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 7 • October 1994

Four nationally known

authors were featured faculty members of the fifth

annual Harold R. Medina

Seminar for State and Federal Judges on Science and

the Humanities at Princeton

University in June.

The literature portion of

the seminar included three

prominent writers, all on the

Princeton faculty, discussing their works. Joyce Carol

Oates, winner of the National Book Award, treated

the judges with an after dinner commentary on her latest novel, Black Water.

Russell Banks, another

Princeton-based novelist,

discussed his forthcoming

novel about martyr John

Brown. Arnold Rampersad,

of Princeton’s Department

of English, reviewed his assistance to the

late Arthur Ashe in the preparation of Ashe’s

autobiography.

Prof. James McPherson, a member of

the Princeton history faculty and author of

the Pulitzer Prize-winning Battle Cry of

Freedom, led off the presentations for the

last day of the seminar with a lecture titled

“What Did They Believe They Were Fighting For: The War Between the States.” The

discussion focused on the motives for participating in the Civil War of soldiers from

both the North and South.

The first day of the seminar was devoted

to science, and it included presentations

relating to physics, molecular biology, and

engineering. Prof. David Wilkinson of the

Princeton physics faculty reviewed recent

developments and discoveries in studies of

the universe. He also discussed some of the

issues and areas of research in physics that

The chief organizations representing

state and federal judges have spoken with

one voice on principles to be followed for

dispute resolution systems in the debate on

health care reform legislation.

The National Conference of Chief Justices, at the conclusion its annual meeting

in Wyoming on August 4, acted on the

recommendations of its State–Federal Relations Committee and adopted a resolution

stating four principles that Congress should

follow in enacting health care legislation.

The conference is composed of chief justices for supreme courts of states and U.S.

territories. Former Tennessee Chief Justice

Lyle Reid chaired the state–federal committee.

The four principles were adopted (with

only slightly different language) by the

Judicial Conference of the United States on

August 9. The Judicial Conference acted on

a recommendation of a special health care

subcommittee of its Committee on Federal–State Jurisdiction, composed of both

state and federal judges, which met in Wyoming at the same time as the state chief

justices’ meeting.

The principles adopted by both judicial

bodies (in the language adopted by the

Judicial Conference) are as follows:

1. The full exhaustion of administrative

remedies for benefit-denial claims should

be a requirement for any health care legislation. Such a requirement enhances the

efficiency of the review and the effectiveness of such claims. Claimants should not

be permitted to bypass administrative remedies and to proceed directly into a court of

competent jurisdiction.

2. Following the exhaustion of administrative remedies, and consistent with the

general principles of federalism, state courts

should be the primary forum for the review

of benefit-denial claims.

3. Traditional discrimination claims and

actions should be handled differently than

benefit-denial claims based on issues such

as medical necessity.

4. To ensure the effectiveness of the

enforcement provisions of any health care

legislation, it is critical that sufficient resources be provided to the responsible administrative and judicial entities.

The resolutions of the respective state

and federal judicial bodies containing the

four principles were sent to every member

of Congress.

Federal and state members of the health

care subcommittee of the Judicial Conference Committee on Federal–State Jurisdiction are U.S. District Judge Barbara J.

Rothstein (W.D. Wash.), chair; U.S. Court

of Appeals Judge Stephen H. Anderson

(10th Cir.); U.S. District Judge J. Frederick

Motz (D. Md.); Chief Justice Harry L.

Carrico (Va. Sup. Ct.); and Chief Justice

Thomas J. Moyer (Ohio Sup. Ct.). ❏

Seminar Features Nationally Known

Authors; Oates, McPherson Speak

State, Federal Judicial Bodies Agree on

Health Care Dispute Resolution Principles

See MEDINA, page 3

Inside . . .

Obiter Dictum: Substantive Legal Issues

Create Tensions Between State and

Federal Courts 2

Chief Justices Oppose Justice Dept.

Regulation 2

Lord Chancellor at Harlan Seminar 3

Long-Range Planning for Courts 3

Special Issue of Justice System

Journal 3

State–Federal Judicial Council

Discussion Subjects 4

will be developing in the next decade.

