President and the Chief Justice of the United States, but Judge Wesley E. Brown is, well, extraordinary. On June 22, he took time from his work in the U.S.
District Court for the District of Kansas, to comment about turning 99. “I’ve had more publicity than I deserve,” he told a local newspaper reporter. “I just know I’m still here, and I’m working the best I can. It’s been a challenge. Still is. That’s what makes it enjoyable.” In an earlier interview, Brown told a Wichita television station, “I really don’t want to be known for being a judge at 99. I want to be known as a judge who does his job, and does the best he’s able under the circumstances of his life.” Still, Brown’s birthday was noted in a card from President and Mrs. George W. Bush, and a letter in which Chief Justice John Roberts praised him for “the 60th anniversary of your 39th birthday.” Appointed by President John F. Kennedy in 1962, Brown took senior status rather than retire in 1979, at age 72. As a senior judge, he carries a reduced caseload but still reports to his chambers every week day. (Senior judges account for about 15 percent of the federal courts’ workload. Many of them, comparative youngsters, carry full caseloads.) Chief Judge John W. Lungstrum (D. Kan.) praised Brown, saying, “It is a great honor to serve as his colleague.” “He has tremendous energy and enthusiasm to go along with his wealth of experience and store of good judgment,” Lungstrum said. “He is also a very kind and generous individual with quite a sense of humor, who is well loved by all his colleagues and coworkers. We are very fortunate to have him as the patriarch of our court family.” Flashes of Brown’s humor were displayed in his birthday interviews. He said he was appointed to serve “for life, or for good behavior, whichever I lose first.” And “I’m well aware I’m a little like the guy falling out of the 20th story. As he passed the 10th floor he See Working Judge on page 12
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Legislative Solution Proposed to Lexecon
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Judge Wm. Terrell Hodges (M.D. Fla.), chair of the U.S. Judicial Panel on Multidistrict Litigation (Judicial Panel), last month appeared before a Senate subcommittee to ask Congress to enact the “Multidistrict Litigation Restoration Act.” The bill already has been passed by the House as H.R. 1038. Currently, the multidistrict litigation process established in 28 U.S.C. § 1407 allows civil cases pending in multiple judicial districts involving common questions of fact to be centralized for coordinated or consolidated pretrial proceedings before one “transferee” judge by the Judicial Panel. Transferee judges had used the venue statute for 30 years to transfer these cases for trial purposes as well, until in 1998 the Supreme Court held in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach that such cases must be remanded upon completion of pretrial procedures. “In cases that have been centralized by the Judicial Panel,” Hodges testified, “this legislation will give the transferee judge and the litigants the desirable option of transferring a case to the transferee judge for trial purposes, as was often done for 30 years until the Supreme Court’s Lexecon holding in 1998.” According to Hodges the legislation would benefit both plaintiffs and defendants with substantial savings of time and money. “Parties should not be subjected to the uncertainties, delays, and expense created by unnecessary duplication of litigation or subjected to possible inconsistent adjudications,” he said. Hodges testified on behalf of the Judicial Conference before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts. Judge Thomas W. Thrash, Jr. (N.D. Ga.) also testified in support of the bill at the invitation of the subcommittee. Thrash related an example The Third Branch
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(Photo left to right) Subcommittee chair Senator Jeff Sessions (R-AL), chair of the Judiciary Subcommittee on Administrative Oversight and the Courts, greets Judge Wm. Terrell Hodges (M.D. Fla.) and Judge Thomas W. Thrash Jr., (N.D. Ga.), witnesses at the June hearing on the Multidistrict Litigation Restoration Act.
from his own judicial experience where litigation was unnecessarily prolonged and expensive to the courts and the parties because of Lexecon. The Judicial Conference first asked Congress in September 1998 to amend the multidistrict litigation statute to permit transferee judges to retain certain MDL cases for trial. “This legislation is needed for three primary reasons,” Hodges told the subcommittee. “First the legis-
lation will facilitate settlements in these complex, multi-state cases. Second, it will reduce the needless waste that stems from litigating these cases in multiple jurisdictions, thereby conserving scarce judicial resources and reducing litigants’ expenses. Third, the legislation will directly benefit litigants who will be better served by improving efficiency in the handling of these cases.”
