Newsletter of the Federal Courts
Vol. 44 Number 3 March 2012
Conference Continues Aggressive Cost Containment
F
ollowing on the heels of a costcontainment summit convened last fall, the Judicial Conference approved a series of money-saving initiatives at its March 2012 meeting in an effort to prepare for funding
levels that will otherwise cause significant reductions in staff and court services. A number of Conference committees, in particular all those with spending authority for specific programs, have focused their agendas on containing costs. In recent years the committees have worked to implement cost savings in areas such as personnel, space and facilities, information technology, and general operations. “The Judiciary is on the cusp of a financial crisis of significant proportions, one that I believe we can assuage somewhat if we are willing to take bold and unprecedented action,” Judge Julia Gibbons, chair of the Budget Committee, told the Judicial Conference. The Conference agreed to ask Congress to approve legislation to drop some duplicative procedures or requirements for probation and pretrial services. For example, one proposal would allow a court to waive electronic monitoring of certain defendants if more restrictive measures, such as residence in a halfway house or treatment facility, are part of the court’s pretrial release order. Continued on page 2
INSIDE Probation Application Puts Clients on the Map......................................................................pg. 6 Jurors Warned About Social Media.............................................................................................pg. 7 What Not to Do in An Election Year............................................................................................pg. 9
Federal District Court Workload Increases in Fiscal Year 2011
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aseloads for fiscal year 2011 increased in the federal district courts and the probation and pretrial services system, while falling slightly in the appellate and bankruptcy courts. The caseload statistics for FY 2011 can be found in the 2011 Judicial Business of the United States Courts, released this month. The Judiciary’s fiscal year 2011 is the 12-month period ending September 30, 2011. The report can be found online at uscourts.gov/judicialbusiness. Continued on page 4
interview
Budgetary Climate Change
T
he Budget Committee’s Economy Subcommittee plays a central role in coordinating the Judiciary’s costcontainment efforts, working to achieve fiscal responsibility, accountability, and efficiency. Beginning on page 10, subcommittee chair Judge Robert Broomfield talks about today’s budgetary climate and what the Judiciary is doing to contain costs.
Conference Continues Aggressive Cost Containment continued from page 1
The Judiciary is concerned about the impact of congressional budget cuts on its ability to maintain clerk’s office and probation officer staffing levels at a time when the workload is not declining. It is especially concerned about the impact of the Budget Control Act, which requires automatic across-the-board spending cuts to take place in January 2013. If Congress does not agree to a deficit reduction plan or amend this “sequestration” requirement, the courts could lose more than one-fourth of their workforce, civil trials could be suspended for months, funds to pay panel attorneys who represent indigent defendants would expire well before the end of the
“The Judiciary is on the cusp of a financial crisis of significant proportions, one that I believe we can assuage somewhat if we are willing to take bold and unprecedented action.” —Judge Julia Gibbons,
fiscal year, and court security could be severely compromised. In the current fiscal year, FY 2012, most of the Judiciary, including the account that pays for operation of the courts, was funded at the same level as FY 2011, despite increasing requirements. The FY 2011 funding level for the court operations account is essentially
the same as it was in FY 2010, which means this account has been frozen for three years. As a result of the already constrained funding levels and concerns about future funding, courts have reduced their staffing levels by about five percent and the Judicial Conference and its committees, with in-put from the courts, are continuing to explore all cost-saving options. “We recognize that making these decisions will not be easy, and may result in less than optimal results. But the fiscal situation likely will require us to make difficult choices,” Gibbons told the Conference. “The alternative is the increasing likelihood that the Judiciary will lose thousands of additional court support staff, which will fundamentally and negatively impact the core work of judges, the courts, and the Judiciary.”
Executive Committee Meets
Prior to the March meeting of the Judicial Conference, the Conference Executive Committee met to discuss Judiciary-related matters. Seated, left to right, Chief Judge Sarah S. Vance (E.D. La.), Chief Judge Joel F. Dubina (11th Cir.), Judge Rodney W. Sippel (E.D. Mo.), and Judge Robert S. Lasnik (W.D. Wash.). Standing: left to right, AO Director, Judge Thomas F. Hogan (D.D.C.), Judge Robin J. Cauthron (W.D. Okla.), chair of the Executive Committee, Chief Judge David B. Sentelle (D.C. Cir.), and Chief Judge William B. Traxler, Jr. (4th Cir.).
