State–Federal Judicial Observer

NEWS AND COMMENTARY OF INTEREST TO THE STATE AND FEDERAL JUDICIARY

A joint publication of the Federal Judicial Center and the National Center for State Courts • Number 6 • July 1994

the preparation of guidelines for state and

federal judges to contact each other for

cooperation and coordination on administrative and adjudicative matters. David

Halperin (Cal. Admin. Office of Courts)

was assigned responsibility for communication with the National Judicial Council of

State and Federal Courts to suggest the

development of a national registry of court

interpreters.

HAWAII—The Hawaii State–Federal Judicial Council considered the issue of certification of state law questions by federal

courts at its meeting on May 19, 1994, in

Honolulu. Other items on the agenda were

public access to the clerks’ offices, video

conferencing between courts, the sharing

of courtroom facilities and other space sharing ideas, cooperative use of state and federal court libraries, and joint use and certification of interpreters.

IOWA—Des Moines was the site of the

annual meeting of the Iowa State–Federal

Judicial Council on September 14, 1993.

Members of the council are Judge David R.

Hansen (U.S. 8th Cir.), Chief Judge Charles

R. Wolle (U.S. S.D. Iowa), Chief Judge

Michael J. Melloy (U.S. N.D. Iowa), Chief

Justice Arthur A. McGiverin (Iowa Sup.

Ct.), Justice Louis A. Lavorato (Iowa Sup.

Ct.), and Judge Richard J. Vogel (Iowa 8th

Jud. Dist.). The council discussed the following topics: scheduling conflicts, the Iowa

Supreme Court study on gender and race

by Charles Campbell

National Center for State Courts

Increasing numbers of criminal cases are

being filed in state and federal trial courts,

according to a new statistical report issued

by the National Center for State Courts.

Felony filings, which form the largest

part of criminal caseloads in general jurisdiction state courts, show the greatest increase—more than 65% since 1985. Juvenile caseloads have risen by 35%, civil

caseloads by 30%, and criminal caseloads

by 25% since 1985. The figures are for

1992, the most recent year for which nationwide figures are available.

Other findings of the study (using 1985

as the base year) include the following:

The creation of two new state–federal

judicial councils—one in Arizona, the other

in the Commonwealth of the Northern

Mariana Islands—highlighted state–federal

judicial council activity during the first part

of the year.

At an organizational meeting held in

Phoenix in February, state and federal judges

from Arizona followed up on orders signed

last October in both the Supreme Court of

Arizona and the U.S. District Court for the

District of Arizona. The orders committed

both systems to the formation of a council.

Arizona Chief Justice Stanley G. Feldman

and U.S. District Judge Paul G. Rosenblatt

(D. Ariz.) were instrumental in the formation of the new council, which consists of

four state judges and five federal judges.

The first state–federal judicial council in

the U.S. territories was formed in the Commonwealth of the Northern Mariana Islands at a historic gathering in Saipan on

January 24, 1994, when seven commonwealth judges and two federal judges

adopted a formal council charter. Chief

Justice Jose Dela Cruz (CNMI Sup. Ct.)

was elected chairman of the new council.

State Councils

CALIFORNIA—The California State–

Federal Judicial Council, at its meeting on

April 7, 1994, in Los Angeles, formally

recommended adoption of a process for

certification of state law questions by the

federal courts. Catherine Lowe, executive

director of the California Center for Judicial Education and Research, reported on

opportunities for state–federal cooperation

in judicial education. Other reports received

by the council included the following: capital case habeas corpus, by Judge Alexander

H. Williams III (Cal. Super. Ct.); the structure of state–federal councils, including

regional and metropolitan councils, by

Judge Alicemarie H. Stotler (U.S. C.D.

Cal.); coordination of large cases and resources, by Judge Fern M. Smith (U.S.

N.D. Cal.); public confidence in the judiciary, by Justice William D. Stein (Cal. Ct.

App.); and long-range planning by Judge

William R. Ridgeway (Cal. Super. Ct.).

Chief Judge J. Clifford Wallace (U.S. 9th

Cir.) gave a special report on the mission of

the federal courts.

The council previously met in San Diego

on October 7, 1993. Judge Herbert B.

Hoffman (Cal. Super. Ct.) and Judge Fern

M. Smith (U.S. N.D. Cal.) proposed that

both state and federal courts adopt rules

requiring attorneys to disclose to judges the

existence of all related or parallel cases

filed in both systems. They also proposed

• Criminal filings are up substantially in

both state and federal courts, although the

growth in state courts (39%) is nearly double

that in federal courts (22%).

• Civil filings in state courts of general

jurisdiction have grown by 21% and have

shown steady growth, while civil filings in

the U.S. district courts have declined by

16%.

• On average, a judge in a state court of

general jurisdiction processes more than

three times as many civil and criminal case

filings as a U.S. district court judge.

• Domestic relations cases, which form

the largest part of the state court civil

caseload, are the most rapidly increasing

type of civil case. They have increased by

more than 43% since 1985.

• General civil cases (tort, contract, and

real property rights), the

second-largest portion of

the state court civil

caseload, are at the heart

of the debate over reform

of the civil justice system.

Although filings for these

cases declined in 1992,

they’ve shown a mixed

trend since 1985.