Fiscal Year 2007 Funding Update The Judiciary’s fiscal year 2007 funding bill continues to make progress. On June 14, the House passed the $140 billion Transportation, Treasury, Housing and Urban Development, the Judiciary, District of Columbia appropriations bill, with $6.1 billion for the Judiciary. The Judiciary’s appropriations bill was scheduled for markup by the Senate Appropriations Subcommittee on Transportation, Treasury, the Judiciary, Housing and Urban Development, and Related Agencies on July 18th, followed by a full committee mark-up on July 20th. The Judiciary has requested $6.3 billion in funding for FY 2007.
House Subcommittee Won’t Back Rent Waiver Following up on a hearing on rent relief for the Judiciary last summer, a House subcommittee continued its look into the future of the federal courthouse construction program with a June 2006 hearing. “We are here today,” said Representative Bill Shuster (R-PA), chair of the House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management, “because over a year ago, the Judiciary requested a permanent rent exemption from the Federal Buildings Fund, claiming the rising GSA rent payment was creating a fiscal crisis.” According to the Government Accountability Office (GAO), “the Judiciary’s rental obligations for federally owned and leased space have steadily risen from $780 to $990 million, or 27 percent, from fiscal year 2000 through 2005, after controlling for inflation.” Judge Jane Roth (3rd Cir.), chair of the Judicial Conference Committee on Space and Facilities, testified before the subcommittee, with David Winstead, Commissioner of the General Services Administration’s (GSA) Public Buildings Service, and Mark Goldstein, Director of GAO’s Physical Infrastructure Issues. The House subcommittee concluded a 2005 hearing with the request that GAO look into the Judiciary’s plea for rent relief, and report on the impact a permanent rent exemption would have on the Federal Buildings Fund, possible alternative solutions, how rent payments are calculated by GSA, and how rent increases are planned and accounted for by the Judiciary. GAO’s Goldstein presented the report at last month’s hearing.
Before beginning the June hearing on the Judiciary’s courthouse construction program, Subcommittee Chair Bill Shuster (R-PA) (photo right), welcomed, left to right, GAO’s Mark Goldstein, Judge Jane Roth (3rd Cir.) who testified on behalf of the Judicial Conference, and GSA’s David Winstead.
In his comments during the hearing, Shuster was critical of both the Judiciary and GSA. He criticized GSA for claims of rent bill errors and inaccurate appraisals. “GSA should not be overcharging tenants and if appraisals are inaccurate, they too must be corrected.” He faulted the Judiciary for failing to manage its space requirements and now asking for what he termed “the equivalent of a ‘get out of jail free’ card, with its request for rent relief. “The GAO findings,” said Shuster, “only solidify my, and I believe this committee’s stance, against such a rent waiver. . . .To provide the Judiciary with a rent exemption would be disastrous to the Federal Buildings Fund and the government’s ability to control its real property needs.” According to the GAO report, while about two-thirds of the Judiciary’s $210 million rent increase is attributable to a 19 percent increase in net square footage, the remaining increase is attributable to “disproportionately high increases in security and operating costs.” GAO also found that neither the Judiciary nor the GSA had routinely and compre-
hensively analyzed the factors influencing the rent increases. The report went on to state that, “the Judiciary faces several challenges to managing its rent costs, including costly architectural and structural requirements for modern courthouses, a lack of incentives for efficient space use, and a lack of space allocation criteria for appeals and senior district judges.” The report recommended that the Judiciary begin tracking and analyzing rent trends, establish incentives to encourage local decision-makers to use space efficiently, and improve its space allocation criteria. Roth characterized the GAO report as “seriously flawed,” noting that GAO’s “assessment of the underlying reasons for the Judiciary’s increased rental charges was both insufficient and misleading.” As to the GAO assertion that roughly two-thirds of the increase in the Judiciary’s rental obligations to GSA are attributable to growth in the amount of space, Roth countered that, since 1985, rent has increased 333 percent, even after adjusting for inflation, whereas square footage has See Rent Waiver on page 6 The Third Branch
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Rent Waiver continued from page 5 increased by only 166 percent, which is half that amount. Roth voiced concern that GAO decided what challenges the Judiciary faced, without consulting Judiciary officials with policy-making responsibilities. The report also criticized the Judiciary for inefficient space use without considering future growth and the need for expansion. “By failing to ground its analysis in the mission-related drivers for judicial space,” Roth said, “the GAO conclusions do not address the facilities planning challenges we face.” Roth acknowledged that, despite the Judiciary’s concerns with the report findings, the GAO recommendations “are consistent with efforts we already have underway to control rent costs,” including the imposition of tighter budgetary controls and rent caps on facilities decisions made by circuit judicial councils, and changes to the U.S. Courts Design Guide. Roth told the subcommittee of other Judiciary initiatives to help control and contain space costs. They include a re-tooling of the long-range facilities planning process to introduce life cycle cost-benefit analysis into the evaluation of housing alternatives; comparative analysis of space uses between and among the various circuits and court components; and a rent validation initiative with GSA to ensure the basis of the rent charges in terms of square footage calculations and space classifications are accurate, and that the rent has been properly computed. “We will continue to enhance our facilities planning and management processes,” Roth concluded, “but we still face the situation where mandatory rent payments to GSA have been increasing at a faster rate than the Judiciary’s appropriations increases.”
