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THE

THIRD BRANCH

Newsletter of the Federal Courts

Vol. 41 Number 7 July 2009

Congress acts on ‘09, ‘10 Funding In June, a bill with supplemental funding for the Judiciary was signed by the President, while in July the federal courts’ fiscal year 2010 appropriation was marked up in the House and the Senate. Judge Barbara M. G. Lynn (N.D. Tex.), chair of the Judicial Conference Committee on the Administration of the Bankruptcy System, told Congress that the need for new bankruptcy judgeships is critical. Testifying with her were Bankruptcy Judge David S. Kennedy (W.D. Tenn.) of the National Conference of Bankruptcy Judges, GAO’s William Jenkins, Jr.; and Cary D. Ebert of the National Association of Consumer Bankruptcy Attorneys.

Congress Urged to Add Bankruptcy Judgeships as Courts Face Near-Record Case Levels The federal courts need additional bankruptcy judgeships in the face of near-record case levels to alleviate overcrowded dockets and to assure that the bankruptcy system operates efficiently, Judge Barbara M. G. Lynn (N.D Tex.) told a House subcommittee last month. Lynn is chair of the Judicial Conference Committee on the Administration of the Bankruptcy System. In June, she appeared before the House Judiciary Subcommittee on Commercial and Administrative Law in support of the Judicial

INSIDE

Conference’s 2009 bankruptcy judgeship recommendations. “Our judicial resources are strained,” Lynn said. “And the cost to society of an overburdened bankruptcy system, especially in this economic climate, is enormous.” The Judicial Conference recommends 13 additional permanent bankruptcy judgeships in 10 judicial districts, the conversion of 22 existing temporary bankruptcy judgeships to permanent in 15 judicial districts, and the See Bankruptcy on page 2

Time To Prepare Together . .............................................................pg. 4 JERS and Juries ................................................................................pg. 5 Concerns on Courthouse Projects .................................................pg. 6

Action on FY 2010 Funding Both the House and Senate Appropriations Committees reported their versions of the FY 2010 Financial Services and General Government Appropriations Bill in early July, which includes funding for the Judiciary. The House bill gives the Judiciary $6.941 billion in FY 2010, a 6.9 percent increase in funding over FY 2009. The House level supports the Judiciary’s See Funding on page 3

INTERVIEW

Interpreting the Code Judge M. Margaret McKeown (9th Cir.) chairs a committee she calls the “Dear Abby Committee,” annually receiving hundreds of requests for advice from judges and court staff. Here’s how she and her fellow committee members respond. See Interview on page 10