• The number of new state

court tort cases, despite the

slight decline in 1992, has

remained relatively constant since 1985.

How are the courts keeping up? Three-fourths of

state general jurisdiction

trial courts could not keep

up with the flow of new

civil and criminal cases in

1992—these courts received more cases than

Courts Struggle with Rising Caseloads;

State, Federal Criminal Cases Increase

See ROUNDUP, page 4

National Roundup of State–Federal

Judicial Council Meetings and Activities

National State–Federal Council Endorses

Resolution Opposing Federal Crime Bill

At its March meeting in Williamsburg,

Va., the National Judicial Council of State

and Federal Courts endorsed a conference

of state chief justices’ resolution asserting

that federal omnibus crime legislation would

“result in the indiscriminate federalization

of crimes” and cause “needless disruption

of effective state and local [law] enforcement efforts.” The resolution, which the

chief justices adopted in February, was directed primarily at the Senate version of

H.R. 3355, the omnibus crime bill that has

passed the Senate and is now in conference

committee (to resolve differences with the

crime bill passed by the House, H.R. 4092).

The resolution, stating four specific reasons why proposed crime bills in the Congress are “flawed,” strongly opposed “federal action which, contrary to the principles

of federalism and historical experience,

would have the pernicious effect of federalizing state criminal law and procedure.”

In other business at the meeting, Cynthia

Lebow, senior counsel for policy of the

civil division of the U.S. Department of

Justice, reported on the Attorney General’s

initiatives on legal reform. Lebow said that

the Attorney General “wants to get state

and federal courts to work together.” She

said one of the four working groups in the

Department of Justice deals with federal–

state relations.

The council also heard reports on:

• Habeas corpus proceedings in state and

federal courts, presented by Victor E.

Flango, director of court research at the

National Center for State Courts (see related story on p. 3); and

• Opportunities for interstate and state–

federal cooperation in the use of court interpreters, presented by William A. Hewitt,

senior research associate at the National

Center for State Courts.

Hewitt said that his research revealed

that problems relating to interpreter services are beyond affordable solutions at the

individual trial court level, and that the

solution lies in the “establishment of programs and resources that can be shared” on

a state and regional level by both state and

federal courts.

The use of court interpreters has become

a major issue because of trends in immigration and cultural diversity. Hewitt reported

that 12% of the total population of the

United States in 1990 consisted of persons

who do not speak English at home, and that

the numbers are increasing. ❏

New State–Federal Judicial Councils

Formed in Arizona, Northern Marianas

Members of the new state–federal judicial council of the Commonwealth of the

Northern Mariana Islands. Seated, from left: CNMI Supreme Ct. Assoc. Justice

Ramon G. Villagomez; CNMI Chief Justice Jose S. Dela Cruz; Chief Judge Alex R.

Munson (U.S. D. N.M.I.). Standing, from left: CNMI Judges and Justices

Alexandro C. Castro, Miguel S. Demapan, Marty W. K. Taylor, Pedro M. Atalig,

and Edward Manibusan; and Judge William C. Canby, Jr. (U.S. 9th Cir.).

See CASELOADS,

page 2

The charter was drafted by Chief Justice

Dela Cruz and Chief Judge Alex R. Munson

(U.S. D. N.M.I.).

Judge Munson discussed possible computer assistance and other education programs for commonwealth judges.

At the organizational meeting of the new

Arizona council, the members voted to

invite a federal appellate judge to be a

member. Prospective agenda items for the

next meeting included prisoner litigation,

scheduling conflicts, bankruptcy stays,

state–federal cooperation in drug enforcement cases, and consistency between state

and federal rules of procedure. ❏

Inside . . .

Obiter Dictum: Complex Litigation and

Judicial Federalism 2

Technology Conference 2

Capital Case Symposium 3

Twenty-One Issues that Cause Habeas

Reversals 3

NCSC Study 3

Pro Se Prisoner Cases 3

All U.S. district courts

Criminal

Civil

Bankruptcy courts

(Federal courts also disposed of 93,077 petty offenses and 

misdemeanors; the 475 magistrate judges handled these

cases and provided substantial assistance to district judges

with their criminal and civil caseloads.)

All state trial courts

Criminal

Civil

Juvenile

Traffic

* U.S. district court judges hear both civil and criminal 

 cases. The 554 figure counts each judge once.

** The figure is total state court trial judges. Not all judges

 hear all kinds of cases, and thus the per judge filings

 figure is a composite.

Source: National Center for State Courts, 1994, and 1992

Annual Report of the Director of the Administrative Office of

the U.S. Courts.

Filings

48,366

230,509

977,478

Filings

13,245,543

19,707,374

1,730,721

59,102,861

Active

Judges

*554

*554

294

Judges

**27,874

**27,874

**27,874

**27,874

Filings 

Per Judge

87

416

3,325

Filings

Per Judge

475

707

62

2,120

Aggregate Caseloads: Federal and State Courts, 1992

(Different ways of classifying cases make precise

comparisons impossible.)
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 6 • July 1994

OBITER DICTUM

Complex Litigation Is Issue for Principled Federalism

the accident. However, a conflicts conundrum could arise from provisions allowing

the court to designate in exceptional cases

that different states’ laws would govern

different parties and different issues. See,

e.g., In Re Air Crash Disaster Near Chicago,

644 F.2d 594, 610–33

(after meticulous conflicts analysis, the court

urged Congress to enact

uniform conflicts law for

airline disasters). The

simple way to eliminate

that problem would be

for Congress to designate the state law of the

place of injury as the controlling substantive law.