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Judicial Conference of the United States, March 13, 2012 Chief Justice John G. Roberts, Jr., Presiding
Seated: (LtoR) Chief Judge Sandra L. Lynch (1st Cir.); Chief Judge Dennis Jacobs (2nd Cir.); Chief Judge Theodore A. McKee (3rd Cir.); Chief Judge William B. Traxler, Jr. (4th Cir.); Chief Justice John G. Roberts, Jr.; Chief Judge Edith Hollan Jones (5th Cir.); Chief Judge Alice M. Batchelder (6th Cir.); Chief Judge Frank H. Easterbrook (7th Cir.); Chief Judge William Jay Riley (8th Cir.). Standing, Second Row: (LtoR) Chief Judge Mark L. Wolf (D. Mass.); Chief Judge Carol Bagley Amon (E.D. NY); Chief Judge Gary L. Lancaster (W.D. Pa.); Chief Judge David Bryan Sentelle (DC Cir.); Chief Judge Randall R. Rader (Fed. Cir.); Chief Judge Alex Kozinski (9th Cir.); Chief Judge Mary Beck Briscoe (10th Cir.); Chief Judge Joel F. Dubina (11th Cir.); Chief Judge Deborah K. Chasanow (D. Md.); and Chief Judge Sarah S. Vance (E.D. La.). Standing, Third Row: (LtoR) Judge Thomas A. Varlan (E.D. Tenn.); Chief Judge Richard L. Young (S.D. Ind.); Judge Robert S. Lasnik (W.D. Wash.); Judge Robin J. Cauthron (W.D. Okla.); Judge Rodney W. Sippel (E.D. Mo.); Judge W. Louis Sands (M.D. Ga.); Chief Judge Royce C. Lamberth (D. DC); Chief Judge Donald C. Pogue (Int’l Trade); and Judge Thomas F. Hogan, Dir, AOUSC.
Judicial Conference Reception
In March 2012, Chief Justice John G. Roberts, Jr., presided over his 12th Judicial Conference meeting and, later, spoke with judges at a Supreme Court reception.
Chief Judge Gary L. Lancaster (W.D. Pa.) (left), Judicial Conference member, with Chief Judge Sidney A. Fitzwater (N.D. Tex.), chair of the Conference Advisory Committee on Evidence Rules.
Judge Anthony J. Scirica (3rd Cir.), chair of the Conference Committee on Judicial Conduct and Disability with Executive Committee chair, Chief Judge David B. Sentelle (DC Cir.)
Judge Diarmuid F. O’Scannlain (9th Cir.), chair of the Conference Committee on International Judicial Relations with Judge Julie Robinson (D. Kan.) chair of the Conference Committee on Court Administration and Case Management.
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Federal District Court Workload Increases in Fiscal Year 2011 continued from page 1
Appeals Filed, by Type 20,000 16,000
U.S. Courts of Appeals Filings in the regional courts of appeals fell 1.5 percent to 55,126. Criminal appeals dropped 5 percent to 12,198, primarily because appeals related to non-marijuana drugs decreased as fewer prisoners sentenced for crack cocaine offenses sought reductions of their sentences. Appeals of administrative agency decisions decreased 3 percent to 7,550. Civil appeals held relatively steady, falling by 207 to 30,733. Original proceedings grew 5 percent to 3,962, and bankruptcy appeals rose 1 percent to 683. Appeals involving pro se litigants, which accounted for 49 percent of appeals filed during FY 2011, declined by 66 to 27,143. More than half of all pro se appeals, 14,057, were filed by prisoners.
12,000 8,000 4,000 0
2008
2009
2010
2011
12–Month Periods Ending September 30
■ Criminal
■ Prisoner Petitions
■ Administrative Agency
■ Original Proceedings
■ All Other
Civil Cases Filed, by Nature of Suit 90,000 75,000 60,000 45,000 30,000 15,000 0
2007
2008
2009
2010
2011
12–Month Periods Ending September 30
■ Personal Injury
U.S. District Courts Total civil and criminal filings in the district courts rose 2 percent to 367,692 in FY 2011.