2009 Bankruptcy Judgeship Recommendations of the Judicial Conference

Bankruptcy continued from page 1

Total Current Bankruptcy Judgeships

Recommended Bankruptcy Judgeships

1P,* 1T**

convert 1T to P

Northern District of New York

2P, 1T

convert 1T to P

Southern District of New York

9P, 1T

convert 1T to P

Delaware

1P, 5T

convert 5T to P

New Jersey

8P, 1T

convert 1T to P

Eastern District of Pennsylvania

5P, 1T

extend 1T by 5 years

Middle District of Pennsylvania

2P, 1T

convert 1T to P

Maryland

4P, 3T

convert 3T to P

Eastern District of North Carolina

2P, 1T

convert 1T to P

Middle District of North Carolina

2P, 1T

extend 1T by 5 years

2P

add 1P

5P, 1T

convert 1T to P

Southern District of West Virginia

1P

add 1P

Northern District of Mississippi

1P

add 1P

Eastern District of Michigan

4P, 1T

add 3P

Eastern District of Tennessee

3P, 1T

convert 1T to P

Western District of Tennessee

4P, 1T

convert 1T to P

3P

add 1P

Eastern District of California

6P, 1T

add 1P and convert 1T to P

Nevada

3P, 1T

add 1P and convert 1T to P

Middle District of Florida

8P

add 1P

Northern District of Florida

1P

add 1P

Southern District of Florida

5P, 2T

convert 2T to P

Northern District of Georgia

8P

add 2P

Southern District of Georgia

2P, 1T

convert 1T to P

Bankruptcy District New Hampshire

Western District of North Carolina Eastern District of Virginia

Eastern & Western Districts of Arkansas

*Permanent Judgeship, **Temporary Judgeship

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extension of two existing temporary bankruptcy judgeships for five years. “The need for these judgeships is critical,” said Lynn, “with filings increasing to near-record levels and the bankruptcy courts in peril of losing many of their judicial resources. It is time to pass judgeship legislation to alleviate the overcrowded dockets and assure that the bankruptcy system operates efficiently, especially in our current economic circumstances.” There was bipartisan support for additional bankruptcy judgeships from many members of the subcommittee chaired by Representative Stephen Cohen (D-TN). Bankruptcy Judge David S. Kennedy (W.D. Tenn.) testified at the hearing on behalf of the National Conference of Bankruptcy Judges, and attorney Cary D. Ebert appeared on behalf of the National Association of Consumer Bankruptcy Attorneys. Both Kennedy and Ebert supported the need for new bankruptcy judges. The fourth witness at the hearing, William Jenkins, Jr., Director of Homeland Security and Justice Issues, Government Accountability Office (GAO), discussed GAO’s review and assessment of the case weight formula for bankruptcy courts. New bankruptcy judgeships were last authorized in 2005 as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). All of those judgeships were temporary. Prior to that, new bankruptcy judgeships were authorized by Congress in 1992. Case filings have increased steadily since the first year after BAPCPA took effect. In the 12-month period ending March 31, 2008, there were


approximately 1.2 million bankruptcy petitions filed—nearly double the number of petitions filed in 2006. Weighted filings per authorized judgeship also have seen significant increases. From 2006 to 2007, the national average weighted filings per authorized judgeship increased 16 percent, and from 2007 to 2008, the average increased a further 27 percent. As of the end of March 2009, the national average weighted filings per authorized judgeship stood nearly 60 percent higher than the first year following BAPCPA. It is Judicial Conference policy that, in addition to other judicial duties, a bankruptcy court should have a workload of 1,500 or more annual case-weighted filings per judgeship to justify an additional judgeship. The nature and mix of the court’s caseload; historical filing trends; geographic, economic, and demographic factors in the district;

use of alternative solutions; and effectiveness of case management efforts also are considered. “Bankruptcy judgeships are filled only when there is a workload need,” Lynn told the subcommittee. “In addition, before recommending judgeship actions, the Conference examines whether courts are using alternative means of maximizing their existing judicial resources.” But some districts, such as the Eastern District of Michigan, are overwhelmed by ever-increasing caseloads, according to Lynn, and have shown a sustained need for additional judgeships. Additional judicial resources have been recommended for the Eastern District of Michigan since 1993. “We share a common interest in ensuring that the bankruptcy court system has adequate judicial resources to manage its caseloads in a just, economical, and timely

manner,” Lynn said. “A near-record level of cases is pending in our bankruptcy courts, and the case filings continue to increase. Many of the districts for which additional bankruptcy judgeships are sought have had overwhelming filings for years … Although the Judiciary has developed creative and innovative techniques to fully utilize its existing judgeships, the bankruptcy courts can no longer operate as effectively in some districts because of the heavy workload.” She urged the subcommittee to support the Judicial Conference bankruptcy judgeship recommendations. Read Lynn’s complete testimony at www.uscourts.gov/Press_ Releases/2009/Testimonyof JudgeBarbaraLynn.pdf. Complete hearing testimony for all witnesses can be found on the House Judiciary’s website at http://judiciary.house.gov/ hearings/hear_090616.html.

Funding continued from page 1

Supplemental Funding in War Bill

workload-rated increases, as well as an hourly panel attorney rate of $139. The Senate bill includes $6.929 billion for the Judiciary, a 6.7 percent funding increase over FY 2009, with an hourly panel attorney rate of $115 per hour. The Judiciary’s re-estimated FY 2010 funding request to Congress was $6.948 billion. “Both the House and Senate funding recommendations should be sufficient to allow courts to fund fully current on-board staff in FY 2010,” said Administrative Office Director Jim Duff, who anticipated that funding levels also should allow for staffing increases for those courts experiencing a growing caseload. The full House was expected to consider its version of the Financial Services and General Government Appropriations Bill in mid-July, while the Senate may not act on its bill until shortly before the August recess.

The Fiscal Year 2009 War Supplemental Appropriations Bill became Pub. L. 111-32 on June 24, 2009. The Act funded additional law enforcement and U.S. Attorney resources. Recognizing that additional immigration and law enforcement initiatives would affect the courts’ workload, the Judiciary requested and was provided with $10 million in emergency supplemental funding to address the needs of the courts, defender services, fees of jurors and court security. Duff also had requested that Congress consider additional funds for the U.S. Marshals Service (USMS), specifically $4 million to address the need to enhance the personal security of judges along the southwest border. Escalating drug cartel violence along the MexicoU.S. border and concerns about the personal safety of federal judges prompted the request. Supplemental

funds are requested for the USMS to develop a security response plan for judges away from the courthouse. (See the May 2009 Third Branch newsletter, “Briefing Addresses Spillover Violence Along Border.”) The USMS Judicial Security Division and the AO will cooperatively develop a spending plan for the funds.