See Thomas M. Reavley

& Jerome W. Wesevich,

An Old Rule for New Reasons: Place of

Injury as a Federal Solution to Choice of

Law in Single-Accident Mass-Tort Cases,

71 Tex. L. Rev. 1 (1992).

Legislation Is a Workable Solution

Enactment of this legislation, with the

designation of the controlling substantive

law, would avoid duplicitous litigation, facilitate settlement, control costs, expedite

disposition, and promote consistency. It

would be a big step toward the development of workable solutions for the problems of complex litigation. It would provide a forum for the occasional airline,

bridge, or chemical plant disaster—and it

would afford courts the means to cope with

a domestic Bhopal or Chernobyl.

The American Law

Institute (ALI) has proposed a complex litigation statute under which

civil actions involving

one or more common

questions of fact could

be transferred to a federal district court (or to

a state court) for pretrial or final disposition.

Cases could also be removed from state courts

to the consolidated proceeding. The ALI

balked at providing for

federal substantive law

to solve the “choice of

law” problem, but it did

suggest resort to state law according to a

federal statutory choice of law code.

Whether that course represents timidity in

the face of entrenched defense of expertise,

or realistic appraisal of the chances of enactment, will depend on the viewer’s vantage point. See Linda S. Mullenix, Federalizing Choice of Law For Mass-Tort Litigation, 70 Tex. L. Rev. 1623 (1992).

 My own view is that the courts’ experiences with asbestos, MER/29, Agent Orange, and Dalkon Shield litigation, as well

as the single accident cases—such as those

arising from the Kansas City skywalk collapse, large commercial airplane crashes,

and similar events—should encourage the

approval of a procedure for a less costly and

far more efficient and just resolution of

complex litigation. The single accident vehicle is the place to begin that resolution. ❏

“The courts’ experiences [with asbestos

and other similar types

of cases] should encourage the approval

of a procedure for a

less costly and far

more efficient and just

resolution of complex

litigation. The single

accident vehicle is the

place to begin that

resolution.”

A note to our readers

The State–Federal Judicial Observer welcomes comments on articles appearing in it and ideas

for topics for future issues. The Observer will consider for publication short articles and

manuscripts on subjects of interest to state and federal judges. Letters, comments, and articles

should be submitted to Interjudicial Affairs Office, Federal Judicial Center, Thurgood Marshall

Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC 20002-8003.

NCSC Technology Conference Expects

2,500 Judges, Court Administrators

The National Center for State Courts will

present the Fourth National Court Technology Conference (CTC4) at the Opryland

Hotel in Nashville, Tenn., from October

12–15, 1994.

More than 2,500 judges, court administrators, court managers, and court technologists are expected to attend the

conference’s education programs, state-ofthe-art demonstrations, and court technology exhibitions.

Topics to be covered in the various sessions will include:

• new technology for bench and chambers—tools to help judges manage case

notes and prior rulings, communicate with

colleagues, and ensure consistent decisions;

• validity of scientific evidence—exploration of the effects of recent Supreme

Court and other court decisions and

evidentiary principles judges can apply

during trials;

• court rules related to technology—identification and transformation of restrictive

rules to promote the use of new technologies in the court; and

• legal implications of courtroom technology—how courts have addressed the

broad implications of video court records,

remote appearances, and electronic evidence.

At the CTC4 exhibition, participants can

also interact with representatives from over

100 companies who will demonstrate a full

range of court technologies—imaging,

video, multimedia, information systems,

legal research, security, and products to

assist individuals with disabilities. The exhibition will be the largest one of its kind

ever assembled.

For further information, interested persons should call the CTC4 information line,

(804) 259-1850. ❏

by Thomas M. Reavley

Senior Judge (U.S. 5th Cir.)

The allocation of jurisdiction between

state and federal courts is a policy question

for Congress. Traditionally, the jurisdiction of federal courts has largely been

concerned with national

interests. It is consistent

with that policy to consolidate in federal courts

complex litigation consisting of multiple cases in

multiple states by multiple

parties. By consolidating

such cases for final disposition in one federal court,

costs and delay would be

lessened, and the best interests of all parties would

be served.

Congress has considered such a jurisdictional change for more than 20 years. The

successive chairs of the House Judiciary

Subcommittee on Intellectual Property and

Judicial Administration—Robert W.

Kastenmeier and then William J. Hughes—

both introduced legislation that passed the

House in 1990 and 1991. Unfortunately, the

legislation failed to get much Senate interest and has not been revised in the current

Congress.

Federal Jurisdiction for Single

Large Accidents

H.R. 2450, the Multiparty, Multiforum

Jurisdiction Act of 1991, however, is still a

good basis for further efforts. This bill

would create federal jurisdiction for litigation

arising from a single accident that kills or seriously injures at least 25

people. It would require

minimal diversity (i.e.,

at least one defendant

and one plaintiff must

be citizens of different

states) and defendant/

event dispersion (the

residences of defendants

and the location of the

accident must involve in

some combination more

than one state). The cases

would be consolidated

by order of the U.S. Judicial Panel on Multidistrict Litigation and transferred to a federal court for resolution of all pretrial matters, determination of liability, and the assessment of any punitive damages. If the

transferee court adjudged any defendant

liable, the transferee court could return the

action to the court where the action was

originally filed for any necessary compensatory damage assessments, or the transferee court could retain the actions for final

disposition.