Another highlight of science day at the

seminar was a slide presentation on “Engineering Developments and Political and

Cultural Change” by Princeton engineering professor David Billington. That was

preceded by another slide presentation by

Prof. Billington on “Cultural Significance

in Engineering Symbols—The Bridge,” a

favorite lecture at earlier seminars.

Other seminar presenters were Dr. Myron

Magnet, author and former member of the

Board of Editors of Fortune Magazine;

theologian Chester Gillis of Georgetown

University; pre-Columbian art curator at

Princeton, Gillet Griffen; and Russian literature scholar Ellen Chances, also of

Princeton.

The seminar is sponsored each year by

National Book Award winner Joyce Carol Oates discussed her latest novel, Black Water, with state and

federal judges at the fifth annual Harold R. Medina

Seminar on Science and Humanities at Princeton

University in June.

At its annual meeting in Wyoming in

August, the National Conference of Chief

Justices adopted two resolutions dealing

with judicial federalism.

The first resolution states the chief justices’ strong opposition to “federal preemption of existing state product liability

law . . . as an unwise and unnecessary

intrusion on principles of federalism.” The

justices also oppose any such preemption

because such a measure would be “contrary

to the need for speedy and economical

resolution of disputes.”

The resolution notes that the conference

has continually opposed since 1983 “broad

federal legislation” that would cause such

preemption; that such opposition has been

continuously reaffirmed by the conference;

and that state product liability law has

achieved “substantial uniformity over a 30-

year period.” The conference opposes specifically “such radical concepts as the proposition that the U.S. Court of Appeals should

be the final arbiter of state tort law.”

The second federalism resolution recognizes “the need to reduce jurisdictional

conflict among tribal, state, and federal

courts” and notes the accomplishments of

the Tribal Courts and State Courts Project,

a project funded by the State Justice Institute. The resolution endorses the following

four principles developed by the project:

• Tribal, state, and federal courts should

continue cooperative efforts to enhance relations and resolve jurisdictional disputes.

• Congress should provide resources to

tribal courts consistent with their current

and increasing responsibilities.

• Tribal, state, and federal authorities

should take steps to increase the crossrecognition of judgments, final orders, laws,

and public acts of the three jurisdictions.

• The Tribal Courts and State Courts

Project should define the appropriate jurisdiction of tribal courts over conduct on

tribal lands by tribal members, nonmember

Indians, and non-Indians.

The resolution made permanent the

council’s Committee on Jurisdiction in Indian Country.

Copies of the two resolutions may be

obtained from the National Center for State

Courts, 300 Newport Ave., Williamsburg,

VA 23185, phone: (804) 253-2000. ❏

NCCJ Adopts Two

Strong Resolutions

on Federalism

More than 180 judges, court officers,

administrators, legislators, and educators

from states, U.S. territories, and the federal

judicial system are expected to attend the

first National Conference on Eliminating

Racial and Ethnic Bias in the Courts, in

Albuquerque, N.M., March 2–5, 1995.

The National Center for State Courts

(NCSC) is sponsoring the conference with

funding from the State Justice Institute.

The NCSC has also consulted the Federal

Judicial Center on the conference plan and

agenda, and the FJC will design special

segments for federal court participants.

The conference will focus on actions

designed to assist judicial leaders and administrators in the development of innovative strategies to identify and eliminate the

existence and causes of racial and ethnic

bias in their judicial systems. Objectives

include the following:

• encouraging courts to dismantle all

vestiges of racial and ethnic bias in the

judicial branch;

• presenting an analytical framework for

understanding specific ways in which personal, institutional, and systemic bias may

operate in the courts;

• providing a forum for judges, officers

of the court, court administrators, representatives of public and private organizations,

scholars, and the general public to exchange

ideas on how the existence of bias in the

courts and efforts to eliminate it affect court

policy making and management;

• informing participants about successful efforts to investigate the existence and

nature of bias in the courts and about barriers to that success; and

• inspiring participants to develop strategies to eliminate racial and ethnic bias

from their court systems and to follow up

on their strategic plans.