2007
■ Prisoner Petitions
■ Civil Rights
■ Real Property
■ Consumer Credit
Criminal Defendants Filed, by Nature of Offense 35,000 30,000 25,000 20,000
Civil Filings
Civil case filings grew 2 percent for the second consecutive year, up 6,357 cases to 289,252. The increase was caused by a 2 percent rise in federal question cases— i.e., actions under the Constitution, laws, or treaties of the United States in which neither the United States itself, nor any of its agencies or offices, is a party in the case. The growth in federal question filings stemmed from increases of 5 percent in civil rights cases, 15 percent in consumer credit filings, and 11 percent in intellectual property cases. For example, civil rights filings, related to the Americans with Disabilities Act rose 17 percent; intellectual property rights filings involving patents jumped 24 percent. Filings with the United States as plaintiff increased 25 percent as cases concerning 4
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15,000 10,000 5,000
2007
2008
2009
2010
2011
12–Month Periods Ending September 30
■ Drugs
■ Firearms
■ Fraud
■ Immigration
■ Other
Percent Change in Bankruptcy Filings, by District 12–Month Periods Ending September 30, 2010–2011
■ Decreased More than 15% ■ Decreased 12 to 14% ■ Decreased 9 to 11% ■ Decreased 6 to 8% ■ Decreased Less than 6% or Increased
defaulted student loans surged 58 percent. Filings with the United States as defendant grew 5 percent, mainly due to a 12 percent rise in Social Security filings when supplemental security income filings and disability filings rose.
Post-Conviction Supervision as of September 30, 2007 Parole 2%
Term of Supervised Release 77%
Probation 21%
Criminal Filings
Filings of criminal cases (including transfers) was largely unchanged (up 12 cases to 78,440) in FY 2011, but the number of criminal defendants rose 3 percent to set a new record of 102,931. Drug offenses continued to be the crimes most commonly prosecuted in the district courts, accounting for 31 percent of all defendant filings. Twentyeight percent of all defendant filings were associated with immigration offenses. The number of defendants accused of immigration offenses declined for the first time since 2006, dropping 3 percent to 28,239. The number of defendants charged with fraud offenses rose 3 percent to 12,973, and the most notable increase was in defendants charged with attempt and conspiracy to defraud, which grew 34 percent to 2,239. Growth in filings also occurred for defendants charged with firearms and explosive offenses, sex offenses, property offenses, and general offenses. U.S. Bankruptcy Courts
Bankruptcy filings fell 8 percent to 1,467,221 in fiscal year 2011. This was the first decline in filings since 2007, when filings fell dramatically after enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Eighty-seven of the 90 bankruptcy courts reported fewer filings in 2011. Only three courts reported increased filings: the District of Utah (up 6 percent), the Middle District of Louisiana (up 1 percent), and the Central District of California (also up 1 percent). Three districts had reductions of 20 percent or more: the Western District of New York (down 20 percent), the
Post-Conviction Supervision as of September 30, 2011 Parole 2%
Term of Supervised Release 81%
Southern District of West Virginia (down 24 percent), and the District of Vermont (down 26 percent). The total number of nonbusiness bankruptcy petitions decreased 8 percent in fiscal year 2011, and business petitions declined 14 percent. Filings dropped 10 percent under chapter 7, 16 percent under chapter 11, and 4 percent under chapter 13. Federal Probation and Pretrial Services System
The number of persons under postconviction supervision on September 30, 2011, was 129,780, an increase of 2 percent over the total one year earlier. Persons serving terms of supervised release at the end of FY 2011, following release from a correctional institution, increased 2 percent over the prior year’s total to reach 105,037, and accounted for 81 percent of all persons under supervision. Forty-seven percent of persons under post-conviction supervision had been
Probation 17%
convicted of drug offenses, 22 percent had been convicted of property offenses, and 12 percent had been convicted of firearms offenses. These percentages remained unchanged from 2010. The proportion of post-conviction cases terminated successfully remained unchanged at 71 percent. The number of cases opened in the pretrial services system, including pretrial diversion cases, totaled 113,875, 2 percent more than in 2010. In 39 percent of cases opened in 2011, the major offense involved immigration. In 29 percent of pretrial services cases, the major offense charged involved drugs. Cases involving property offenses represented 13 percent of pretrial services cases opened this year, and cases involving firearms offenses represented 7 percent. A total of 32,821 defendants were released with specified conditions, such as pretrial services supervision or location monitoring. The Third Branch
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Probation and Pretrial Services Tool Puts Clients on the Map
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he expression, ‘all over the map’ usually describes a number of different pieces of information widely scattered—like the multiple defendants/ offenders (or “clients”) under supervision that must be tracked by probation or pretrial services officers. Now, a new software application tames the map. The Probation and Pretrial Services Client Mapping Application (Version 1.0), for use by federal probation and pretrial services offices, is slated to roll out at the end of March. The client mapping application is part of the Probation and Pretrial Services Automated Case Tracking System (PACTS). Its mapping feature is familiar to anyone who has used online maps to pinpoint and get directions to a location. But the application does more than just give probation and pretrial services officers driving directions Matt Rowland, Acting Assistant Director of the Office of Probation and Pretrial Services, notes that all sorts of case information can now be displayed geographically. For example, the application can highlight on a map which offenders have been convicted of certain types of offenses, which clients are subject to a given type of supervision condition, and display offenders by the degree of risk they present for recidivism. Supervisors can use the map when assigning new cases and take into account both the nature of the case and the location of the officer’s existing cases. Districts, county lines, and even zip codes can be