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Time to Prepare Together A two-day conference last month in Indianapolis taught lessons that apply to all federal courts—and their sister federal and state government agencies across the country. The conference’s message was: plan for emergencies. Its objective was: plan together. “When a fire strikes, or the flood waters rise, or a more virulent strain of the flu hits,” a federal judge told participants, “you, your co-workers and the community will be glad you took the time to be prepared.” Law enforcement and public health officials, staff and judges from the federal and state courts, state and national records managers, local hospital administrators, representatives from the Centers for Disease Control and Prevention, Homeland Security, the Federal Emergency Management Agency, and the Indianapolis Federal Executive Association met in a Cross-Sector Coordination Planning Conference, June 25-26, 2009, in Indianapolis. The conference title underscored their goal: to reach out and work with other agencies in planning and preparing for emergencies. Judge John Tinder (7th Cir.), in his welcome to conference participants, said, “There is more to emergency readiness than just looking inward at your organization. The best plans also include connections to outside agencies that will help you respond and recover from a disaster; this is the cross-sector preparedness portion of this conference, and will perhaps be the most important step you take as you go forward in your planning.” The U.S. District Court for the Southern District of Indiana and the Administrative Office’s Judiciary Emergency Preparedness Office (JEPO) played a pivotal role

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“…You, your co-workers and the community will be glad you took the time to be prepared.” in organizing the conference and in sharing their own experience in emergency planning. The conference brought together all the individuals with responsibility for emergency planning in a community—at federal, state and local levels, according to George Huff, AO-JEPO, a conference organizer. “The goal was to close the gaps between all the respective agencies,” Huff said. “The program was designed to prompt the conferees to consider the significance of assessing all-hazards emergency preparedness and operational continuity planning. Participants were encouraged to develop a framework of collaboration that cuts across sectors and jurisdictions.”

All federal court units are urged to have Continuity of Operations (COOP) plans in place. Templates to help them outline strategies and plans for the continuation of essential functions, the delegation of authority, alternate work sites, and recovery are available and can be customized to each court’s particular needs. Laura Briggs, clerk of court for the U.S. District Court for the Southern District of Indiana, spoke at the conference on one of the elements of a viable continuity plan: succession planning. “Organizations must have specific orders of succession for their offices that have COOP assignments,” Briggs said, “because, during an emergency, officials who may have authority to execute essential functions may be unavailable or inaccessible.” She advised that the orders of succession documentation and the agency’s continuity plan be part of the court’s vital records—those records essential to maintaining the function of the court. The Southern District of Indiana makes copies

Does Your Court COOP Plan: n Identify all essential activities and functions? n Identify and protect vital records, systems, and equipment? n Determine succession and delegations of authority? n Identify and prepare alternate work sites? n Identify and train a team of employees to perform essential activities in an emergency? n Establish a system to warn employees, visitors, and the public of potential threats and tell them what to do in an emergency? n Set up ways to determine the location and status of employees following an emergency? n Identify ways to communicate with employees, visitors, and the public after an emergency? n Develop a system for restoring normal court functions as soon as practicable? n Establish regular training in emergency procedures?


JERS and Juries The jury was at an impasse. Unable to agree on certain details in the case, jurors argued back and forth, getting nowhere—until they projected a key exhibit in the case on a screen in the jury deliberation room and discussed it as a group. Their verdict quickly followed. “The big difference was that they were able to do it as a group, and talk about the issue collectively,” said Chief Judge Robert Conrad (W.D. NC). “They were able to do that because of our district’s Jury Evidence Recording System, or JERS.” JERS is Conrad’s innovation, a system developed by the U.S. District Court for the Western District of North Carolina that electronically captures exhibits as they are presented in a court proceeding, and then makes them accessible at a touch of a button to jurors as they deliberate. Usually, jurors must request an exhibit, then return to the courtroom to view it, if it’s a

surveillance tape or videotape, or pass exhibits among themselves, viewing them individually. They’d then return to the jury room to continue their deliberation. Precious time is wasted. Seeing how effective and efficient electronic courtroom presentations were, Conrad wondered why that technology couldn’t be applied to exhibits. “It was cumbersome to have the jury coming in and out to handle exhibits,” he said. “Why couldn’t we take what we’re doing in the electronic courtroom and put it in the jury room. Our IT people, the clerk’s office, my law clerks, all put our heads together and the outcome was JERS.” With JERS, when the parties in a case present evidence it is either captured electronically through the evidence presentation system or it is given directly to the clerk on a CD or flash drive. An exhibit file is created within JERS with a brief description of the content. The JERS system not only creates a log of exhibits and jury

of the court’s continuity plan part of individual Go-kits. The district’s continuity plan includes contact information for everyone named in order of succession, as well as the names and contact information for all key players of critical related agencies, such as the U.S. Attorney’s Office, the U.S. Marshals Service (USMS), Probation and Pretrial Services Office, and the Federal Defenders Office. The conference program covered much of what the Judiciary values in a good COOP plan (see Box on page 4), with an emphasis on establishing a framework for cross-sector coordination. To improve the local bar’s awareness of its court’s continuity plans, attorneys attending the Indianapolis conference were approved for Continuing Legal Education credits.

