Page 1

Newsletter of the Federal Courts

Vol. 42

Judiciary Approves Pilot Project for Cameras in District Courts

T

he Judicial Conference, at its biannual meeting in September, approved a pilot project to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings. The pilot, which will be national in scope, will last up to three years. It will evaluate the effect of cameras in district court courtrooms, video recordings of proceedings, and publication of such video recordings. Details of the development and implementation of the pilot will be determined by the Conference’s Committee on Court Administration and Case Management (CACM).

The pilot will evaluate the effect of cameras in district court courtrooms, video recordings of proceedings, and publication of such video recordings. Courts that participate in the pilot will, if necessary, amend their local rules (providing adequate public notice and opportunity to comment) to provide an exception for judges participating in the pilot project. Participation will be at the trial judge’s discretion. Under the pilot, participating courts will record proceedings. Recordings by other entities or persons will not be allowed. Recording of members of a jury will not be permitted, and parties in a trial must consent to participating in the pilot.

The Federal Judicial Center will conduct a study of the pilot, and produce interim reports at the end of its first and second years. The Administrative Office will provide funding for equipment and training as needed by a participating court. Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946, and by the Judicial Conference since 1972. In 1996 the Conference rescinded its camera coverage prohibition for courts of appeals, and allowed each appellate court discretion to permit broadcasting of oral arguments. To date, two courts of appeals—the Second and the Ninth—allow such coverage. In the early 1990s the Judicial Conference conducted a pilot program permitting electronic media coverage of civil proceeding in six district courts and two courts of appeals. In other matters, the Conference: ■■ Approved a new Strategic Plan for the Federal Judiciary, which upholds the Judiciary’s tradition of meeting challenges and taking advantage of opportunities, while preserving core values. The plan includes goals to enhance the Judiciary’s accessibility, timeliness, and efficiency. The plan also stresses the importance of attracting, See Judiciary on page 2

INSIDE Progress on Next Gen CM/ECF.............pg. 5 Seasonality & Bankruptcy Filings.........pg. 9

Number 9

September 2010

Congress Considers Funding for Fiscal Year 2011

A

s in some past years, the Judiciary will likely begin Fiscal Year 2011 without an enacted appropriations bill and, instead, will be operating at FY 2010 funding levels under a continuing resolution. Depending on the outcome of the November congressional elections, final action on the Judiciary’s appropriations bill could take anywhere from three to six months to complete.

House & Senate Action In July the Senate Appropriations Committee reported its version See Congress on page 4

interview

Federal and State Court Jurisdiction

W

hat is the proper role of the federal courts relative to the state courts? For a look at how Judge Janet Hall and the members of the Federal-State Jurisdiction Committee answer that question, see Judge Hall’s interview on page 10.


Judiciary Approves Pilot Project for Cameras in District Courts continued from page 1

developing and retaining judicial and court executive talent, and calls for increased education and training for judges and staff on security, ethical conduct, integrity, and accountability. For more on the initiative see the sidebar: Addressing the Challenges. ■■ Found a continuing need for all autho-

rized bankruptcy judgeships (316 permanent and 36 temporary) and therefore recommended to Congress that it not eliminate any of them. Still pending in the Senate is a House-passed bill based on the Conference’s 2009 recommendation for creation of 13 additional bankruptcy judgeships and conversion of 22 existing temporary judgeships to permanent status. More than 1.5 million bankruptcies were filed in the federal courts during the 12-month period ending June 30, 2010—a 20 percent increase over the filings for the same period in 2009.

■■ Approved the establishment of a

program involving the Government Printing Office, the American Association of Law Libraries and the Administrative Office, that would provide

training and education to the public about PACER service, and would exempt from billing the first $50 of quarterly usage by a library participating in the program.

Addressing the Challenges The strategies and goals in the Judiciary’s Strategic Plan are organized around several challenges to: Provide justice in a more effective manner to meet new and increasing demands. Manage resources and programs in an effective and efficient manner that reflects workload variances and funding realities. Support a lifetime of service for federal judges. Attract and retain a highly competent and diverse complement of Judiciary staff, while developing the next generation of Judiciary leaders. Develop national technology systems while fostering the development of creative approaches and solutions at the local level. Remain comprehensible, accessible and affordable for people who participate in the judicial process, while responding to demographic and socioeconomic changes. Develop and sustain effective relationships with Congress and the Executive Branch, yet preserve appropriate autonomy in Judiciary governance, management and decisionmaking. Promote public trust and confidence in the federal courts, in a manner consistent with the Judiciary’s role. Read the complete Strategic Plan at www.uscourts.gov/publications.