Choice of Law a Problem

Choice of law is usually a problem in

consolidated diversity cases. H.R. 2450

would have required the transferee court to

analyze several factors and designate a

single state whose substantive law would

govern all aspects of all claims arising from

William W Schwarzer, Director, Federal Judicial Center

Russell R. Wheeler, Deputy Director, Federal Judicial Center

Larry R. Sipes, President, National Center for State Courts

EDITORIAL STAFF

James G. Apple, Chief, Interjudicial Affairs Office, Federal Judicial Center

Charles Campbell, National Center for State Courts

EDITORIAL ADVISORY BOARD

Justice Susan P. Graber, Oregon Supreme Court; Chief Justice Thomas J. Moyer, Supreme Court of Ohio;

Judge Sandra Mazer Moss, Court of Common Pleas of Philadelphia; Judge Alexander H. Williams III,

Superior Court of Los Angeles County; Senior Judge Peter T. Fay, U.S. Court of Appeals for the Eleventh

Circuit; Senior Judge Monroe G. McKay, U.S. Court of Appeals for the Tenth Circuit; Judge Robin J.

Cauthron, U.S. District Court, W. D. of Oklahoma; Chief Judge Michael A. Telesca, U.S. District Court, W.

D. of New York; Mr. Robert M. White II, Washington, D.C.; Professor Daniel J. Meador, University of

Virginia Law School, Charlottesville, Virginia

Published in the Interjudicial Affairs Office, Federal Judicial Center, One Columbus Circle,

N.E., Washington, DC 20002-8003; phone (202) 273-4161, fax (202) 273-4019

The opinions, conclusions, and points of view expressed in the State–Federal Judicial Observer

are those of the authors or of the staffs of the Interjudicial Affairs Office of the Federal Judicial

Center and the National Center for State Courts. On matters of policy, the Federal Judicial Center

and the National Center for State Courts speak only through their respective Boards.

J U D I C I A

F

L

E D E R A L

C E N T E R

State–Federal Judicial Observer

a joint publication of the

Federal Judicial Center and the National Center for State Courts

CASELOADS, from page 1 tracks national trends in state court caseloads by gathering and analyzing comparable information from all 50 states and the

District of Columbia. The project is funded

by the State Justice Institute.

For more information on these findings,

contact Brian J. Ostrom, director, Court

Statistics Project, NCSC, phone (804) 253-

2000, or Kriss K. Winchester, manager,

Communications Services, NCSC, phone

(804) 259-1840. The report (R-154) is available for $6.95 plus $2.25 shipping and

handling from Carrie Clay, National Center

for State Courts, P.O. Box 8798,

Williamsburg, VA, 23187-8798, phone

(804) 259-1812, fax (804) 220-0449. ❏

they cleared from their dockets.

State appeals courts are also feeling the

strain: The number of appeals filed in state

courts reached a new high in 1992, with

259,000 filings, a 6% increase over 1991.

Four-fifths of intermediate appellate courts

and two-thirds of courts of last resort were

unable to keep pace with the new filings.

These and other findings are reported in

State Court Caseload Statistics: Annual

Report 1992, published by the Court Statistics Project, a joint project of the National

Center for State Courts (NCSC) and the

Conference of State Court Administrators

(COSCA). The Court Statistics Project

“Why Judges Resign” Is Subject of Study by

Federal Judicial Center History Office

A study issued late last year by the Federal Judicial History Office of the Federal

Judicial Center reports that only 7% (a total

of 189) of all federal life-tenured judges

who served between 1789 and 1992 resigned for reasons other than health or age.

Another 4% (101) resigned for reasons

of health or age.

Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992 examines resignations among the 2,627 men and

women who have served as federal judges

during the 203-year history of the federal

courts. The study, undertaken at the request

of the National Commission on Judicial

Discipline and Removal, was prepared by

Emily Field Van Tassel, former FJC Associate Historian.

 The two most frequent reasons cited for

judicial resignation (other than health or

age) were return to private practice of law

and appointment to other office. Other categories of resignations include inadequate

salary, allegations of misconduct or misbehavior, dissatisfaction, loyalty to the Confederacy, seeking elected office, other employment, impeachment, impeachment and

conviction, military service, and one oddity

(relinquishment of court appointment to a

brother).

Of particular significance is the low number of judges who resigned after public

allegations of misbehavior: only 20. In addition, only seven federal judges have been

impeached and convicted, and two resigned

following impeachment.

Copies of the study may be obtained by

writing to Information Services, Federal

Judicial Center, Thurgood Marshall Federal Judiciary Building, One Columbus

Circle, N.E., Washington, DC 20002-8003,

or calling (202) 273-4153. ❏
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 6 • July 1994 • 3

California State, Federal Judges Discuss Errors that Cause Habeas Problems

One of the significant

features of a day-long

symposium on handling death penalty cases

was a review of common errors in state

courts requiring reversal of conviction or at

least a hearing. Senior

Judge Arthur L.