Tinder told participants that the courts routinely include the USMS, the U.S. Attorney’s Office and the Federal Community Defenders Office in their emergency plan. But the courts also reach beyond other federal agencies and work with county and state emergency management agencies, local and state bar associations, and local law enforcement. “Making connections with outside agencies ahead of a disaster puts you at an advantage during a disaster,” Tinder told conference participants. “Cross-sector preparedness facilitates better communication, the establishment of memoranda of understanding or agreement, and an overall more robust plan which enables you to know who to turn to for help, for answers, and for support,” he said.

instructions, it can export all the information on a CD or flash drive. The court and the parties in the case may review the captured exhibit to ensure its accuracy and completeness. According to Conrad, the courtroom deputy plays a vital role in assuring the success of the JERS system, making sure the correct exhibit is captured, that the exhibit has been properly identified, and that the exhibit is available for the jury to review. “Though I and the attorneys always review and confirm that the proper exhibits are sent to the jury, the courtroom deputy is the gatekeeper and must capture the exhibits in the first place,” Conrad said. “Our courtroom deputies have found JERS to be easy to use and very exciting to operate during a trial. They take pride in providing the jurors, counsel and me with a more efficient and professional system to review exhibits during deliberations.” When the jurors begin their deliberations, they can access the exhibits—and even the jury instructions, if the judge so chooses—on a touch-screen kiosk, similar to the self-service kiosks found in airports, grocery stores, and other public areas. All jurors can view the evidence at the same time on a projection screen, replay and rewind tapes, scroll through documents page by page, and even zoom in and out on photographs. They can view the information repeatedly. While the access to exhibits is easy, jurors aren’t inundated with information. In the Western District of North Carolina, when the jurors wish to see an exhibit, they still need to make the request for the exhibit. They just don’t have to leave the jury room to receive the information. The court electronically provides any exhibit they request. “In a recent trial, the jurors requested two videotapes and See JERS and Juries on page 9

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Judiciary Expresses Concerns On Courthouse Projects The new courthouse construction projects on the Judiciary’s Five-Year Courthouse Project Plan are carefully assessed and ranked, yet the projects were passed over in the President’s fiscal year 2010 budget request, according to a representative of the Judicial Conference who testified in June in the Senate. Chief Judge Joseph Bataillon (D. Neb.), chair of the Judicial Conference Committee on Space and Facilities, appeared before the Senate Appropriations Subcommittee on Financial Services and General Government to express the Judiciary’s concerns that the projects on the Judiciary’s FiveYear Courthouse Project Plan were overlooked. According to Bataillon, that omission may delay by at least a year the Judiciary’s 2010 courthouse projects and all projects in subsequent years. Bataillon also noted that projects previously intended as privatelyfinanced buildings have been re-directed to the federally-owned building path. “The Judiciary was not consulted prior to this change in execution strategy,” he said, adding that the re-direction comes “apparently at the expense of projects on our FiveYear Plan.” GSA Acting Administrator Paul F. Prouty also testified before the subcommittee on the GSA’s FY 2010 budget request, which includes $53 million for U.S. courthouse projects in Lancaster, Pennsylvania and Yuma, Arizona. As privatelyfinanced projects, they were not on the Judiciary’s Five-Year Plan. Bataillon described for the subcommittee the process and

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In Senate hearings last month, Chief Judge Joseph Bataillon (D. Neb.), chair of the Judicial Conference Committee on Space and Facilities, described the advantages for the Judiciary of privately-financed courthouse projects.

criteria used to develop the Judiciary’s Five-Year Courthouse Project Plan. The Plan itself is a key part of the Judiciary’s long-range facilities planning process. “The Plan consists of an ordinally-ranked list of new courthouse construction projects for which the Judiciary is requesting authorization, funding, and execution from the Executive and Legislative Branches,” he said. The projects were evaluated by the Judicial Conference and its Space and Facilities Committee and placed on the Plan on the basis of year out of space (weighted 30 percent), security concerns (30 percent), operational concerns (25 percent), and judges without courtrooms (15 percent). Cost containment is critical to the Judiciary’s future ability to pay rent and personnel costs and, over the last four years, the Judiciary has undertaken several cost-containment initiatives that affect its space and facilities needs. Key components of these initiatives are revisions made to the courthouse planning process, which now place greater emphasis on building capacity—as opposed to building condition—when determining need. Privately-financed

leased court buildings, Bataillon told the subcommittee, have never been placed on the Five-Year Plan, although Judicial Conference policy is that each such project is subject to approval by both the Space and Facilities Committee and the Judicial Conference, and if approved, it is with a specific dollar rent cap. “We now understand that the Office of Management and Budget has raised objections to privately-financed, leased buildings, even for modest project scopes,” Bataillon said. The loss of this construction alternative means the Judiciary would need to revisit its courthouse prioritization method. “However, the Judiciary urges the subcommittee to support retaining lease-construction as a legitimate, valuable, and appropriate alternative strategy to federal construction, especially in locales where the court space need is modest, acute, and of possible indeterminate duration.” According to Bataillon, the privately financed projects can be delivered “in a fraction of the time that it takes the government