The Executive Committee of the Judicial Conference (Seated L to R) Judge Charles R. Breyer (N.D. Calif.), Chief Judge David B. Sentelle (D.C. Cir.), chair; Chief Judge Jane A. Restani (Ct. Int’l Trade), Chief Judge William B. Traxler, Jr. (4th Cir.). (Standing L to R) Chief Judge Harvey Bartle III (E.D. Pa.), Chief Judge Joel F. Dubina (11th Cir.), Judge Rodney W. Sippel (E.D. Mo.), Administrative Office Director James C. Duff. 2

The Third Branch n September 2010


Judicial Conference of The United States September 14, 2010 (Seated L to R) 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 L to R) Chief Judge Mark Wolf (D. Mass.); Chief Judge William K. Sessions III (D. Vt.); Chief Judge Harvey Bartle III (E.D. Pa.); Chief Judge David Bryan Sentelle (D.C. 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 James P. Jones (W.D. Va.); and Judge Sim Lake (S.D. Tex.). (Standing, Third Row L to R) Chief Judge Solomon Oliver, Jr. (N.D. Ohio); Chief Judge Richard L. Young (S.D. Ind.); Judge Charles R. Breyer (N.D. Cal.); Judge Robin J. Cauthron (W.D. Okla.); Judge Rodney Sippel (E.D. Mo.); Judge Myron H. Thompson (M.D. Ala.); Chief Judge Royce C. Lamberth (D. D.C.); Chief Judge Jane A. Restani, (Ct. Int’l Trade); and James C. Duff, Director, AOUSC.

2010 Award Recognizes Employees for Service to the Courts

T

wo Administrative Office employees have been specially recognized for their contributions to the federal courts. Judge Donald C. Pogue, chair of the Judicial Conference Committee on Audits and Administrative Office Accountability, awarded Tim Dole, Attorney Advisor, Office of the Deputy Director; and Ross Eisenman, Assistant Director, Office of Facilities and Security, the 2010 Leonidas Ralph Mecham Award for Exemplary Service to the Courts. Award recipients are selected for significant accomplishments on a specific project or effort that has improved court administration, internal controls, program effectiveness, communications, or efficiency in the courts or the AO. Dole was recognized for managing to completion two major national projects of substantial importance to the courts: production of a new Guide to Judiciary

(Left to right) Administrative Office Director Jim Duff; Tim Dole, Attorney Advisor, Office of the Deputy Director; Ross Eisenman, Assistant Director, Office of Facilities and Security; and Judge Donald C. Pogue (Ct. Int’l Trade), chair of the Judicial Conference Committee on Audits and Administrative Office Accountability.

Policy, and revision and modernization of the forms used in the courts. Eisenman was recognized for his leadership in providing 2,000 judges with home alarm systems in

the wake of the murder of members of Judge Joan Lefkow’s family, and in instituting budget controls in the facilities program that have resulted in significant savings. The Third Branch n September 2010

3


Congress Considers Funding for Fiscal Year 2011 continued from page 1

of the Financial Services and General Government Appropriations Bill (S. 3677), which would provide a 5.5 percent overall increase for the Judiciary. This increase, essentially what is requested in the Judiciary’s FY 2011 updated budget request, would allow the courts to fully fund current on-board staff and, with anticipated fee and carryover levels, would allow for staffing increases in those courts with the greatest workload increases. In its version of the bill, the House Appropriations Committee provides an overall increase of 3.9 percent for the Judiciary. This increase would fund the Judiciary at roughly 2010 service levels.

“We are confident that sufficient funds will be available in FY 2011 to keep the courts operating at current levels.” —Administrative Office Director Jim Duff

Despite the difference in House and Senate funding levels, at a minimum, funding should be available to retain court personnel on-board at the end of FY 2010. “We are confident,” said Administrative Office Director Jim Duff, “that sufficient funds will be available in FY 2011 to keep the courts operating at current levels.” Duff added, “We hope Congress will

acknowledge the growing criminal and bankruptcy caseload facing the courts and provide the additional resources needed by the Judiciary.”