Alarcon (U.S. 9th Cir.)

reviewed 21 recurring

federal constitutional

claims by state prisoners that require an

evidentiary hearing in

federal court because

sufficient evidence

does not appear in the

trial record to resolve the claim by a review

of the record (see article at left).

More than 40 California state and federal

judges participated in the symposium held

in Los Angeles in April. They also exchanged ideas for more effective cooperation and coordination between the two court

systems in ensuring the fair and efficient

management of capital cases. The symposium was the second such conference sponsored by the California State–Federal Judicial Council with financial assistance from

the Federal Judicial Center.

The symposium also included discussions of recent legal developments in the

area of habeas corpus, a review of procedures for resolving federal constitutional

questions in state trial courts, and small

group discussions featuring hypothetical

cases.

Four panel discussions and one small

group breakout session identified the following issues as principal areas for state–

federal cooperation or coordination:

• Recruitment, training, and compensation of counsel;

• Cost control of investigations to exhaust state remedies;

• Issuance of written reasoned statements

for writ denials;

• Determination of the need for

evidentiary hearings in federal court;

• Increased training of state court judges

for greater uniformity and consistency in

record preparation at the trial level;

• Developing alternative methods for

capital case representation, such as a federal defender office devoted exclusively to

capital representation; and

• Importance of appropriate deference to

state court determinations where reasons

are given.

Participants in the symposium included

21 federal judges, principally from the central and eastern districts of California; 19

state superior court judges, principally from

Los Angeles and surrounding counties; and

9 court staff and law clerks. Chief Justice

Malcolm M. Lucas (Cal. Sup. Ct.) and

Chief Judge J. Clifford Wallace (U.S. 9th

Cir.) participated as faculty members. ❏

California Chief Justice Malcolm Lucas addressed the

second Capital Case Symposium in Los Angeles in April.

NCSC Study Yields New Findings About

Federal Habeas Corpus Review of State

Convictions; Most Petitions Not Granted

by Victor Eugene Flango

Research Director,

National Center for State Courts

A recently published National Center for

State Courts study sheds light on the longstanding controversy over the scope of federal habeas corpus review of state court

convictions. The study was funded by the

State Justice Institute.

This intensive four-state inquiry shows

that federal courts grant very few petitions

from state prisoners. This finding may

weaken the argument that federal review is

necessary to ensure that state courts protect

prisoners’ constitutional rights.

“Snapshot” Study

The “snapshot” study of 1,835 state and

1,626 federal petitions terminated in 1990

or 1992 included petitioners raising their

first habeas claims as well as those who had

previously filed multiple petitions.

Overall, the study shows that a relatively

small—and declining—proportion of prisoners are filing habeas petitions, but the

ones who do file tend to file multiple petitions in both state and federal courts. The

study shows that only prisoners sentenced

to relatively long prison terms have the

time to complete the procedural steps for

filing a habeas corpus petition. Overwhelmingly, these are prisoners who are serving

lengthy sentences after being convicted of

serious offenses by a jury.

Petitions Require Significant Time

Although petitions do not comprise a

large proportion of court caseloads and do

not require a disproportionate amount of

judicial time according to the study, they do

demand significant time from pro se law

clerks and staff attorneys.

The study also suggests the following:

• A petitioner stands the best chance of

having a habeas petition granted the first

time he or she presents the petition to a state

court. Subsequent petitions are less likely

to be granted, regardless of whether they

are filed in state or federal court.

• Efforts to modify habeas procedures

should distinguish clearly between capital

and noncapital cases. The study notes that

analysis of death penalty habeas procedures often creates debate over the death

penalty itself and thus clouds analysis of

habeas procedures.

• Unlike most habeas petitions, which are

filed pro se, virtually all capital prisoners

have counsel to prepare their petitions.

• Even though prisoners convicted of

capital offenses tend to raise multiple claims

in multiple petitions in multiple levels of

both state and federal court, they are not

much more likely to have their petitions

granted. Even counting court acceptance of

any one claim in any one petition in any one

court as a success, the petitioner success

rate is very low.

The National Center for State Courts has

published a monograph containing the research results. For more information, contact Victor E. Flango, director of court

research, National Center for State Courts,

300 Newport Ave., P.O. Box 8798,

Williamsburg, VA 23187-8798; phone (804)

253-2000, fax (804) 220-0449. ❏

Pro se prisoner litigation was a major

focus of discussion at the May meeting of

the U.S. Judicial Conference Committee on

Federal–State Jurisdiction

in Washington, D.C.

The committee received

a report stating that state

prison inmates filed 32,369

suits in federal courts in

1993, compared with 2,030

such suits in 1970. The prisoner cases “amounted to

12.1% of all suits, both civil

and criminal, filed in the

federal courts” last year.

The report also included

an estimate that the number of hours federal judges

are spending a year on pro

se prisoner cases from state

prisons “may amount to the

time equivalent of 30 to 50

federal judges and magistrate judges and more than

100 pro se law clerks and

other personnel in district and appellate

court clerks’ offices.”

Even More Prisoner Cases

The prospect of even more pro se prisoner cases in the event that national health

care legislation is approved by Congress

was also raised.