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highlighted on the map, with offenders’ locations superimposed. The application gives officers a street level view of any location a client might give as his or her home address. That makes it easier for a supervising officer to scan the neighborhood for identifying landmarks—and ask questions that verify the offender actually resides at the location. The client mapping application also works with current Blackberry devices to let officers stand at a location, such as an offender’s home address, and get the GPS coordinates—the latitude and longitude. The coordinates are written back to the PACTS database and linked to information about the offender. The mapping application may increase officer safety. Officers can see if a colleague has a client in the vicinity and arrange to conduct field work together to promote safety and add a second set of eyes to the case. The application optimizes the travel route of two officers traveling together, showing
the best route for home visits by both officers. The application also launches an application to email the itinerary to a colleague or supervisor, letting them know where officers will be traveling, which aids communication in the case of an emergency. Future functionality is planned that will allow the application to work on any mobile device, and also locate nearby clinics and halfway houses, proximity to schools, treatment centers, sheriffs offices, and even street closures. Also, in a future version, the client mapping application will help officers with the requisite travel forms, automatically filling in the log of where visits were made, who was visited, and other information. For officers, the mapping application will be a valuable planning tool because, “it helps officers make more home visits in less time and be better prepared for them,” said Rowland. To view an informational video on the client mapping application, visit www. uscourts.gov/video.
Most Federal Judges Warn Jurors About Social Media
M
ost federal judges have taken steps to ensure that jurors do not use social media to discuss the trial in which they are involved, a survey of trial judges in all of the nation’s 94 judicial districts indicates. The Federal Judicial Center was asked by the Judicial Conference Committee on Court Administration and Case Management (CACM) to survey federal judges on the issue. Its report said that 94 percent of the 508 judges who responded said they formally have warned jurors about any case-connected use of social media. “The most common strategy is incorporating social media use into jury instructions—either the model jury instructions provided by CACM or judges’ own personal jury instructions,” the report said. “Also common are the practices of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom,” the report added. As a result of the survey, CACM has asked a subcommittee to consider whether the model jury instructions the committee issued in December 2009 should contain additional language. The subcommittee also was asked to explore additional options mentioned by some judges, such as having jurors sign a pledge promising to avoid social media. (Read the existing model instruction at http://www.uscourts.gov/ uscourts/News/2010/docs/DIR10-018Attachment.pdf.) The survey, conducted in October 2011, found that the detected use of social media by jurors during trials and deliberations is not a common
occurrence. Of the 508 responding judges, only 30 reported any detected instances. Twenty-eight of those 30 judges said they discovered social media use in only one or two trials.
Three judges reported that a juror “friended” or attempted to “friend” one or more participants in the case, and three reported that a juror communicated or attempted to communicate directly with participants in the case. Of the 17 judges who described the type of social media used by jurors, three judges reported that a juror “friended” or attempted to “friend” one or more participants in the case, and three reported that a juror communicated or attempted to communicate directly with participants in the case. One judge reported that a juror revealed identifying information about other jurors. Two judges described situations in which a juror contacted a party with case-specific information. In one, the juror contacted the plaintiff ’s former employee to reveal a likely verdict. In the other, an alternate juror contacted an attorney during jury deliberations to provide feedback and the likely verdict. Action taken by judges who learned of jurors’ social media use varied. Nine judges reported that they removed a juror from the jury; eight said they cautioned the wayward juror but allowed them to remain on
the jury. Four judges declared mistrials because of such juror conduct; one judge held a juror in contempt of court; and one judge reported fining a juror. Asked about what specific measures they had taken to prevent the use of social media by jurors, 60 percent of the judges who responded—304 judges —said they have used the model jury instructions during a trial, and most of them had used the instructions in both civil and criminal trials. Confiscation of jurors’ telephones and other electronic devices at the start of each day of trial was a strategy employed by 113 judges, and 147 judges reported confiscating phones and other electronic devices during the jury’s deliberation. “Although the use of social media is a relatively new phenomenon, judges have responded in timely fashion to address its use in the courtroom,” the report said. “. . . Judges admit that it is difficult to police jurors, and therefore use of social media is difficult to detect.” The survey questionnaire was sent to all active and senior federal district judges, 952 in all. The response rate was 53 percent. The survey report is posted on the Federal Judicial Center’s website, at http:// www.fjc.gov/public/pdf.nsf/lookup/ dunnjuror.pdf/$file/dunnjuror.pdf.