Funding for Courthouse Projects The Financial Services and General Government Appropriations Bill also provides funding for the General Services Administration, which administers the courthouse construction program. Although the White House did not include courthouse funding in its FY 2011 budget request, the Senate-reported bill includes the final $92 million needed to complete a scaled-down Los Angeles courthouse. The House bill does not fund the Los Angeles courthouse, but does include $10 million for the Mobile, Alabama, courthouse project.

2010 Border Security Widget Enhances Availability Supplemental of Court Information

W

hen the President signed into law the Southwest Border Supplemental Funding Act in early August, the Judiciary received $10 million to address workload requirements in the courts resulting from immigration and other law enforcement initiatives. The funds will be available through September 30, 2011. Funding is included in the Act to increase the number of Border Patrol, ATF, DEA and FBI agents and prosecutors, and to construct forward operating bases along the border. The $10 million provided to the federal courts is available to address the costs of any resulting workload increases such as funding for additional magistrate judges, probation and pretrial services officers, clerks’ office staff, fees for jurors, attorneys for indigent defendants as required by law, court security, and other expenses. 4

The Third Branch n September 2010

F

inding the address of the local federal court or learning about the latest Judiciary news just got easier, thanks to widgets available on uscourts.gov. A widget is a piece of computer code that can be copied from uscourts. gov and easily embedded on any website, blog, or social networking page. Uscourts.gov currently offers two widgets: a news feed and direct access to the Court Locator directory. Embedding the widget is a simple and fast process—simply visit www. uscourts.gov/widgets and click on the “Get Widget” button. Once the widget is embedded on a webpage, there’s no technical maintenance required, and the widget will provide direct access to the Court Locator or the automatically updated U.S. Courts news feed.

United States Courts Widgets


“Herculean Effort” To Create Next Generation of CM/ECF Makes Progress

H

ard work and a deliberative, inclusive process is helping ensure that the federal Judiciary’s Case Management/Electronic Case Files system (CM/ECF), already coveted by other courts worldwide, will shine even brighter in its next generation. “This project involves all interested groups: judges and clerks at all court levels, attorney filers, probation and pretrial services offices, as well as other parts of the Judiciary,” said Judge Julie Robinson (D. Kan.), who chairs both the Judicial Conference Committee on Court Administration and Case Management (CACM) and its Next Generation subcommittee. “It is a herculean effort… a process that engages both those with technical expertise and those with experiential insight to develop a product that is designed to satisfy our functional requirements and our business processes,” she said. The Administrative Office (AO) began planning for the next generation of case management not long after CM/ECF was fully deployed. “Our appellate, district, and bankruptcy program divisions in the Office of Court Administration (OCA), working with OCA’s Technology Division, began a coordinated and comprehensive effort to define future requirements in 2009,” said Noel Augustyn, an executive sponsor for the project, along with Peter McCabe in the AO’s Office of Judges Programs and Howard Grandier in the Office of Information Technology. Begun with a 1996 prototype, CM/ ECF revolutionized federal court access by essentially opening the clerk of court’s office seven days a week, 24 hours a day to everyone—attorneys filing a case from their offices, judges accessing case files remotely, and

members of the public viewing court documents from home. The Next Generation effort is well along in its initial phase. Five groups are gathering functional requirements focusing, respectively, on clerk’s offices in district and bankruptcy courts, judges’ chambers in district and bankruptcy courts, and additional stakeholders who include CM/ECF users from within and outside the Judiciary. Simultaneously underway was a software architecture study (recently completed) of the options for the underlying technology to support the new system. And for the 12 regional appellate courts, AO staff members are updating existing functional requirements and submitting them for review by all appellate court offices. Throughout the Judiciary, there has been much to do. The bankruptcy clerks’ office functional requirements group estimates that, since October 2008, each of its 21 members has worked 640 hours on the Next Generation project. A CM/ ECF Leadership Team comprised of about 30 AO staff members from offices with a stake in the project, meets every other week to discuss the case management system and its Next Generation. “Enhanced case management, calendaring, quality control, and integration with other software applications are some of the benefits that clerks’ offices could enjoy with the Next Generation application,” said Chief Deputy Clerk Dan McAllister in the Northern District of New York, who co-chairs the district court clerk’s office functional requirements group with Operations Administrator Leigh Kinzer in the District of Kansas. In all, more than 140 federal judges and court staffers from across the nation and numerous AO