Institute Teaches Teachers About History of Federal Judiciary The fourth annual teachers institute conducted by the Federal Judicial Center (FJC) and the American Bar Association Division for Public Education was held in Washington, D.C. in June. Twenty history teachers selected from applicants across the country participated in the week-long 2009 program. The annual institute encourages teachers to incorporate information about the history of the federal court system into their own curricula and share what they learn with their peers. This year, teachers in the institute met with federal judges, scholars, and curriculum experts, who helped them delve into three historic federal cases. They also visited the U.S. District Court for the District of Columbia,

to construct a federal courthouse.” The expedited delivery would have benefited a critically needed facility in Yuma, Arizona. GSA had already begun the procurement process of preparing solicitations for offers, when the procurement strategy was changed to the federal-construct path. Bataillon told the subcommittee that, from Judiciary project approval to completed construction, the privately-financed alternative takes approximately three years; the federal construction alternative takes about 10 years. Read Judge Bataillon’s complete testimony at: www.uscourts.gov/ Press_Releases/2009/TestimonyOf JudgeJosephBataillon.pdf. The testimony of GSA’s Paul Prouty is available at: http:// appropriations.senate.gov/ hearings.cfm?s=fsg.

where they observed federal court proceedings and where Chief Judge Royce Lamberth answered questions about the federal court system. A highlight of the week was a visit and tour of the U.S. Supreme Court, where they were welcomed by Justice Ruth Bader Ginsburg (photo center, above).

For information on the FJC’s Teaching Judicial History project, including historic federal trials and great debates, visit www.fjc.gov/ history/home.nsf. Talking points on federal judicial history also can be found at the website.

2009 Director’s Leadership Program Residents Selected

national initiatives and highpriority projects affecting the federal courts. Crews will assist in the national implementation of a facility access card program; Dunn will assess potential enhancements to the Judiciary’s public access services; Lantin will help revise an essential publication of the bankruptcy courts; and Theophile will help develop a pretrial services outcome measurement system and raise awareness of the costs of pretrial detention. The Director’s Leadership Program was established to foster a greater sense of awareness and understanding of AO/court operations and is intended to involve senior and mid-level court staff in national initiatives. Residents gain insight into the issues facing the Judiciary, as well as an appreciation of the nature of judicial administration at the national level.

Four Judiciary court staff from around the country will work in Washington, DC, over the next six to 12 months as residents in the Director’s Leadership Program. The new program residents are David Crews, clerk of court for the U.S. District Court, Northern District of Mississippi; Terence Dunn, clerk of court for the U.S. Bankruptcy Court, District of Oregon; Vanessa Lantin, law clerk for Judge David Stewart Kennedy, U.S. Bankruptcy Court, Western District of Tennessee; and Allyson Theophile, supervisory pretrial services officer for the U.S. District Court, Central District of California. All four residents will work at the Administrative Office on

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JUDICIAL MILESTONES Appointed: David T. Bristow, as U.S. Magistrate Judge, U.S. District Court for the Central District of California, June 25. Appointed: Andrew L. Carter, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of New York, June 29. Appointed: Charmiane G. Claxton, as U.S. Magistrate Judge, U.S. District Court for the Western District of Tennessee, June 1. Appointed: Ronald G. Morgan, as U.S. Magistrate Judge, United States District Court for the Southern District of Texas, May 3. Appointed: Katherine P. Nelson, as U.S. Magistrate Judge, U.S. District Court for the Southern District of Alabama, June 4. Appointed: Gregory B. Wormuth, as U.S. Magistrate Judge, U.S. District Court for the District of New Mexico, May 18. Elevated: U.S. District Judge Robert G. James, to Chief Judge, U.S. District Court for the Western District of Louisiana, succeeding U.S. District Judge Richard T. Haik, May 31. Elevated: U.S. District Judge Stephan P. Mickle, to Chief Judge, U.S. District Court for the Northern District of Florida, succeeding U.S. District Judge Robert L. Hinkle, June 17. Elevated: U.S. District Judge Susan Oki Mollway, to Chief Judge, U.S. District Court for the District of Hawaii, succeeding U.S. District Judge Helen W. Gillmor, July 1. Elevated: U.S. District Judge Loretta A. Preska, to Chief Judge, U.S. District Court for the Southern District of New York, succeeding U.S. District Judge Kimba M. Wood, June 2. Elevated: U.S. Bankruptcy Judge Phillip J. Shefferly, to Chief Judge, U.S. Bankruptcy Court for the Eastern District of Michigan succeeding U.S. Bankruptcy Judge Steven W. Rhodes, April 25.