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March Judicial Milestones Appointed: Morgan Christen, as U.S.
Appointed: David J. Novak, as U.S.
Court of Appeals Judge, U.S. Court of Appeals for the Ninth Circuit, January 14. Appointed: John M. Gerrard, as U.S. District Judge, U.S. District Court for the District of Nebraska, February 6.
Magistrate Judge, U.S. District Court for the Eastern District of Virginia, February 1. Appointed: Steven P. Logan, as U.S. Magistrate Judge, U.S. District Court for the District of Arizona, January 30. Appointed: Roy S. Payne, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Texas, December 28. Appointed: Diana Song Quiroga, as U.S. Magistrate Judge, U.S. District Court for the Southern District of Texas, January 4. Appointed: Stephan M. Vidmar, as U.S. Magistrate Judge, U.S. District Court for the District of New Mexico, December 27. Appointed: Kaymani D. West, as U.S. Magistrate Judge, U.S. District Court for the District of South Carolina, January 1.
Appointed: U.S. Magistrate Judge Cathy Ann Bencivengo, as a U.S.
District Judge, U.S. District Court for the Southern District of California, February 10. Appointed: Sharon L. Gleason, as U.S. District Judge, U.S. District Court for the District of Alaska, January 4. Appointed: Alison J. Nathan, as U.S. District Judge, U.S. District Court for the Southern District of New York, January 3. Appointed: Edgardo Ramos, as U.S. District Judge, U.S. District Court for the Southern District of New York, December 15. Appointed: James Rodney Gilstrap, as U.S. District Judge, U.S. District Court for the Eastern District of Texas, December 15. Appointed: Donald R. Cassling, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Illinois, January 18. Appointed: M. Elaine Hammond, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of California, February 2. Appointed: Mark D. Houle, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, February 17. Appointed: Randal S. Mashburn, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Middle District of Tennessee, January 12. Appointed: Therese Wiley Dancks, as U.S. Magistrate Judge, U.S. District Court for the Northern District of New York, February 10.
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Senior Status: U.S. Court of Appeals Judge Fortunato P. Benavides, U.S.
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 DIRECTOR Judge Thomas F. Hogan EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTORS Dick Carelli, AO Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.
Court of Appeals for the Fifth Circuit, February 3. Elevated: U.S. District Judge Paul Kinloch Holmes III, to Chief Judge, U.S. District
Court for the Western District of Arkansas, succeeding U.S. District Judge Jimm Larry Hendren, February 14. Elevated: U.S. District Judge Leonard E. Davis, to Chief Judge, U.S. District
Court for the Eastern District of Texas, succeeding U.S. District Judge David Folsom, January 1. Elevated: U.S. District Judge Barry Ted Moskowitz, to Chief Judge, U.S.
District Court for the Southern District of California, succeeding U.S. District Judge Irma E. Gonzalez, January 23. This month, Milestones exceeded the available space. Please visit the Third Branch on-line at www.uscourts.gov/news/ TheThirdBranch.aspx to read the complete Milestones for March.