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In Resolving Disputes, Mediation Most Favored ADR Option in District Courts “Survival. It’s a survival mechanism, a way for us to stay on top of our caseload,” said Sheryl Loesch, clerk of court for the U.S. District Court for the Middle District of Florida. Loesch refers to mediation, the most popular form of alternative dispute resolution (ADR) in the federal district courts. The Middle District of Florida—among the top 10 district courts using mediation— referred more than 1,000 civil cases to mediation in calendar year 2005. More than one-half of the mediated cases settled through the mediation process. “With our caseload and our lack of judgeships, it’s the only way we can handle our workload,” said Loesch. The ADR Act of 1998 requires the district courts to provide ADR services to civil litigants and Recommendation 39 of the Judiciary’s Long Range Plan encourages it. While courts may use arbitration, Early Neutral Evaluation (ENE), settlement conferences, case valuation, summary jury trials, and other forms of ADR, it is mediation that is most consistently favored in the district courts as a way to resolve disputes. In a 2005 preliminary summary conducted by the Federal Judicial Center in 49 district courts, 15,555 cases were referred to mediation out of a total 24,835 cases that went through ADR. Although the definition of mediation can vary widely depending on court, judge, and litigants, the Federal Judicial Center’s Donna Stienstra, in her sourcebook, ADR and Settlement in the Federal District Courts defines mediation as a flexible, nonbinding dispute resolution procedure in which a neutral third party—the mediator— facilitates negotiations between the parties to help them settle. The U.S. District Court for the Northern District of California was
one of the pioneers in the use of ADR. The district has developed a sophisticated, multiple-option system offering a variety of ADR options, including mediation, ENE, nonbinding arbitration, and settlement conferences. “We’re committed to working with our district’s lawyers and parties to find the best ADR option,” said Howard A. Herman, the district’s Director of ADR programs, “but we’ve found that mediation is the most popular. We believe it’s because it’s the most flexible of all the options.” Under Civil Local Rule 16, the district requires that every attorney and client certify that they have read the handbook entitled Dispute Resolution Procedures in the Northern District of California and considered the ADR options. “In our district, we think about success in terms of the way in which ADR satisfies lawyers and litigants— how useful it is to them,” Herman said. Over the last seven years, the court has tracked how participants felt about going through their ADR procedures. Ninety-two percent of the ADR participants responding to a court questionnaire said that mediation was fair, and 96 percent would volunteer appropriate cases again. “It appears,” said Herman, “that attorney and public satisfaction levels with ADR—and mediation in particular—are very high.” Danny Mullis became the first ADR Program Director in the U.S. District Court for the District of South Carolina in 1999; he previously was an attorney who spent many years mediating cases. The District of South Carolina has been among the top five district courts using mediation in each of the last five years. Thanks to court-sponsored mediation programs at federal
and state levels, and ADR courses at South Carolina law schools, mediation has become an integral part of the state’s legal culture. “Our judges recognize the value this option gives to litigants,” said Mullis. “Litigants can save both money and time through the use of mediation. Perhaps most importantly, in mediation litigants retain control over the terms of the resolution.” A local rule requires that in every civil case each party file and serve the ADR Statement and Certification. “In signing that statement and certification,” said Mullis, “counsel is affirming that he or she has discussed the availability of mediation with the client and discussed the advisability and timing of mediation with opposing counsel. If you have a civil case in the District of South Carolina, you will encounter mediation, and before the litigation is concluded, you likely will have discussed mediation with your client, with opposing counsel and with the court.” Mediation is mandatory in the Western District of Washington. Clerk of Court Bruce Rifkin admits this might increase the number of cases referred to mediation, “but it’s not what drives it,” he said. “What drives it is our history and culture. Mediation in our district began in a time when we were short on judges and had a high caseload.” In the early 1980s when the court was struggling with its caseload, then-Chief Judge Walter McGovern went to the local bar association to find ways to address the court’s workload crisis. They told him mediation was the answer. “It was bar-driven,” said Rifkin. “They were the leaders in bringing mediation to our court and the ones who use it successfully. The bar is at the core of training, of recruiting mediators, and of encouraging users