employees are involved. They have been aided by, to date, more than 4,800 comments received from other federal court personnel about the groups’ proposed business templates and functional requirements. The level of cooperation has drawn praise. “The degree of communication between the AO and the court community is phenomenal,” said Magistrate Judge Karen Klein (D. ND), a member of the Committee on Information Technology who serves on the Next Generation Project Steering Group. “The AO has developed a project structure that incorporates input from judges, clerks, Information Technology managers, and others at each step and each level of the process. Conversely, the AO has kept the participants well informed about the process.” Judge John Tunheim (D. Minn.), co-chair of the district court chambers functional requirements group, said, “The feedback and responses we have had from judges and chambers staff have far exceeded our expectations.” His co-chair, Magistrate Judge Timothy Hillman (D. MA), added: “The entire court community is actively engaged in this process.” The additional stakeholders functional requirements group includes members who represent, among others, bankruptcy administrators, federal public defenders, probation and pretrial services officers, the Department of Justice, and the American Bar Association. “We have identified more than 60 discrete groups of external users of CM/ ECF with whom we plan to interact, and we have work plans already in place for about half of them,” said Bankruptcy Judge Rich Leonard (E.D. NC), who chairs the additional stakeholders group. See Herculean Effort on page 9 The Third Branch n September 2010

5


Report Examines Terms of Supervised Release

A

new report by the U.S. Sentencing Commission shows that federal courts impose terms of supervised release in the overwhelming majority of cases, even when it is not statutorily required and regardless of the offense type or the offender’s criminal history. Nearly one million federal offenders have been sentenced to terms of supervised release since the Sentencing Reform Act authorized such terms for most offenses committed after November 1, 1987. The USSC report, “Federal Offenders Sentenced to Supervised Release,” addresses the legal issues that have arisen in that time and analyzes available data on the widespread imposition of supervised release. Under 18 U.S. C. § 3583, the report notes, “unless otherwise provided by another statute, in federal felony and Class A misdemeanor cases, a term of supervised release following any period

of imprisonment may be imposed in the sentencing court’s discretion.” Terms generally range from 1 to 5 years depending on the class of offense, although lifetime terms are authorized for some types of offenses. However, as the report also points out, the U.S. Sentencing Guidelines broadened the applicability of supervised release to virtually all felonies. Some of the legal issues that have arisen over time have concerned the setting of conditions of supervision by a court when imposing a term of supervised release. Although the court may order any conditions it considers appropriate, the condition must, among other limits, involve “no greater deprivation of liberty than is reasonably necessary.” Defendants have unsuccessfully challenged conditions imposed by the courts that require them to provide DNA samples, make restitution to a victim,

provide access to financial information, refrain from excessive use of alcohol, and avoid former associates, places, and even occupations. For non-citizens, deportation may be a special condition of supervised release. Of the 116,945 offenders sentenced to prison terms of more than one year post-Booker, where supervised release was not statutorily required, a term of supervised release was still imposed in 99.1 percent of the cases. The average term of supervised release for these offenders was 35 months. Although rates may be close to 100 percent in some categories, for all offenders given terms of supervised release between 2005 and 2009, no single type of offense was an absolute guarantee of a term of supervised release. Of the four most common offense types —drug trafficking, immigration, fraud, and Continued on next page

Criminal History Category for Offenders Sentenced to Supervised Release U.S. Sentencing Commission Data Post-Booker Fiscal Year 2005—Fiscal Year 2009 Prison Term Imposed

Supervised Release Imposed

Average Prison Term

Average Supervised Release Term

Total Cases

Number

Percent

Number

Percent

Months

Months

Total

312,982

281,320

89.9

271,429

96.5

60

41

I

144,997

118,736

81.9

113,602

95.8

45

41

II

36,841

34,203

92.8

32,523

95.1

50

41

III

48,882

47,040

96.2

45,329

96.5

54

41

IV

30,279

29,792

98.4

29,032

97.5

61

41

V

18,305

18,097

98.9

17,795

98.4

72

41

VI

33,678

33,452

99.3

33,148

99.2

119

48

Criminal History Category

SOURCE: U.S. Sentencing Commission, 2005–2009 Datafiles, FY05–FY09.