JUDICIAL BOXSCORE
As of March 1, 2012 Courts of Appeals Vacancies...................................16 Nominees.................................... 9 District Courts Vacancies...................................66 Nominees..................................30 Court of International Trade Vacancies..................................... 2 Nominees.................................... 0 Courts with “Judicial Emergencies”..........34 Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx
Code Carries Restrictions on Political Activities
I
n an election year, opportunities abound to participate in the political process. Indeed, at a basic level, citizens take part in the process by exercising their right to vote. However, members of the Judiciary, including judges and chambers, and court staff should be aware of certain restrictions on other activities. Canon 5 of both the Code of Conduct for United States Judges and the Code of Conduct for Judicial Employees is very clear: Judges and judicial employees should refrain from political activity. Advisory Opinion No. 92 provides additional guidance for judicial employees. A judge or court employee should not act as a leader or hold any office in a partisan political organization. This includes making speeches for or publicly endorsing or opposing, or soliciting funds for or contributing to a partisan political organization, candidate, or event. A judge, as well as a member of a judge’s personal staff, clerk of court, chief probation officer, chief pretrial services officer, circuit executive, and district court executive “should refrain from nonpartisan political activity such as campaigning for or publicly endorsing or opposing a nonpartisan
political candidate.” Prohibitions apply on campaigning, endorsing, opposing, or becoming a non-partisan candidate. According to Canon 5, “Other judicial employees may engage in nonpartisan political activity only if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties.” Needless to say, such activity may not be conducted while the employee is on duty or in the workplace and may not use federal resources. Additional restrictions on the political activities of law clerks are covered in the publication, Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks.
I nitiating or circulating a nominating petition for a candidate. S erving in any position at a polling place or serving in any other position that relates to voting in a partisan election. P ublicly displaying a campaign picture, sign, sticker, badge, or button for a partisan or nonpartisan political candidate. A ttending or purchasing a ticket for a dinner or other event sponsored by a political organization or candidate.
What is Permitted Of course, registering and voting in any primary or general election, including registering as a member of a political party is permitted for all members of the federal Judiciary. Judiciary employees are free to express opinions on political candidates or parties—as long as it’s privately and as an individual. Participation in nonpolitical outside activities whether civic, charitable, religious,
Newsletter Moves to Online News
S
Among the activities prohibited by Canon 5
pring 2012 will see The Third Branch newsletter become the Third Branch News, an on-line source for all the information and news you’d regularly find in the print newsletter. The print format will be discontinued, both as a cost-saving measure and as an acknowledgement of the web’s immediacy and accessibility. The Third Branch News will incorporate regular statistical updates on caseloads and trends, as well as audio and video interviews, while continuing our reporting on news of the federal courts. To receive Third Branch e-news updates, sign up on our website at Email Updates: http/www.uscourts.gov/Common/EmailUpdates.aspx.
professional, educational, cultural, avocational, social, fraternal, or recreational is permitted. Judges and judicial employees may speak, write, lecture, and teach—as long as their activity complies with Canon 4 of the Code of Conduct, avoids the risk of conflict with official duties and the appearance of impropriety, and complies with disclosure requirements.
Vol. 43
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Vol. 43 Numbe r 11 Novemb er 2011
Bankruptcy Clerk Becomes Army Reserve’s Highest Ranking AfricanAmerican Wom an
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clerk of court’s life is busy and demanding. Combine a clerk’s responsib ility with those of an Army Reservist and you describe the sometim es frenetic life of Marcia Anderson , bankruptcy clerk of court for the Western District of Wisconsi n—and the first African-American woman to earn a second star and a promotion to Major General in the Army Reserve.
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The interview beginnin The of potential and enhancing the city’s Tenderlo in this instance, called for g on page 10. operations analyst. costs in a theater of war; who are to give every Lynn Fuller, a court on cutting tubs of gently and Iraq. court’s goal is citizens nds tan recycling Afghanis large How depe r two e. in Kuwait, unte blanket. 4 court collected experienc for donation child their own that enco Continued on page ed to other footwear ce view es are accustom used shoes and es jury servi Court employe to assist center and employe es, stepping in to a local homeless were so helping their colleagu earthsocks. “Some people and give relief after contributed new down as with caseloads disasters. they flagged us w s, floods, and other anxious to get shoes, INtE rvIE sidewalk to quakes, hurricane the bins down the es in federal courts we were rolling But Judiciary employe of their Fuller recounts. also are proud shelter,” country the the District around to the needy the country, at the local causes and Halfway across Dallascontributions to their own District of Texas, ities. 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interview
Subcommittee Builds Trust With Cost-Containment Efforts
J
udge Robert Broomfield (D. Ariz.) has been a member of the Judicial Conference’s Budget Committee since 1997, and chair of the Committee’s Economy Subcommittee since 2003.