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THE

Elevated: U.S. Bankruptcy Judge James S. Starzynski, to Chief Judge, U.S. Bankruptcy Court for the District of New Mexico, succeeding U.S. Bankruptcy Judge Mark B. McFeeley, May 7. Senior Status: U.S. District Judge Anita B. Brody, U.S. District Court for the Eastern District of Pennsylvania, June 8.

THIRD BRANCH Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at www.uscourts.gov

Senior Status: U.S. District Judge Maxine M. Chesney, U.S. District Court for the Northern District of California, June 30.

DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers

Senior Status: U.S. District Judge Peter C. Economus, U.S. District Court for the Northern District of Ohio, July 3.

MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc.

Senior Status: U.S. District Judge George P. Kazen, U.S. District Court for the Southern District of Texas, May 31. Senior Status: U.S. District Judge Larry J. McKinney, U.S. District Court for the Southern District of Indiana, July 4. Senior Status: U.S. District Judge Robert H. Whaley, U.S. District Court for the Eastern District of Washington, July 12. Retired: U.S. Bankruptcy Judge William L. Edmonds, U.S. Bankruptcy Court for the Northern District of Iowa, May 31. Retired: U.S. Bankruptcy Judge Adlai S. Hardin, U.S. Bankruptcy Court for the Southern District of New York, May 1. Retired: U.S. Magistrate Judge William M. Wunderlich, U.S. District Court for the Eastern District of California, June 1. Deceased: U.S. Senior Judge Andrew W. Bogue, U.S. District Court for the District of South Dakota, June 10.

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, 2009 Courts of Appeals

Vacancies Nominees

15 5

District Courts

Vacancies Nominees

Courts with “Judicial Emergencies”

Deceased: U.S. Senior Judge James B. Moran, U.S. District Court for the Northern District of Illinois, April 21. Up-to-date information on judicial vacancies is available at http://www. uscourts.gov/judicialvac.html

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Internet Materials in Opinions: Citations and Hyperlinking The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period. The Internet often seems to pervade everyday life, giving us answers, matches, recommendations, definitions, and citations. But the information on the Internet can be as ephemeral as yesterday’s blog entry. Websites can change or disappear altogether. “Judges are citing to and using Internet-based information in their opinions with increasing frequency,” Judicial Conference Secretary Jim Duff wrote recently to chief judges. “Unlike printed authority, Internet information is

JERS and Juries continued from page 5 a notebook with drug ledger entries,” Conrad recalls. “After notifying the attorneys in the case, we pushed a button and sent the exhibits to the jurors electronically. A little while later, they wanted to hear the instructions I’d given them on possession and aiding and abetting. The instructions also were sent electronically.” Is JERS speeding jury deliberations? “We had a very complicated, multi-count drug conspiracy trial not long ago,” Conrad said. “The jurors were focused the entire time on the case. They didn’t have to troop

often not maintained at a permanent location, and a cited webpage can be changed or deleted at any time. Obviously, this has significant implications for the reliability of citations in court opinions.” The Judicial Conference Committee on Court Administration and Case Management (CACM) began the pilot project, conducted by circuit libraries, and received and endorsed the recommendations of an ad hoc working group of circuit librarians. In approving those recommendations in March 2009, the Judicial Conference agreed that all Internet materials cited in final opinions be considered for preservation, while each judge should retain the discretion to decide whether the specific cited resource should be captured and preserved. The Conference directed the Administrative Office to work with the CACM Committee to develop guidelines “to assist judges in making the determination of which citations to preserve.” The guidelines suggest that, if a webpage is cited, chambers staff preserve the citation by downloading a copy of the site’s page and

filing it as an attachment to the judicial opinion in the Judiciary’s Case Management/Electronic Case Files System. The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system. When considering whether to cite Internet sources, judges are reminded that some litigants, particularly pro se litigants, may not have access to a computer. The Judicial Conference also recommended that the Judiciary avoid including in final opinions working hyperlinks that lead directly to materials contained within commercial vendor databases to prevent a stated or implied endorsement or preferential treatment. To the extent that a court determines that such hyperlinks are to be used in opinions, it is recommended that an appropriate disclaimer be provided.

in and out of the courtroom to view exhibits. The case was decided in about two hours.” Conrad feels JERS also is a benefit when a case reaches the appellate stage. Attorneys have access to the exhibits in preparing their briefs, and the appellate court has access to the actual trial exhibits with a couple of clicks of a mouse. In the Western District of North Carolina, all the courtrooms in the Charlotte courthouse are equipped with JERS. All judges have seen a JERS demo and according to Conrad, most are using it. The district’s Asheville and Statesville courthouses are in the process of setting up the system. In JERS’ first venture out of the district, the U.S. District Court

for the Middle District of Pennsylvania has agreed to be a pilot court for the system. “We asked jurors about the JERS system and received really positive feedback,” said Conrad. “I think jurors who’ve grown up in an electronic age tend to expect this type of access. And I’ve been really pleased with the enthusiasm with which attorneys in the district have embraced this technology. They seem to enjoy and appreciate its benefits.” For more information on the JERS system in the Western District of North Carolina, courts can visit http://jers.ncwd.circ4.dcn/ JERSIntroductoryVideo.htm to view an introductory video.