Lisa Wells Harris, civil rights and criminal law counsel at the National Association

of Attorneys General, told the committee of

the concern of members of her organization

about the growing prisoner case problem

and the costs involved. The National Association of Attorneys General passed a resolution at its March meeting in Washington,

D.C., that stated “legally frivolous lawsuits

. . . are choking state courts” and recommended state legislation to remedy the situPro Se Prisoner Cases Dominate Discussions

at State–Federal Meeting; Hatch Speaks

ation, including establishing filing fees for

such petitions, requiring exhaustion of administrative remedies, and restoring partial

sovereign immunity.

The committee discussed

other potential remedies, including mandatory prison

grievance procedures for all

prisons (possibly involving

judges going in person to

prisons for hearings), a

prison ombudsman, and

sanctions for frivolous petitions.

Senator Hatch Discusses

Legislation

In other business, the committee members discussed

crime legislation pending in

the Congress with U.S. Senator Orrin G. Hatch (R–Utah),

ranking minority member of

the Senate Judiciary Committee. Hatch said that he

was interested in guidelines for principled

federalism in the allocation of business

between the state and federal courts.

The other primary topic of discussion at

the meeting was the potential impact of

federal health care legislation on the courts.

Dr. Franklin M. Zweig (George Washington University), an adviser to the committee, commented on the issue.

Judge Stanley Marcus (U.S. S.D. Fla.),

chair of the committee, appointed a special

subcommittee to study the impact on the

courts of different proposals for health care

reform. Members of the committee are Chief

Judge Barbara J. Rothstein (U.S. W.D.

Wash.), chair; Chief Justice Harry L. Carrico

(Va. Sup. Ct.); Judge Stephen H. Anderson

(U.S. D. Utah); and Judge J. Frederick

Motz (U.S. D. Md.). ❏

Federal judges are often required to

reverse the conviction of a defendant in a

state court capital case, or at least conduct

a hearing, because the record is insufficient for the resolution of certain issues.

Senior Judge Arthur L. Alarcon (U.S. 9th

Cir.) has identified the following 21 areas

in which the state court record in capital

cases is sufficiently deficient to require a

federal court evidentiary hearing and possibly a habeas reversal:

• competency of the petitioner to stand

trial;

• capacity of the petitioner to make a

knowing and intelligent waiver of a relevant constitutional right;

• whether the petitioner has been treated

or hospitalized for a psychiatric disorder;

• effect of medication prescribed by jail

physicians on petitioner’s ability to comprehend trial proceedings or to assist counsel in presenting a defense;

• impact of the denial of medication

prescribed by the petitioner’s private physician on his or her ability to comprehend

trial proceedings, or to assist counsel in

presenting the defense;

• alleged failure of counsel to conduct a

competent investigation or to call material witnesses;

• impact on the jury of the shackling of

the petitioner during trial;

• alleged suppression or destruction of

exculpatory evidence;

• unreported rulings on essential instructions, or a lack of clarity in the record

as to defense instructions reviewed and

rejected by the trial court;

• scope of oral stipulations between

counsel affecting constitutional rights, and

the defendant’s understanding of the stipulations;

• lack of clarity in the record regarding

exhibits displayed to a witness in the

presence of the jury (e.g., a gruesome

photograph) or awareness of the jury of

such evidence;

• failure of the record to indicate whether

the jury requested and received an exhibit;

• failure of the record to show that the

petitioner read and understood a written

waiver of his or her presence at certain

stages of the proceedings, or of any other

constitutional right;

• alleged knowing presentation by the

prosecutor of false testimony;

• alleged failure of the prosecutor to

disclose the fact that a state witness testified falsely on cross-examination;

• defense lawyer’s alleged conflict of

interest;

• alleged bias of the trial judge;

• alleged conflicts or misconduct involving court officials, interpreters, bailiffs, and jurors;

• alleged unconstitutionality of the

state’s method of execution;

• alleged unconstitutional charging practices, such as a denial of equal protection

based on race, national origin, age, gender, or religion; and

• alleged unconstitutional procedures

in selecting the grand or petit jury. ❏

Twenty-One Issues Identified that Cause

Reversals in Habeas Corpus Proceedings

Sen. Orrin G. Hatch (RUtah), ranking minority

member of the Senate

Judiciary Committee,

discussed federal crime

legislation with state and

federal judges in Washington in May.
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 6 • July 1994

bias in the courts, federal court certification

of state law questions to the Iowa Supreme

Court; and the compatibility of automation

equipment in the federal and state courts.

Judge Wolle hosted a reception in his home

for the attending judges.

LOUISIANA—Chief Justice Pascal F.

Calogero, Jr. (La. Sup. Ct.) and Chief Judge

Henry A. Politz (U.S. 5th Cir.) opened the

summer meeting of the Louisiana State–

Federal Judicial Council, held on June 7,

1993, with a brief history of the council.

The success of the council in reducing

friction between the two systems over federal reversals of criminal convictions was

noted. Judge Politz commented on the pressure in Congress to move more state matters into the federal courts and the need for

increased activity of the council if the trend

continues. Judge Jacob L. Karno (La. 24th

Jud. Dist.) called attention to the friction

developing between certain state child support orders and bankruptcy decisions modifying those orders. The council asked for

more information and follow-up consultation with the chief bankruptcy judges. Judge

Politz and Justice Calogero concluded the

meeting by inviting those state judges in

attendance to the U.S. Fifth Circuit Judicial

Conference in San Antonio, and by inviting

federal judges present to attend the Louisiana Judges Conferences in New Orleans in

October and in Lafayette in April.