of mediation in our district. What we do in mediation as a district court is not so very different from other courts, but we have the bar’s commitment to participate.” Most civil cases in the U.S. District Court for the Southern District of Florida are referred to mediation, 3,152 cases in 2005. That’s the rule—
literally. Under the district’s local Rule 16.2D, mediation is to occur in every civil case, except for specific types of cases noted in the rule, 60 days prior to trial. The rule defines mediation, the types of cases subject to mediation, procedures to refer a case or claim to mediation, and certification of mediators. “We’re a busy court, and we still have more jury trials, on average, than other district courts,” said Clerk of Court Clarence Maddox (S.D. Fla.). “But in the mid-90s each of our judges had 34 to 40 jury trials per year, well over the national average. I think there was a sense that parties needed to be encouraged to pursue all avenues for reconciliation. Mandatory mediation forces parties
to get together prior to trial.” In the federal courts overall, most of the 60-plus courts that provide mediation as an ADR option don’t mandate participation. Last year, these courts sent anywhere from 2 to over 500 cases to mediation. Recently, the Ninth Circuit Committee on Alternative Dispute Resolution with the Western Justice Center Foundation produced the publication Education Programs on Court-Sponsored ADR: Model Programs and Guide Resources, offering ideas for district court judges and members of the bar on how to organize and implement ADR. The guide addresses a variety of topics, from initiating dialogue among judges, lawyers and clients to understanding the needs of corporate clients, to timing issues and implications for litigants, attorneys and court personnel. For those courts wishing to establish ADR programs or enhance existing programs, on-site consultations are available through the FJC’s Program of Consultations in Dispute Resolution. The program is funded by a grant from the William and Flora Hewlett Foundation to the Federal Judicial Center Foundation. To inquire about a consultation, contact Donna Stienstra (202-502-4081; dstienst@ fjc.gov) or Laural Hooper (202-5024093; lhooper@fjc.gov). A copy of the Consultation Program brochure is available at the FJC’s intranet site.
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THE
JUDICIAL MILESTONES
Appointed: Milan D. Smith, Jr., as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Ninth Circuit, June 30.
Appointed: Charles E. Rendlen III, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Missouri, May 23.
Appointed: Renee Marie Bumb, as U.S. Judge, U.S. District Court for the District of New Jersey, June 15.
Appointed: Jeremiah C. Lynch, as U.S. Magistrate Judge, U.S. District Court for the District of Montana, June 10.
Appointed: Brian M. Cogan, as U.S. Judge, U.S. District Court for the Eastern District of New York, June 12. Appointed: Sean F. Cox, as U.S. Judge, U.S. District Court for the Eastern District of Michigan, June 15. Appointed: Noel Lawrence Hillman, as U.S. Judge, U.S. District Court for the District of New Jersey, June 26. Appointed: Thomas L. Ludington, as U.S. Judge, U.S. District Court for the Eastern District of Michigan, June 30. Appointed: Peter G. Sheridan, as U.S. Judge, U.S. District Court for the District of New Jersey, June 13. Appointed: Frank D. Whitney, as U.S. Judge, U.S. District Court for the Western District of North Carolina, July 5. Appointed: Susan D. Wigenton, as U.S. Judge, U.S. District Court for the District of New Jersey, June 12. Judge Wigenton served as a U.S. Magistrate Judge prior to her elevation. Appointed: Paulette J. Delk, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of Tennessee, July 1. Appointed: David Robert Duncan, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of South Carolina, May 26. Appointed: Robert A. Gordon, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the District of Maryland, June 19.