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I N T E R V I E W continued from page 1

An Interview with Judge M. Margaret McKeown (9th Cir.)

Deyling, and his colleagues in the AO’s General Counsel Office, handle many of the calls. We receive about 500-600 informal requests every year. Brief summaries of our letter opinions are included in the Compendium.

Judge M. Margaret McKeown was appointed to the U.S. Court of Appeals for the Ninth Circuit in 1998. A member of the Judicial Conference Committee on Codes of Conduct since 2001, she was named chair in 2008. She also represented the federal Judiciary as a member of the ABA Commission that, in 2007, issued the revised ABA Model Code of Judicial Conduct.

Q:

Would you tell us about the scope of the work of the Judicial Conference Committee on Codes of Conduct?

A:

Our primary role is to be an ethics service center and sounding board for judges and judicial employees. The Committee interprets the Codes of Conduct for judges, judicial employees, and federal defenders. The Committee also drafts and interprets the regulations on gifts and outside earned income and honoraria. We are the go-to committee for developing ethics policy for the Judiciary, although we are not involved in developing disciplinary policies related to misconduct. Our goal is to make sure that the ethics guidelines for judges and employees effectively protect the integrity of the Judiciary, but do so in a reasonable fashion that does not impose unnecessary restrictions. The key project this year has been to finalize revisions to the Code of Conduct for United States Judges. The revised Code was adopted by the Judicial Conference in March and became effective on July 1. We rolled it out on the J-Net in a complete package, with the new Code, a

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Q:

As the chair, what are your objectives and goals for the Committee?

A: Judge M. Margaret McKeown (9th Cir.)

revised Compendium of Selected Opinions, and a revised set of approximately 100 revised advisory opinions that are consistent with the new Code.

Q:

What is the process for getting an opinion from the Committee?

A:

We try to provide timely and thoughtful ethics advice to individual judges and employees. For example, if a judge asks a question and requests a formal response, the judge will receive a confidential letter opinion within three weeks at most. If a judge needs an expedited opinion, we can do that. We’ve even responded overnight in an urgent situation. During the past year, we issued over 100 letter opinions. All of the letter opinions are confidential, as is all of our advice. Judges and employees can also call or e-mail us for an informal opinion. We usually can provide an informal response on the spot or with some minimal additional research. I personally field several hundred calls a year from judges, clerks, and employees; the other 14 Committee members also respond to many inquiries. In addition, our Committee counsel, Robert

My main goal is for the Committee to be responsive to the Judiciary’s ethics needs and to serve as an early alert system for emerging issues. That means continuing to respond in a timely manner to questions from individual judges and employees, providing clear and useful guidance, and stepping up our training and education efforts. For example, after Congress passed legislation restricting judges’ honorary memberships in clubs, we answered many inquiries on an individual basis, then quickly converted our advice into our newest advisory opinion, Advisory Opinion No. 47. Similarly, when an issue emerged in early spring 2009 regarding the propriety of judges hiring associates who are deferred from law firms to serve as unpaid externs, we revised Advisory Opinion No. 83 relating to payments to law clerks and externs.

Q:

Your Committee can advise, but how binding are these opinions on judges?

A:

They’re called advisory opinions for a reason; the language that we use in the opinions is that the recommendation is the “considered judgment” of the Committee, and of course the individual may take a different view. We are not in the discipline business. I prefer to call us, if you will, the “Dear Abby Committee.” A judge can call us and get advice,


but we are completely separate, and have no reporting or relationship to the Committee on Judicial Conduct and Disability. That separation makes our Committee a safe harbor for confidential advice. I find that judges want to do the right thing. They wouldn’t call us if that weren’t the case.

Q:

Your Committee is unique in that you probably have more judges contacting you daily than any other committee. Why is that? Whom does the Committee advise?