Q: The Economy Subcommittee was established by the Judicial Conference in 1993. What was the impetus behind the Subcommittee’s creation? A: The Economy Subcommittee, a part of the Judicial Conference’s Budget Committee, is charged with coordinating the efforts of the Judiciary to achieve fiscal responsibility, accountability, and efficiency in its overall operations. At the request of Congress, the Subcommittee was created to serve an oversight role similar to that which the Office of Management and Budget performs for the Executive Branch. Back in 1993, Congress was concerned that the Judiciary’s annual budget requests were too large and that there was no oversight and review within the Judiciary of our request. The creation of the Economy Subcommittee of the Budget Committee was an effort to improve and enhance the relationship of trust between the Judiciary, through its Budget Committee, and the Congress, through its House and Senate Appropriations Committees. In short, the role was to demonstrate to Congress the Judiciary’s stewardship of the funds entrusted to it to operate. As a consequence, it sought to foreclose the need for any further enhanced oversight of the Judiciary’s budget by the Congress or possibly by the Office of Management and Budget. Since 2005, as an outgrowth of the Judiciary’s 2004 budget crisis, the Economy Subcommittee’s work has been complemented by the creation of another 10
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subcommittee of the Budget Committee, the Congressional Outreach Subcommittee, which has the responsibility to maximize the Judiciary’s annual appropriations. This one-two punch has served the Judiciary well.
Q: How is the budgetary climate different today? A: In the 1990s and into the 2000s, while the budget climate was difficult, the discussion generally centered on whether the Judiciary could manage with an increase from Congress that was in the single digits. Today’s budget environment is dramatically different. Budget cuts— actual reductions from one year to the next—or freezes will become the norm. Success for us is now obtaining any increase whatsoever, or simply achieving a freeze from one year to the next. Another factor is our country’s annual budget deficit and the national debt. The late 1990s saw balanced annual budgets, with budget surpluses, not deficits. We are now in the fourth consecutive year of annual deficits exceeding $1 trillion, with a cumulative national debt approaching $16 trillion. The financial turmoil we see in Europe threatens our own economy as well. All of this was nearly unthinkable 20 years ago.
Q: What is the Subcommittee’s current role/function? A: In recent years and currently, the Economy Subcommittee has played a central, coordinating role in the Judiciary’s cost-containment efforts by working
Judge Robert Broomfield (D. Ariz.)
collaboratively with the chairs of the nine program committees with spending authority to develop and implement costcontainment initiatives, consistent with the Judiciary’s constitutional and statutory responsibilities. If not for the excellent efforts of these program committees in recent years the Judiciary could not have survived the increasing limitations on its annual appropriations. The Subcommittee also continues to review annual budget requests from these committees and develop recommendations for the full Budget Committee to consider. The Subcommittee also reviews long-range (5 to 10 year) budget forecasts developed by the Administrative Office.
Q: Would you walk us through how your Subcommittee works with program committees of the Judicial Conference as they formulate the budget? A: The budget-making process begins approximately 18 months prior to the fiscal year in question. Each year, in the Spring, the Budget Committee Chair, with the advice of the full Committee, provides general guidance to these spending committees as to an amount of an annual increase which the Budget Committee feels could be fairly and credibly put before Congress. One of the key cost-containment
practices applicable to each spending committee are budgetary caps adopted by the Judicial Conference upon the recommendation of the Budget Committee. The chair’s annual guidance letter I mentioned may contain a request which is less than these budget caps. The Economy Subcommittee works with each spending committee to assist it in remaining within the request in this guidance letter and the budget caps. In turn, the program committees submit their proposed budget requests to the Budget Committee. The Economy Subcommittee reviews these requests and makes recommendations to the full Budget Committee each fiscal year. In July, all of the spending committee chairs meet with the Budget Committee to discuss their proposed budget requests. The Economy Subcommittee recommends to the full Budget Committee a proposed budget for the ensuing fiscal year. The Budget Committee, in turn, recommends a budget to the Judicial Conference. The Conference-approved budget is sent to the President, who by statute must submit it to Congress “without change.”
Q: Why is cost containment important now? A: Cost containment is vital and critical to the budgetary process. Without the cost-containment efforts by the spending committees and others, the Judiciary’s budget would be viewed as unacceptable and not credible to the congressional appropriation committees. As difficult as this budgetary process is, these cost-containment efforts account for, in a major way, our success with the appropriation committees. They build that trust so essential to our relationship with the Congress. We are viewed favorably by our appropriators, and cost containment allows us to build on that viewpoint.