6

The Third Branch n September 2010


Constitution Day: New Resources Available

S

enator Robert Byrd, the longest serving Senator in the history of the nation, who died this year, was known for his love of the Constitution. In 2004, he helped enact the federal law that officially designates September 17 as Constitution and Citizenship Day in the United States. “I did so because I care so deeply about this precious document,” Byrd wrote. “It is a learned and dynamic document… Brilliant in its brevity, it remains extraordinary in its wisdom. It

is my hope that citizens of every State in the Union, including children, will be inspired to organize local celebrations on Constitution Day.” Under the 2004 law, all publicly funded educational institutions are required to provide educational programs about the Constitution each September 17. The Judiciary’s website at www. uscourts.gov, offers a variety of programs on the Constitution for use throughout the year, including conversations with Supreme Court justices

on the Constitution and jury service, and activities and handouts to familiarize students with the federal court system and involve them as participants in landmark court decisions. Access materials at: www.uscourts.gov/ EducationalResources.aspx. As Byrd said: “Each of us should give thanks that on September 17, 1787, our forefathers signed their names to the new Constitution and launched mankind’s most remarkable experiment in self-governance.”

firearms—which constituted more than 80 percent of all cases sentenced during this time period, the rates of imposition of supervised release ranged from 89.2 percent to 99.6 percent. Offenders convicted of simple drug possession or of antitrust offenses had the lowest rates of imposition of supervised release at 56.7 and 62.5 percent, respectively. Rates of imposition of supervised release showed little difference when comparing criminal history categories of offenders. From Criminal History Categories I through V, rates of offenders sentenced to supervised release varied from 95.1 to 98.4. However, 99.2 percent of the offenders in the highest, Criminal History Category VI, had supervised release imposed and, at an average of 48 months, they served the longest terms, compared to an average of 41 months for the other categories.

The report notes that the number of life terms of supervised release has increased steadily from 2005 to 2009. In post-Booker fiscal year 2005, life terms of supervised release were imposed for 120 offenders. By the end of fiscal year 2009, that number had increased to 743 offenders. The overwhelming majority, 82.5 percent, of these offenders, the USSC reports, were convicted of pornography/prostitution offenses. An additional 13 percent were convicted of sexual abuse. The total number of pornography/prostitution and sexual abuse cases increased in those years, but the proportion of offenders committing these offenses who were sentenced to life terms of supervised release also increased. In fiscal year 2005, 10.3 percent of pornography/ prostitution offenders were sentenced

to life terms of supervised release, but that proportion increased to 30.6 percent in fiscal year 2009. In the same time period, the proportion of sex abuse offenders sentenced to life terms of supervised release went from 9.3 percent to 20.5 percent. Finally, in 2008, the USSC study reports that the term of supervision of two-thirds (67 percent) of the 35,724 offenders under active supervised release either expired or was terminated without revocation—“successful” closures. Success rates in supervision are highly correlated with offenders’ criminal history categories at the time of the original sentencing: The lower the criminal history category, the greater the likelihood the offender will complete supervision without revocation for violation of the conditions of supervision. The Third Branch n September 2010

7


September Judicial Milestones Appointed: James A. Wynn, Jr., as

Appointed: James R. Knepp II, as

U.S. Court of Appeals Judge, U.S. Court of Appeals for the Fourth Circuit, August 10.

U.S. Magistrate Judge, U.S. District Court for the Northern District of Ohio, July 30.

Appointed: J. Michelle Childs, as U.S. District Judge, U.S. District Court for the District of South Carolina, August 20.

Senior Status: U.S. District Judge Paul C. Huck, U.S. District Court for

Appointed: Richard Mark Gergel, as

U.S. District Judge, U.S. District Court for the District of South Carolina, August 11. Appointed: Mark A. Goldsmith, as U.S.

District Judge, U.S. District Court for the Eastern District of Michigan, July 26. Appointed: Leonard P. Stark, as U.S.

Senior Status: U.S. District Judge Thomas J. Whelan, U.S. District Court

for the Southern District of California, August 15. Senior Status: U.S. District Judge Frank R. Zapata, U.S. District Court for the

District of Arizona, August 3.

District Judge, U.S. District Court for the District of Delaware, August 16.

Retired: U.S. Court of Appeals Judge Stanley F. Birch, Jr., U.S. Court of

Appointed: Marc T. Treadwell, as U.S.

Appeals for the Eleventh Circuit, August 29.

District Judge, U.S. District Court for the Middle District of Georgia, June 25. Appointed: Josephine Staton Tucker, as

U.S. District Judge, U.S. District Court for the Central District of California, August 2. Appointed: Sarah A. Hall, as U.S.

Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of Oklahoma, August 11. Appointed: Hanly A. Ingram, as U.S.

Magistrate Judge, U.S. District Court for the Eastern District of Kentucky, July 26. Appointed: Kenneth G. Gale, as U.S.