A:

It is no surprise that judges are in touch with us on an ongoing basis. Ethics is part of the fabric of being a judge. Sometimes a judge has worked through an issue, but just wants a sounding board or a second opinion. Other times there is a totally sui generis, novel issue that nobody has seen before, so the judge needs guidance on how to respond. Many times judges call in the middle of trial on recusal issues, and they need immediate advice. We pride ourselves on giving virtually instantaneous service on this type of an inquiry and responding immediately to informal phone or e-mail requests. One of my projects has been to analyze and catalog the inquiries so we can target our training to these topics. For example, we receive many questions about letters of recommendation, recusal, participation in legal education and training activities, limitations on fund-raising, law clerk bonuses, and employee and law clerk extracurricular activities. We make sure that we regularly address these issues in our ethics training for judges and judicial employees, and that our published guidance on these issues is current and thorough. I might add that our inquiries are not limited to judges. We talk to law clerks, staff attorneys, federal defenders, and court staff as well.

We also get calls from lawyers and the public, but it’s not within the scope of our work to provide opinions outside the Judiciary. We do, though, participate in ethics programs sponsored by bar associations and other organizations.

Q:

What is the Committee doing to educate judges and judicial employees about ethics?

A:

In the last few years we’ve really increased our participation in formal training at judicial meetings, particularly through programs with the Federal Judicial Center. At the various national meetings of district judges, magistrate judges, and bankruptcy judges, our Committee members offer interactive ethics presentations. Through the FJC, we also provide training for new judges and provide training for law clerks, staff attorneys, clerks, and judicial assistants. We’ve participated in district conferences that include both judges and attorneys. Lawyers are very interested in knowing about recusal, for example. They also want to know what’s okay for the judge to do with the bar and in the community. In other cases, we have highlighted ethics issues in bench/bar/press meetings. We tailor our training to the audience and our programs range from video vignettes to teaching ethics through country and western music. We have made the offer to all the chief judges that we’re happy to participate in circuit or district judicial conferences. I repeat that offer here, for chief judges and also for clerks of court. We also send out periodic updates to all judges on breaking ethics issues, like the club membership legislation. And, on the J-Net, we provide an array of ethics resources for judges and judicial employees,

including a quiz, where judges can put all of that ethics guidance to the test!

Q:

There have been several recent changes to the Code of Conduct for U.S Judges. How do these changes affect judges? How are the changes being implemented?

A:

Overall, the new Code will be very familiar to judges. I think it’s best to characterize the revisions as an update, a clarification in some cases, and a few new additions. The revision process took several years and the draft code was vetted through public and judicial comment. The last major revision was 17 years ago. The most significant structural change relates to outside activities. Canon Four covered law-related activities and Canon Five covered community activities. The Code now combines all outside activities into a single canon, the new Canon Four. We found it made more sense to collapse the canons.

Q:

How do the changes to the Code of Conduct relate to the ABA Code?

A:

There’s a good story behind the answer to that question. Let me digress a bit to give some context to the relationship between the federal code and the ABA code. The ABA Code came about because of a federal judge and a baseball scandal in 1919. The incident was called the Black Sox Scandal, and some readers may know it from seeing the movie Eight Men Out. What happened was that eight members of the White Sox threw the 1919 World Series. To clean up the game, baseball team owners decided to appoint someone reputable to be the first baseball See Interview on page 12 The Third Branch

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July 2009

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I N T E R V I E W continued from page 11 commissioner. Who better to appoint than a federal judge? The owners chose Judge Kenesaw Mountain Landis. His appointment provoked the question: Is there any conflict in doing both jobs? As it turned out, there was no comprehensive ethics code to answer that question. So the Chief Justice asked the ABA to draft a code, and in 1924, the ABA adopted the Canons of Judicial Ethics. Both federal and state judicial codes since then are derived from those principles. In 2007, the ABA Code went through what I would term a wholesale revision. Our Code remains advisory and aspirational. The Committee carefully reviewed the substantive changes made by the ABA and adopted some of those revisions. The new Code also included necessary clarification and some revisions suggested by federal

judges and the public. The bottom line is that we’ve retained—and we hope, refined—a Code that is appropriate for federal judges.

Q:

What’s on the horizon? Will there be additional revisions to the Codes? New publications?

A:

We will be putting out an updated version of the publication, Ethics Essentials for Judges, and revising the pamphlet for law clerks, Maintaining the Public Trust. We’re producing a video for new judges, and then we plan to tackle the employee code to see if it needs any revisions. In terms of big ethics issues on the horizon, the challenges posed by Internet usage are critical. For example, one issue relates to the tension between judges’ Internet use in connection with information

related to pending cases and the restriction on ex-parte contact. Another issue concerns confidentiality, particularly with respect to law clerks and judicial employees. Approximately 200 million people are on Facebook, and it’s fair to say that most clerks and many employees are on various social networking sites. This trend is not going to change. These sites pose a serious concern about how judicial employees can participate on these types of sites without compromising confidentiality obligations or detracting from the dignity of the courts. We have created programs for law clerks and judges that put these issues on the table for discussion. One thing I can say, especially with the Internet—the ethics arena is never static.


2009-07 Jul  

In June, a bill with supplemental funding for the Judiciary was signed by the President, while in July the federal courts’ fiscal year 2010...

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