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Appointed: Michael T. Parker, as U.S. Magistrate Judge, U.S. District Court for the Southern District of Mississippi, May 26. Appointed: Luis Felipe Restrepo, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Pennsylvania, June 14. Elevated: U.S. Judge Robert James Conrad, Jr., to Chief Judge, U.S. District Court for the Western District of North Carolina, succeeding U.S. Judge Richard L. Voorhees, June 3. Elevated: U.S. Judge James F. Holderman, Jr., to Chief Judge, U.S. District Court for the Northern District of Illinois, succeeding U.S. Judge Charles P. Kocoras, July 1. Elevated: U.S. Bankruptcy Judge Patrick M. Flatley, to Chief Judge, U.S. Bankruptcy Court for the Northern District of West Virginia, succeeding U.S. Bankruptcy Judge L. Edward Friend II, May 24. Senior Status: U.S. Judge Dudley H. Bowen, Jr., U.S. District Court for the Southern District of Georgia, June 25. Senior Status: Chief U.S. Judge Charles P. Kocoras, U.S. District Court for the Northern District of Illinois, June 30.
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BRANCH
Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at http://www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond Contributor Dick Carelli PRODUCTION Linda Stanton Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.
JUDICIAL BOXSCORE As of July 1, 2006 Courts of Appeals Vacancies Nominees
16 10
District Courts Vacancies Nominees
29 14
Courts with “Judicial Emergencies” 20
Retirement: U.S. Magistrate Judge Ian H. Levin, U.S. District Court for the Northern District of Illinois, June 30.
For additional July milestones, visit The Third Branch on-line at www.uscourts.gov The Third Branch
THIRD
For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.
F E D E R A L
Ethics Pamphlet Designed for New Judges New federal judges now have a specially designed pamphlet introducing them to judicial ethics. The pamphlet is entitled Ethics Essentials: A Primer for New Judges on Conflicts, Outside Activities, and Other Potential Pitfalls. The pamphlet summarizes essential standards of conduct, answers common questions, and provides examples of situations new judges are likely to encounter. One key subject addressed is judicial disqualification. To assist judges in identifying potential conflicts of interest, the pamphlet includes checklists for financial and other interests. Also addressed is whether to accept an invitation to attend a private educational seminar. The pamphlet describes the factors (set out in Advisory Opinion No. 67) judges should consider before accepting such an invitation. The Codes of Conduct Committee published the pamphlet in May 2006 for distribution to judicial nominees and new appointees. “New judges are inevitably the subject of public attention,” said Judge Gordon Quist (W.D. Mich.), chair of the committee. “The pamphlet is part of an effort to provide ethics education to judges ‘early and often.’ Judges who have been on the bench for a while may also find it a useful refresher.” You can find the pamphlet at: www.uscourts.gov/library/ ethicsessentials.pdf.
C O U R T S
S N A P S H O T
Computer Fraud Cases Filed in the Federal Courts
In fiscal year 2001, 79 computer fraud cases were filed in federal courts. By FY 2005, this number had increased to 104 cases. Federal laws prohibit unauthorized access to any Internet-connected computer with the intent to defraud or obtain anything of value. Also outlawed is the intentional, reckless, or negligent harming of an Internet-linked computer, as are a number of deceptive or fraudulent practices often used in commercial e-mails. Computer fraud case statistics during each 12-month period ending September 30, 2001 through 2005, along with statistics on other criminal cases filed by major offense, can be found in Table D-2 of the Judicial Business of the United States Courts, online at www.uscourts.gov/judbususc/judbus.html.
Candidates for AO Deputy Director Sought The Administrative Office of the U.S. Courts is seeking candidates for the position of Deputy Director, to serve as the deputy chief administrative officer of the federal courts under the direction and supervision of the Director of the AO. The Deputy Director is appointed by the Chief Justice of the United States. Information on the duties and responsibilities, qualifications, and benefits of the position, along with details on how to apply, are available on the Judiciary’s Newsroom website at www.uscourts.gov/news.html. Applications will be accepted no later than close of business on August 1, 2006 via facsimile at (202) 479-3481, e-mail at applications@SC-US.GOV, or via mail to: Vanessa Yarnall Supreme Court of the United States One First Street, N.E. Washington, DC 20543 The federal Judiciary is an equal opportunity employer. The Third Branch
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I N T E R V I E W
A Dialogue with USMS Q: Director John F. Clark A:
What steps has the USMS taken in the last year to enhance judicial security?