Magistrate Judge, U.S. District Court for the District of Kansas, August 2. Appointed: Jonathan Goodman, as U.S.

Magistrate Judge, U.S. District Court for the Southern District of Florida, July 23.

8

the Southern District of Florida, August 31.

The Third Branch n September 2010

Retired: U.S. Senior Judge James M. Rosenbaum, U.S. District Court for

the District of Minnesota, August 25. Resigned: U.S. District Judge Jeanne E. Scott, U.S. District Court for the

Central District of Illinois, August 1. Deceased: U.S. District Judge Thomas M. Golden, U.S. District

Court for the Eastern District of Pennsylvania, July 31. Deceased: U.S. District Judge William C. Stuart, U.S. District Court for the

Southern District of Iowa, August 12. Deceased: U.S. Senior District Judge Howard B. Turrentine, U.S. District

Court for the Southern District of California, August 20.

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 James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli, AO Kevin Scott, AO John Golmant, AO

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

JUDICIAL BOXSCORE As of September 1, 2010 Courts of Appeals Vacancies............................................ 20 Nominees........................................... 10 District Courts Vacancies............................................ 84 Nominees........................................... 29 Courts with “Judicial Emergencies”..................... 49

Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx


By the Numbers—Seasonality and Bankruptcy Filings

“Herculean Effort” To Create Next Generation of CM/ECF Makes Progress continued from page 5

“Our efforts have been met by both enormous appreciation that we are asking for input and any number of creative suggestions that we are feeding back into the process.” Improvements that flow from those creative suggestions eventually will benefit the Judiciary’s popular Public Access to Court Electronic Records service, which provides hundreds of thousands of users with remote, read-only access to documents in CM/ECF. As envisioned, Next Generation will allow for integration and communication

Monthly Bankruptcy Filings, July 2008–June 2010 200,000

Actual Filings Trend

150,000 100,000 50,000

Jun-10

May-10

Mar-10

Apr-10

Jan-10

Feb-10

Dec-09

Oct-09

Nov-09

Sep-09

Jul-09

Aug-09

Jun-09

Apr-09

May-09

Feb-09

Mar-09

Jan-09

Dec-08

Oct-08

Nov-08

Sep-08

Jul-08

0 Aug-08

T

he total number of bankruptcy filings has steadily increased in the federal courts every year since 2007. But when the Administrative Office reports 149,319 filings in April 2010 and 9 percent fewer filings the following month, does this decline indicate an actual downward trend? To answer this question, first consider the seasonal nature of bankruptcy filings. Many economic phenomena exhibit seasonal behavior. For example, retail sales typically increase during the Christmas season and then decline afterward. The behavior of bankruptcy filings across time exhibits its own seasonal patterns. On a year-to-year basis, filings tend to be higher in March and April and lower in November, December, and January. Looking at bankruptcy filings on a month-to-month basis without taking into account the broader seasonal variation could lead to erroneous conclusions about the direction of bankruptcy filings in the federal courts.

The figure above depicts actual filings along with filings that have been adjusted to account for their seasonal characteristics. The adjusted counts reveal the trend. As the figure suggests, the overall trend has been increasing despite the April-to-May declines. The adjusted counts were obtained through application of a seasonal adjustment program developed by the U.S. Department of the Commerce,

Bureau of the Census. The program calculates the relative weight of each month (i.e., the degree to which each month regularly contributes to an annual total) based on historical monthly behavior and then adjusts each month’s count accordingly. With respect to bankruptcy filings, the March and April counts were adjusted downward, and the November, December, and January counts were adjusted upward.

of data across the Judiciary for broad search functionality. The system will share public case information freely throughout the court system, and efficiency will be increased by eliminating redundancies in data entry for pretrial services, probation, and clerks’ offices. As functional requirements are being gathered and assessed, a synchronization effort is underway to review requirements that overlap or are duplicated within a court type (for example, within judicial chambers and the clerk’s office) or across two or more court types. Redundant elements might be merged into a new single requirement. The synchronization process also will address inconsistencies among requirements and identify gaps.

A project steering group, which is coordinating the functional requirements gathering phase, ultimately will review the synchronization effort as well. This first phase is expected to continue through February 2012, before Phase II— design, development, testing, and implementation—begins. “More important than a firm deadline, however, is that we ensure that we identify all functional requirements, identify and address all affected policies and policy issues, and incorporate best practices where appropriate,” Robinson said. “The current CM/ECF system is not broken. We have the benefit of time to develop the new system unencumbered by any immediate crises or needs.” The Third Branch n September 2010

9


interview

Committee Addresses Issues of Federal and State Court Jurisdiction

J

udge Janet Hall has chaired the Judicial Conference Committee on FederalState Jurisdiction since 2007. She was appointed to the U.S. District Court for the District of Connecticut in 1997.