MINNESOTA—Judges convened for the

annual meeting of the Minnesota State–

Federal Judicial Council in Minneapolis on

October 27, 1993, with the following agenda

items: discussion of the study of gender and

racial bias in the Minnesota state court

system; an examination of the process of

certification of state law issues; lawyer discipline; a Civil Justice Reform Act implementation plan; the proposed changes in

the Federal Rules of Civil Procedure; and

the progress of building projects at the

Minnesota Justice Center.

MISSISSIPPI—State and federal judges

in Mississippi decided to revive their state’s

defunct state–federal judicial council at a

meeting in Biloxi on July 23, 1993. Chief

Judge Henry A. Politz (U.S. 5th Cir.) and

Chief Justice Roy N. Lee (Miss. Sup. Ct.)

were designated to appoint six members

from each system. Topics discussed at the

first meeting of the reconstituted council

were the loan of federal courtrooms for

state proceedings, loans of magnetometers,

cooperation of judges from the two systems

in handling attorney scheduling conflicts,

and resolution of problems resulting from

bankruptcy stays.

MISSOURI—The University of Missouri

Alumni Center at Columbia was the site of

the October 1993 meeting of the State–

Federal Judicial Council of Missouri. Four

federal judges and two state judges attended. Certification of state law questions

to the Missouri Supreme Court was the first

item on the agenda, led by Chief Judge

Edward L. Filippine (U.S. E.D. Mo.). Other

issues discussed were the sharing of state

and federal facilities to alleviate space problems in courthouses, a procedure for the

resolution of scheduling conflicts, and cameras in the courtroom.

MONTANA—The Montana State–Federal

Judicial Council invited all 37 state trial

judges to its meeting on June 25, 1993, in

Missoula. Among the topics discussed by

the state and federal judges present were a

bankruptcy education program for state

judges, new rules for fax filing, a status

report on the U.S. Court of Appeals for the

Ninth Circuit, new building projects for the

federal court in Montana, and federal–state

cooperation in the handling of litigation

arising from recent prison riots. The next

meeting will be held in the summer of 1994

at the annual convention of the Montana

Bar Association.

NEVADA—Judge Melvin Brunetti (U.S.

9th Cir.) presided over the meeting of the

Nevada State–Federal Judicial Council on

October 1, 1993, in Carson City. Ten members and six guests attended the meeting.

Justice Thomas L. Steffen (Nev. Sup. Ct.)

reported on current issues in the state judiciary, including the hiring of a press relaon his meeting with U.S. Attorney General

Janet Reno and the proposal for an ongoing

partnership between state and federal judges

and the U.S. Justice Department, especially

to discuss states’ needs for federal funds in

connection with criminal justice. The final

item of business was a discussion of the

violence against women legislation pending in the Congress and the “significant

increase” the legislation would create in the

workload of state and federal courts.

The major topic on the agenda at the

council’s May 10, 1994, meeting was the

upcoming Fourth Circuit Conference on

State–Federal Relationships, scheduled to

be held in Williamsburg on November 14–

15, 1994. The council also discussed pending crime legislation in the Congress, led by

Judge H. Emory Widener, Jr. (U.S. 4th

Cir.). The final item on the agenda was a

discussion of limits on punitive damage

awards, led by Judge William W. Sweeney

(Va. Ct. of App.).

WASHINGTON—The Washington State–

Federal Judicial Council met in Yakima on

April 22, 1994. A major item on the agenda

was dealing with attorney misconduct and

lack of professionalism. Justice Barbara

Durham (Wash. Sup. Ct.) moderated a discussion panel on the issue that included

Justice James A. Andersen (Wash. Sup. Ct.)

and Judge William L. Dwyer (U.S. W.D.

Wash.). Other business included a presentation on habeas corpus and fact-finding

requirements by Judge Robert J. Bryan

(U.S. E.D. Wash.) and a presentation by

Bankruptcy Judge Philip H. Brandt (U.S.

W.D. Wash.) on the recent bankruptcy symposium.

Regional and Metropolitan

Councils

DETROIT—The organizational meeting

of the Eastern District of Michigan State–

Federal Judicial Council was held on July

7, 1993, in Detroit, with Chief Judge Julian

Cook, Jr. (U.S. E.D. Mich.) presiding. Chief

Judges Melinda Morris, Richard C.

ROUNDUP, from page 1

Kaufman, Peter J. Maceroni, and Richard

Kuhn (of the circuit courts of Wayne, Oakland, Macomb, and Washtenaw Counties,

respectively), and Chief Court Administrator John P. Mayer (U.S. E.D. Mich.) attended the meeting. A draft charter was

presented to the group and discussed, and

amendments were received and approved.

The officers of the new council elected for

two-year terms are Chief Judge Cook (chair)

and Judge Kuhn (vice-chair). The meeting

included discussions of the remand of state

claims by federal judges to state courts; the

need for consultation between state and

federal judges on matters of common interest or concern; and the desirability of joint

pretrial and trial activities, including joint

settlement conferences, joint discovery,

joint mediation, and joint trials.