We have begun a new round of cost containment recognizing that we need to do more. This next round of costcontainment initiatives will be more difficult and may require us to make choices that we would prefer not to have to make. But we are committed to doing everything we can to conserve resources and be good stewards of the taxpayers’ money. We will take these difficult steps with the belief that they are essential to positioning the Judiciary for the fiscal realities of today and the future.
Q: How might some of the costcontainment proposals impact judges and court staff? A: Up to now, most cost-containment efforts have had limited effect on judges; the most notable was the Judicial Conference’s September 2007 limitation of one career law clerk per chambers. Most of the cost containment efforts have affected the clerks’ offices, and probation and pretrial services offices. Because of the significant reductions projected in future budgets, however, all judges ultimately may feel the impact of cost containment to a greater degree. Future fiscal years are likely to be more difficult than ever before. The major portions of the Judiciary’s budget are people and space. Future limitations on funding for personnel are likely and may reach a point where it may affect chambers staff. This is why cost containment is so vital. The more successful Judiciary-proposed cost-containment efforts are, the less likely it will be that more draconian budgetary limitations will be imposed by Congress.
Q: What are some of the other cost-containment efforts that are under consideration? A: One of the new initiatives is to maximize the implementation of shared
administrative services among the courts of appeals, district courts, bankruptcy courts, and probation and pretrial services offices. This will reduce the duplication caused by multiple human resources, procurement, financial management, and information technology staffs in a single judicial district or circuit. This effort will reduce staffing and overhead costs and streamline administrative processes in the courts. It could also lead to enhanced service levels as administrative staff are able to become more specialized. Through the program committees, efforts are underway to update staffing formulas to include best practices, benchmarks, performance standards, incentives for efficiency, and shared administrative services. Similarly, standardized approaches to delivering information technology products and services to the courts are being developed. Efforts to continue to reduce the amount spent on law books and law libraries in recognition of the increased reliance on computers to perform legal research are ongoing. Another ongoing effort to reduce space costs contemplates, to the extent practicable, relocating probation and pretrial services offices out of leased space and moving them into existing courthouses as well as identifying and seeking to close underutilized facilities. Another cost-containment benefit came from the well-known Case Management/ Electronic Case Files system. It is so beneficial that efforts to develop the Next Generation CM/ECF are well underway. Through the IT program, certain computer servers in the 94 districts have been consolidated to servers in only a few locations. Likewise, the Probation and Pretrial Services Offices have been consolidated in all but 23 districts nationwide. Extensive savings have also been realized in all Probation and Pretrial Continued on page 12 The Third Branch
March 2012
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interview Services Offices through early termination of supervision; waiving, modifying, or expediting pre-sentence reports; and monitoring location of persons in several ways. In identifying these and other new cost-saving ideas, the AO’s court advisory groups were involved, so that we had the perspective of our front-line workers when considering cost-cutting measures. There are scores of other ideas which individually will result in cost savings or containment in small ways, yet, collectively, they will add up.
Q: How do the Judiciary’s efforts to economize affect our annual appropriations request? A: Our Congressional appropriators are aware of our cost-containment efforts developed over the years since the
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creation of the Economy Subcommittee and accelerated in recent years, and are appreciative of them. Again, it’s that trust factor which has resulted in Congress making the Judiciary a funding priority even in difficult fiscal times. This does not mean we receive everything we ask for from Congress; however, in recent years, including for fiscal year 2012, the Judiciary has fared better than most other federal agencies and entities.
Q: How has Congress reacted to the work of the subcommittee? A: As I said, we are absolutely transparent with the Congress and it is aware of our efforts to contain costs. Members of Congress and their staffs believe us when we show them we have limited expenses or saved money. In short, we receive better treatment overall by our candor.
Q: What issues will your subcommittee deal with in the coming fiscal year? A: We will continue our efforts to work with the spending program committees of the Judicial Conference to enhance their past, current, and future efforts to contain costs, and come up with new cost-containment initiatives where appropriate. We will also have to work with those committees and the full Budget Committee in developing a fiscal year 2014 budget request this summer in a difficult budget climate, one marked with great uncertainty about what our fiscal year 2013 outcome might be. And in all likelihood, we won’t know that outcome until after the elections in November, months after we will have had to complete our work on the 2014 request.