John F. Clark, the former U.S. Marshal for the Eastern District of Virginia, was confirmed by the Senate in March 2006 as Director of the U.S. Marshals Service (USMS). Clark has over 20 years of experience as a U.S. Marshal, beginning his career with the USMS as a Deputy United States Marshal in San Francisco, California. He has served in numerous senior management positions within the USMS, including chief of the Internal Affairs Division, chief of the International Fugitive Investigations Division, and acting director of the USMS. Prior to joining the USMS, Clark served with the U.S. Capitol Police and the U.S. Border Patrol.
Q:
Given your long career in the USMS, has the field of judicial security changed over the years?
A:
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There have been many changes. As a young deputy marshal, I was involved in a lot of the protection details, handling a lot of the judicial threats, seeing how they were done, say, in the 1980s. I can remember times when threats on the Judiciary were relatively rare. You would get an occasional angry litigant or prisoner. Of course we’ve had tragedies like [the murder of] Judge Vance and others—which at the time you’d almost think were an anomaly. But the threats have increased. And now you can hardly open a newspaper or watch the news and not see or hear about some threat to a judge, or a U.S. attorney, or a protest. So the dynamics of the judicial protection program have changed. We have had to change to keep pace with the threats. The Third Branch
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It’s really my goal to change how the Marshals service protects the Judiciary, from being less reactive to more proactive in our approach. We need to be ready, as much as we possibly can, to respond. To do that we have brought a couple of working groups together. One of them has to do with how we now approach our handling of judicial threats on the analytical side, the intelligence side, and the investigative side. We want to thoroughly analyze any threats, gather any information or intelligence on that threat, make some sense out of it—try to get inside the mind of a threatener— then provide that in a good solid commonsense approach to our field offices to help them in any investigative action that might be necessary. So we are in many ways overhauling the process. One of the key parts involves a 24-7 Threat Analysis and Intelligence Center. It has long been my belief that we need to have very timely and accurate information that we can give to our field offices. So the 24-7 Threat Center will be able to provide very fast and timely analysis on any threat, at virtually any time of the day or the week, and get that back to our field offices quickly. As we know, in a threat environment, time is of the essence. The clock is literally ticking. Rapid deployment teams are another key component. We want to be fast in getting personnel where they need to be. For example, when someone harms or makes a viable threat to harm a judge or his or her family members, we want to put trained teams in that area as fast as possible to do a couple things: to immediately protect the judge or the family members or whoever needs
USMS Director John F. Clark
protection, and also to relieve our field offices of managing both the crisis and their regular day-to-day duties. Rapid deployment teams, as we see them to be, will be a group of several deputies or court security inspectors who will, when the “fire alarm” rings, be on the ground quickly. They will be on call for a set period of time—perhaps 30 days at a time. We’ll have a back-up team ready as well, so if there’s a secondary incident or there’s a need for additional people, we’ll have that team available. These teams will be fully trained, equipped, ready to be mobilized. So again, the timeliness of our response is very, very critical.
Q:
You’ve also been concerned about judges’ personal information on the Internet. What can you do about that?
A:
That is a huge problem for the safety and security of judges—really for any public official—and this will take Congressional action. There’s nothing the Marshals Service can do, other than to advise judges on how to minimize the information that is out there. And I say minimize because it
is almost impossible to totally erase information about a judge’s background. In the information era we’re in, any time you make a speech, any time you’re quoted in the paper, any time you handle a case that happens to be a newsworthy event—it is somewhere in cyberspace available to anyone with a computer. It will take some Congressional muscle, I believe, to develop ways to minimize the amount of publicly disclosed information about public officials, including judges. We have learned for example that some judges have residential tax records available that show not only where they live, but in some jurisdictions show floor plans, driveways, and aerial pictures. It’s a point of vulnerability.
Q:
Are you asking for additional funding in Fiscal Year 2008 for judicial security?
A:
Yes, we are. And as I have said very publicly, judicial security is and will be a top priority for me. To provide a level of excellent security requires resources. I am calling on the Justice Department, thru the President’s budget and Congress, to support me on that. At this point, I have had a lot of encouragement from the many people to whom I’ve explained what we want to do, including the Administrative Office of the U.S. Courts. The AO has been very supportive. I know Mr. Mecham has written in support of our resource request. We are speaking more strongly and more purposely with one voice. That helps me and, ultimately, the judges.
Q: A:
What can the judges do to help you out?