Activities for achieving these objectives

include small-group discussion and exercises, workshops, and a “town forum” discussion. A panel presentation will explore

approaches used to raise awareness about

bias, such as task forces, diversity training,

programs on sentencing disparities, and

public forums and hearings. State teams,

federal participants, and representatives

from public, private, and community organizations will work on action strategies.

The teams will have an opportunity to share

their findings with other conference participants.

Conference follow-up will include establishing a database of experts on racial

and ethnic bias in the courts, publication of

the conference proceedings, and development of a survey of various strategies for

addressing racial and ethnic bias in each

state and territory. These plans may provide

a framework for the leadership of the

nation’s various judicial systems as they

devise appropriate reform strategies and

carry them out.

A brochure describing the conference in

more detail will be mailed out later this

year. The Federal Judicial Center will contact chief circuit judges to explain its funding policies for the conference. For more

information about the conference, state court

personnel should contact H. Clifton Grandy,

Project Director, or Karen M. Hughes, National Center for State Courts, 300 Newport

Ave., Williamsburg, VA 23185, phone:

(804) 253-2000, fax: (804) 220-0449. ❏

State and Federal Judges, Court Personnel to Attend

March Conference on Ending Racial, Ethnic Bias

John Simpson/LEIGH
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 7 • October 1994

OBITER DICTUM

Substantive Legal Issues Create Tensions

 The National Conference of Chief Jus- Between State and Federal Courts

tices has taken a firm stand against a

proposed Department of Justice regulation that would permit department lawyers to communicate with persons represented by counsel under circumstances

not now permitted by many state legal

ethics codes.

At their annual conference, held in

August, the chief justices adopted a resolution that strongly opposes the proposed

rule and urged U.S. Attorney General

Janet Reno to delay making it final.

The proposed regulation is set forth in

part 77 of Title 28 of the Code of Federal

Regulations. Section 77.5 provides that

an attorney for the government may communicate with a represented person concerning the subject matter of the representation if the communication “(1) is made

in the course of an investigation, whether

undercover or overt, of possible criminal

activity; and (2) occurs prior to the attachment of the Sixth Amendment right to

counsel with respect to charges against

the represented person arising out of the

criminal activity that is the subject of the

investigation; or (3) the communication is

otherwise permitted by law.”

The basis for the chief justices’ objection is that, under state professional conduct codes and under the ABA Code of

Professional Conduct, a communication

by a government prosecutor or government attorney with a represented person

would constitute unethical conduct and

subject the prosecutor or attorney to disciplinary proceedings in the states for unprofessional conduct.

The chief justices’ resolution urges the

Attorney General to “continue discussions with representatives of the conference in an effort to resolve the issue and

avoid a regrettable constitutional confrontation which might arise if the Final Rule

is implemented.”

The chief justices also endorsed an

extensive “comment” on the proposed

rule—this comment had been prepared by

a special committee created by the chief

justices to deal with the issue and was sent

to the Attorney General in March.

 The chief justices, in their resolution,

noted that “as a matter of policy and

ethics, as well as principles of federalism

and separation of powers, the state supreme courts have the sole and exclusive

responsibility to supervise the practice of

law in each jurisdiction.” “The Proposed

Rule,” they continued, “is antithetical to

such policies, principles, and ethical considerations.”

The Department of Justice had advised

the special conference committee in an

August 1 letter that it would not delay

making the rule final.

The conference also opposed the rule

when it was first proposed in 1993, having

adopted an earlier resolution that created

the special committee and charged it with

communicating to the Attorney General

the “grave concerns of the conference”

and the desire to avoid a “constitutional

confrontation.”

Chief Justice E. Norman Veasey (Del.

Sup. Ct.), chair of the special committee,

in transmitting the comment to U.S. Attorney General Janet Reno in March, proposed in an accompanying letter a compromise regulation that would permit such

communications by prosecutors in some

instances: when the other lawyer has consented; when the prosecutor is expressly

authorized to do so by a specific act of

Congress; or when the represented party

initiates the contact and the prosecutor

reasonably believes that notification of

the party’s lawyers creates a risk of death

or substantial bodily harm. The compromise was rejected by the Department of

Justice.