Q: The Committee on FederalState Jurisdiction is comprised of federal judges and four state supreme court chief justices. How does the addition of the state court representatives assist the work of the Committee? A: There has been a fine tradition of service by state chief justices to our committee. They bring years of experience and a different perspective. In my experience, they’re of great assistance in identifying issues—or tensions—that are inherent in our system of federalism and also in identifying areas that are of mutual concern to the state and federal courts. Having state chief justices as members facilitates collegial relationships that I believe provide us a better understanding of the unique needs of, and challenges facing, state courts.

Q. We often hear the concept of “federalism” discussed in striking the balance for appropriate state and federal jurisdiction. How does your Committee apply that concept in its work? A: Our Committee’s primary responsibility is to consider the proper role of the federal courts relative to the state court systems. We start with the premise—which is a principal one for all federal judges— that the federal courts have limited 10

The Third Branch n September 2010

jurisdiction. Our court system works because the federal system respects the boundaries between, and the unique roles of, the federal and state courts. What exactly are the proper boundaries? Well, I don’t want to say that, ‘we know it when we see it,’ but it is often a question of the context in which the question is asked. Let’s say Congress is considering altering federal jurisdiction, typically by adding to it. We would consider such things as whether this has been an area traditionally of state concern; whether there is a need for a national or federal approach; the potential impact on the federal docket if we were to shift causes of action from the state to the federal courts; and, lastly, where the federal Judiciary does have a particular expertise, does that make it more appropriate for certain actions to be in federal court? Obviously, our Committee’s responsibility is to discuss and address the issues that are raised by jurisdictional questions and then to make recommendations to the Judicial Conference. In the end, of course, it is Congress’ responsibility to decide how best to allocate jurisdiction between the federal and state courts.

Q. What are the challenges for the federal courts? A: I would say one of the areas that presents the greatest challenge for us going forward is in the area of immigration. Although the 111th Congress has provided increased funding for border security, prospects for other legislation appear uncertain. As a Committee, however, we have been monitoring proposals and outlines of legislation, as well as reviewing the different views

Judge Janet Hall (D. Conn.)

expressed by members of Congress and the Administration, to assess their potential impact on the federal courts. Obviously, some of the proposals will involve other Judicial Conference Committees. For example, some proposals include increased penalties for immigration-related violations. The Criminal Law Committee would be interested in those provisions. Also, some of the proposals include suggestions for adjusting the legal status of the 10-12 million immigrants who are currently in this country without legal status. Given the number of individuals who may seek to adjust their status, any provision for judicial review of decisions adverse to applicants in that program could have a very substantial impact on the federal courts. This would be of concern to several Judicial Conference committees. At the same time, we recognize the importance of preserving the role of the federal courts in ensuring due process with respect to immigration cases.

Q. What do the state supreme court chief justice members of your committee identify as the greatest issues of interest to the state courts?


A: At every Committee meeting, the state chief justices present a report in which they address issues they want to bring to the attention of the federal courts. One area of continuing concern to them is access to the courts. I would say another area of great interest is what they view as a threat to the balance of federalism, usually through preemption by Congressional action. The financial reform legislation raised concerns among the states on the issue of federalizing standards for behavior or performance of boards of directors and other aspects of corporate governance—issues that, in their view, have traditionally been the province of state law and state courts. Another area would be the need to safeguard judicial independence, which is an issue the federal Judiciary shares. The state chief justices often deal with that issue, however, in connection with problems raised by state judicial elections. They’re struggling with the demand for interpreter services as the diversity of the population increases. We worked with Administrative Office staff responsible for the federal contract court interpreter program to encourage the exchange of information between federal and state courts regarding qualified interpreters. It’s a very simple step, but it has been of benefit to the state courts.