The council met again in Detroit on March

16, 1994. Discussion centered on various

issues relating to jury pools and juries. The

council directed Chief Court Administrator

Mayer to convene a special meeting of

court administrators and jury specialists in

the area from the two systems to discuss

jury lists, the problem of “no shows,” and

concerns about achieving a “fair cross section of the community” for jury pools.

KANSAS CITY—The first joint meeting

of state and federal judges in the metropolitan Kansas City area was held on January

19, 1994. Judge Lee E. Wells (Mo. 16th

Jud. Dist.) and Chief Judge Joseph E.

Stevens, Jr. (U.S. W.D. Mo.) presided over

the luncheon gathering at the offices of the

Kansas City Metropolitan Bar Association.

More than 40 state and federal judges attended. Following the lunch, the group heard

remarks from James G. Apple, chief of the

Interjudicial Affairs Office of the Federal

Judicial Center, about state–federal judicial activities around the country. Maurice

E. White, chief of the Federal–State Relations Office of the Administrative Office of

the U.S. Courts, also spoke. ❏

tions assistant to the chief justice, amendment of rules on death penalty procedures,

and the concerns of state judges about the

proposed Federal Habeas Act of 1993 pending in Congress. Judge Deborah A. Agosti

(Nev. Dist. Ct.) reported on the number of

capital cases in the state system, the attendant costs, and the need to caution prosecutors about proceeding with death penalty

notices only in the few appropriate cases.

Judge Brunetti advised the meeting about

new 9th Circuit “streamlined interim death

penalty” rules. Judge Howard D. McKibben

(U.S. D. Nev.) commented on the proliferation of pro se cases in the federal district

courts. He told the council that 37% of his

600-plus caseload consisted of pro se cases.

He observed that only a small percentage of

those cases had merit. Special invitees to

the meeting made presentations covering

the following: possible legislation to allow

liens on a prisoner’s prison account for

costs of litigation as a method to curb frivolous prisoner filings, video-teleconferencing for prisoner appearances, the Death

Penalty Resource Center, and the Western

Regional Conference on State–Federal Judicial Relationships.

OKLAHOMA—Twenty state and federal

judges approved a council charter at the

first formal meeting of the Oklahoma State–

Federal Judicial Council on November 3,

1993, in Tulsa. Presiding at the meeting

was Judge Robin J. Cauthron (U.S. W.D.

Okla.), who was handed the gavel for the

meeting by Chief Justice Ralph B. Hodges

(Okla. Sup. Ct.). The council was divided

into three divisions: eastern, western, and

northern. Chairs selected for the respective

divisions were Justice Rudolph Hargrave

(Okla. Sup. Ct.), Judge Cauthron, and Chief

Judge James O. Ellison (U.S. N.D. Okla.).

Each division will meet separately at least

once a year, and all divisions will meet

together during the annual meeting of the

Oklahoma State Bar Association. Judge

Cauthron reported on her experiences at the

National Conference on State–Federal Judicial Relationships in Orlando, Fla., in

April 1992. Two topics raised at the council

meeting were (1) areas of conflict between

state and federal jurisdictions and the means

of resolution of those conflicts, and (2) the

institution of an administrative prison grievance procedure. One of the council’s most

important tasks identified at the meeting

was “outreach to the public, the bar, and our

fellow judges.”

Judge Cauthron presided at the May 16,

1994, meeting of the western division of the

council at the Oklahoma Bar Center in

Oklahoma City. Council Member Judge

Charles A. Johnson (Okla. Ct. Crim. App.)

reported on a proposed standard form for

taking guilty pleas in all state district courts.

The proposed form will be reviewed for

effects on federal habeas corpus actions.

The other central issue for discussion related to the large volume of prisoner litigation. The council appointed a committee to

study prison grievance procedures.

OREGON—The revitalized Oregon State–

Federal Judicial Council met at Gleneden

Beach on April 23, 1994. Chief Justice

Wallace P. Carson, Jr. (Ore. Sup. Ct.) and

Chief Judge James A. Redden (U.S. D.

Ore.) opened the meeting. Items on the

agenda included a report from the habeas

corpus committee, a revision of the process

for certification of state law issues, calendar conflicts, conflicting case jurisdiction,

bankruptcy stays, racial and ethnic issues in

the courts, and justice in the 21st century.

VIRGINIA—Chief Justice Harry L.

Carrico (Va. Sup. Ct.) presided over the

meeting of the State–Federal Judicial Council of Virginia on September 28, 1993, in

Richmond. He welcomed new members

Judge Norman K. Moon (Va. Ct. of App.)

and Robert N. Baldwin (Ex. Sec. Va. Sup.

Ct.). Magistrate Judge B. Waugh Crigler

(U.S. W.D. Va.) presented a proposal for

Virginia judges to be involved in trial advocacy institutes. The council approved a

suggestion that a trial advocacy program be

presented at the fall Virginia Judicial Conference, which would reach 80% of the

state judges. Other matters discussed at the

council meeting were the Uniform Transfer

of Litigation Act, court security, and the

growing criminal caseloads in both state

and federal courts. Justice Carrico reported

State–Federal Judicial Observera joint publication of the Federal Judicial Center andthe National Center for State Courts

Interjudicial Affairs OfficeFederal Judicial CenterOne Columbus Circle, 

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