Members of the chief justices’ special

committee, in addition to Chief Justice

Veasey, are Chief Justice Malcolm M.

Lucas (Cal. Sup. Ct.), Chief Justice Luis

D. Rovira (Colo. Sup. Ct.), and Chief

Justice Richard W. Holmes (Kan. Sup.

Ct.). ❏

Chief Justices’ Conference Takes Strong

Stand Against Justice Dept. Regulation

by Justice Susan P. Graber

Oregon Supreme Court

(This column has been adapted from materials distributed by Justice Graber at the

Western Regional Conference on State–Federal Judicial Relationships in June

1993, in Stevenson, Wash.)

Most of the conferences

and writings on state–federal

judicial relationships concern

court procedures and communications. There are, however, certain substantive legal issues that both cause and

reflect some of the tensions

between the two systems. The

following is a discussion of

some of the kinds of cases and legal issues

that arise on the federal side yet implicate

the operations of the state courts.

A. Abstention Doctrines

A fundamental issue in state–federal

judicial relationships is the problem of overlapping and conflicting state and federal

jurisdiction. There are a number of complex, often interrelated judge-made abstention doctrines relevant to that problem. The

doctrines constitute a rejection of the absolute right to a federal forum where federal

jurisdiction exists, and they have the common purpose of dealing with uncertain, or

at least ambiguous, issues of state law.

These judge-made abstention doctrines

include the following:

• When a state’s action is being challenged in federal court as contrary to the

federal constitution and there are questions

of state law that may be dispositive of the

case, the federal court should abstain (although it may retain jurisdiction while the

parties’ rights are determined in the state

forum). Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941).

• Federal courts of equity should exercise their discretionary power with proper

regard for the rightful independence of state

governments in carrying out domestic

policy. Burford v. Sun Oil Co., 319 U.S. 315

(1943) (a case involving an order of the

Texas railroad commission relating to the

drilling of oil wells).

• A federal court may stay a federal

diversity action in eminent domain cases.

Louisiana Power & Light Co. v. Thibodaux,

360 U.S. 25 (1959).

• A federal court should not enjoin a

state criminal prosecution begun prior to

the institution of the federal suit except in

very unusual situations, where necessary to

prevent immediate irreparable injury.

Younger v. Harris, 401 U.S. 37 (1971). The

doctrine has now been extended to civil

proceedings. Middlesex County Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S.

423 (1982).

• Pendency of an action in a state court

is not a bar to proceedings concerning the

same matter in federal court, other than in

exceptional circumstances. Colorado River

Water Conservation Dist. v. United States,

424 U.S. 800 (1976). Six factors are relevant to the decision whether to stay or

dismiss a federal proceeding in deference

to state adjudication: (1) the order in which

jurisdiction was obtained over the action

(the “priority” factor); (2) the law that provides the rule of decision on the merits (the

“choice of law” factor); (3) the convenience or inconvenience of the forum;

(4) the desirability of avoiding piecemeal

litigation; (5) the adequacy or inadequacy

of state law proceedings in protecting the

defendant’s rights: and (6) in an action

involving property, which court first assumed jurisdiction over the property in

dispute (the “jurisdiction over the res” factor).

Some of the abstention doctrines de- See OBITER DICTUM, page 4

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.

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.

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

scribed above may involve postponement

of federal jurisdiction, rather than its abdication. When the federal court retains jurisdiction—that is, does not dismiss the case—

litigants may return to federal court for

adjudication of federal issues.

B. Certification

Certification is a procedural method of resolving

some state–federal jurisdictional issues. A federal court

in which a case is pending

certifies an unresolved question of state law (generally

one that disposes of all or

part of the case) to the court

of last resort of that state,

which answers the question.

The federal court then adjudicates the pending case.

Now provided in at least 29 states, certification was first recognized by the Supreme Court in Clay v. Sun Ins. Office Ltd.,

363 U.S. 207 (1960). The Court has strongly

endorsed the use of certification in cases

where state law is difficult for the federal

court to ascertain.