Q. Are there other ways that your Committee facilitates communication with the state courts and their support organizations? A: Judge Ron Gilman from the Sixth Circuit and I serve as representatives of our Committee to the Conference of Chief Justices (CCJ), the national organization of the state supreme courts chief justices. Together with the Executive Committee representative, Judge Rod Sippel from the Eastern District of

Missouri, we attend the twice-yearly CCJ meetings. We participate in the general sessions and attend their committee meetings. I also give a report at the Board of Directors meeting on the work of the Federal-State Jurisdiction Committee. These meetings are an excellent opportunity to discuss areas of interest and importance to the federal Judiciary, to share information, and to engage in conversations with many chief justices on areas of mutual concern. There’s also the National Center for State Courts, which provides administrative support to the CCJ, as well as research and information services to state courts. They provide educational and organizational materials to the CCJ and to the administrators of the state courts. We share information with the Center about initiatives affecting federal and state courts, such as those initiatives related to judicial administration. We benefit greatly from that relationship.

Q. Can you identify particular efforts being undertaken in cooperation with the state courts? A: One of our responsibilities, as a Committee, is to encourage cooperation between the federal and state judicial systems. We have initiatives in this area at both the national and state levels. We are seeking to facilitate discussion of issues which can be areas of tension between federal and state courts, such as capital habeas corpus litigation. We’re respectful of the integrity of the state court system and their role in the review of state court convictions, but we also recognize the role of the federal courts in this area. I should also note that state-federal judicial councils have been established in several states. In my home state of

Connecticut, the state chief justice and I began such a council. These councils provide a forum for federal and state judges to meet, to exchange ideas, and to address any area of friction or tension between their court systems. I think they’re really a wonderful mechanism to improve relations between the state and federal courts and to grow ideas that will improve the justice systems. Our Committee has begun an effort to facilitate the exchange of ideas among the various councils for programs or topics of interest. We also provide a brief report after the Judicial Conference meets on the activities of the FederalState Jurisdiction Committee.

Q. Legislation has been introduced in Congress–the Federal Courts Jurisdiction and Venue Clarification Act– that was the result of the work of the Committee on FederalState Jurisdiction. Could you describe that legislation and how it evolved? A: This bill is really the outcome of several years of work trying to identify issues and areas where there could be uncertainty or omissions in statutory language. The current version proposes changes in removal and remand, diversity jurisdiction, venue and transfer. We sought comments from professors whose specialty is federal courts and jurisdiction and also relied upon much of the work of the American Law Institute in this area. There has also been outreach to many interest groups in an effort to build a consensus around the proposals. Enactment of the legislation could help to control litigation costs and make it easier for the judge to reach the merits of the case without wasting time addressing See Interview on page 12 The Third Branch n September 2010

11


FIRST CLASS MAIL POSTAGE & FEES

PAID

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

U.S. COURTS

PERMIT NO. G-18

FIRST CLASS OFFICIAL BUSINESS PENALTY FOR PRIVATE USE $300

interview difficult and, in many cases, unnecessary jurisdictional issues. It really is important in improving the litigation of disputes, and it can make a difference in the day-today practice of law in the federal courts. We hope to see some action on these changes fairly soon.

Q. How do the issues in your committee intersect with the work of other Judicial Conference committees? A: I think it’s a function of our area of responsibility. For example, a year or two ago, the Advisory Committee on Evidence Rules proposed a new Rule 502, which would alter the attorney-client and work product privilege with respect to inadvertent disclosures. The initial proposal raised a serious federalism issue

continued from page 11

because it specified the standard as to how the privilege would be applied within both the federal and the state court systems. Our Committee relayed its concerns to the Evidence Rules Committee. In the end, there were some modifications made to the proposed rule which substantially addressed these concerns. As another example, because our Committee has responsibility for Pacific Islands issues, we recently reviewed a legislative proposal for conferring federal criminal jurisdiction on the local court of American Samoa. We worked with the Defenders Services Committee, the Criminal Law Committee, and the Pacific Islands Committee of the Ninth Circuit, which does the original hard work in this area.

Q. Service on Judicial Conference committees requires a

commitment of time over and above a judge’s “day job” of adjudicating cases—what would you say to judges who are considering service on a Conference committee? A: Seize the opportunity! The FederalState Jurisdiction Committee has an enormous volume of material that has to be absorbed and reviewed—some of which I’ve never had occasion to touch as a lawyer, a citizen, or a judge. This Committee provides terrific perspective on the federal Judiciary and on the workings of the Judicial Conference. It’s a great opportunity to be of service to the federal Judiciary, but it has also been very enjoyable for me, serving as a member and now as chair of this Committee. I love it.

2010-09 Sep - The Third Branch  

Newsletter of the U.S. Courts

Advertisement