That’s an important key. The judges should adopt a mindset that we, as their security providers cannot be with them all the time. We cannot enclose them in heavy protection. They should
adopt a mindset to be, number one, very aware of their surroundings, take every opportunity they can to increase their own personal security around their residences—a particular point of vulnerability—but also be aware of their surroundings when they travel. As an agency, we can provide them with any assistance in travel planning, and security surveys for their residences, for example. On the educational front, we have helped to inform judges on ways they can protect themselves. But judges should, as a whole, recognize that they are vulnerable. There are people out there who could harm them. They should, to the fullest extent possible, try to think of protecting themselves.
Q:
Can you tell us about progress on the installation of home security alarm systems in judge’s homes?
A:
We’re making very good progress. There are about 1,700 judges who have asked for a home security alarm system. We have about 100 of them installed. We have over 1,000 of the pre-installment plans completed and the systems waiting for installation. We have embarked on a very aggressive schedule to get them done. There have been a lot of logistical issues that have come into play through the contract and installation in a wide variety of residences throughout the country. To speed the process along, and because that is something we want to get done quickly and done very well, I have brought in project management teams who are focused strictly on the home intrusion alarm project.
Q:
I understand the USMS has formed a working group on technology to improve judicial security. Can you tell us about the group and its goals?
A:
The Technology Working Group has been identified as being key to our success, because we need to deploy the hard technology—the gadgets and gizmos, you might call them—into the field in a way that makes sense. We’re going to regionalize the deployment of our hard technology. Six regional technical operations centers are already in existence. By the way, I have taken Judge David Sentelle (D.C.Cir.), [chair of the Judicial Conference Committee on Judicial Security] to visit one and he would like to take the entire committee to visit our Houston site. Our 24-7 threat center will be joining that process. We want to collect, analyze, and bring into one place as much as data as we can possibly, including some that is in the intelligence world. Part of the technology, for example, is collecting state and local data. We need to work on that, because many state and local jurisdictions already have great databases. The technology is meant to complement and enhance all of the other proactive things we’re doing, so that when the fire alarm rings we’ll have all the tools in the toolbox ready to be deployed.
Q:
How do you interact with the Judicial Conference Committee on Judicial Security?
A:
We’ve developed a very close bond with the Committee and have met quite regularly. My first meeting with them was last January, but the work with the Committee really began a few weeks after I took over as the acting director last summer. I’m pleased to say that one of my very first meetings in my official capacity was with the Committee and with Mr. Mecham and Judge Sentelle. I pledged—and I feel I’ve kept my pledge—to work very closely with them. See Interview on page 12 The Third Branch
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Working Judge continued from page 3 said ‘I’m alright so far.’” Brown also recounted a conversation he had shortly after joining the bench, in which he sought advice from an older colleague. “I said, ‘How do you get used to wearing the robe.’ He said, “You find out it’s just like your underwear. After awhile, you can’t get along without it.’” The jocular judge takes his job, and his patriotism, very seriously. “I’ve never thought of my position as one of power. It’s one of obligation,” he said. “I’m here as a beneficiary of so many who have done so much. I owe them a great obligation, to be worthy of their trust.”. At a recent naturalization ceremony in his courtroom, Brown told the gathered new U.S. citizens that their status “gives you the challenge to seek the truth in your country, the truth that will keep you free.” Asked about America’s future, Brown responded, “Don’t sell it short.”
Interview continued from page 11
Q: A:
What is your vision for the USMS?
My vision for the U.S. Marshals Service is to make an organization of excellence in everything we do, no matter what program area, or what the issue. I have been preaching about doing everything in excellence, from our paperwork to any operational assignment that we complete. As it relates specifically to judicial protection, I want to build a judicial security program that has been not only overhauled and built to a point of excellence, but that will survive the next eight to 10 years in providing first class judicial protection to the judges. I’m working through that now. It takes time in the governmental process, but I’m very confident that the things we’re doing and are about to do here will provide a great level of security for the judges. That’s my goal, in as simple terms as I can make it.
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Q: A:
Is there anything you’d like to tell federal judges?
When I speak to groups of judges, I tell them they have my full support, and that all of my ability will be poured into this particular part of my responsibilities, to make our judicial security program one of excellence. Around the country, I’ve received a great deal of encouragement. I guess what I would say to judges is “I need your support, because I know this is critical. And I appreciate your encouragement along the way.”
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