State statutory and discretionary criteria

for accepting certification vary. For example, in Western Helicopter-Servs. v.

Rogerson Aircraft, 311 Or 361, 811 P.2d

627 (1991), the Oregon Supreme Court

determined that it will accept a certified

question if the certifying court is one of

those designated in the state’s certification

statute, if the question is one of law, if the

law at issue is Oregon law, if there is no

controlling Oregon precedent, and if the

question has the potential to determine at

least one claim in the case.All states having statutory certification procedures accept certified questions from the Supreme

Court and from federal courts of appeal,

and most also accept questions from federal district courts. Some accept questions

directly from bankruptcy judges and magistrate judges.

C. Selected Areas of Substantive Law

There are a number of substantive areas

of law that present questions of overlapping and conflicting state and federal jurisdiction, some of which are addressed by

federal statutes. A few examples will suggest the extensive opportunities both for

common ground and for conflicts.

• Under the Anti-Injunction Act, 28

U.S.C. § 2283, federal courts are prohibited

from enjoining most state proceedings, with

certain exceptions: where such injunctions

are expressly authorized by Congress,

where they are necessary in the aid of the

federal court’s jurisdiction, and where they

are necessary to protect or effectuate the

federal court’s prior judgments (the

“relitigation exception”). The “in aid of

jurisdiction” exception implies that some

federal injunctive relief may be necessary

to prevent a state court from so interfering

with a federal court’s consideration or disposition of a case as to seriously impair the

federal court’s authority in that regard.

• Under 28 U.S.C. § 1443, providing for

civil rights removal jurisdiction, a case may

be removed from state to federal court in

three circumstances: (1) where a person has

been denied or cannot enforce in state court

a civil right of equality (the “denial” clause);

(2) where a defendant is being sued or

prosecuted for performing any act under

color of authority derived from any law

providing for equal rights (the “authority”

clause); and (3) where a defendant is being

sued for refusing to perform an act that

would be inconsistent with such a law (the

“refusal” clause).

• The Declaratory Judgment Act, 28

U.S.C. § 2201, provides that, with certain

exceptions, a federal court may declare the

rights or legal relations of interested parties
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 7 • October 1994 • 3

the Judiciary Leadership Development

Council, the Federal Judicial Center, and

the Council on the Humanities and the

Council on Science and Technology of

Princeton University. It is held annually

and is open to both state and federal judges.

The 1994 seminar was the fifth in the series.

The sixth annual Medina seminar, now

in the planning stages, will be held June 8–

13, 1995.

Interested state judges should contact

the chair of the Judiciary Leadership Development Council, Judge John W. Kern

III, 2510 Virginia Ave., N.W., Watergate

East 314-N, Washington, DC 20037, phone:

(202) 338-5513. Scholarships for state

judges to attend the seminar are available

from the State Justice Institute.

For information about application procedures, interested federal judges should

write to the Judicial Education Division,

Federal Judicial Center, Thurgood Marshall

Federal Judiciary Building, One Columbus

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

MEDINA, from page 1

At this year’s Medina Seminar, Pulitzer Prize-winning

historian James McPherson

previewed his forthcoming

book on motives of Civil War

soldiers.

A special issue of the Justice System

Journal reports how state courts have coped

with the rising tide of drug cases and how

successful they have been. The special issue is titled “Swift and Effective Justice:

New Approaches to Drug Cases in the

States.” The Justice System Journal is published by the Institute for Court Management of the National Center for State Courts.

Fifteen authors from academia, state

courts, and the private sector examine and

evaluate the three major approaches used

by the courts to respond to increasing drug

caseloads: (1) case-processing management

(including differentiated case management

and expedited drug-case management programs funded by the Bureau of Justice

Assistance, U.S. Department of Justice);

(2) special drug-treatment courts; and (3)

sentencing alternatives (treating drug offenders in addition to incarcerating them).

In developing approaches to manage their

rising drug caseloads, the state courts had to

deal with three fundamental questions:

• How will special, speedier processing

of drug cases affect the remaining court

caseloads?

Special Issue of Justice System Journal Details

Courts’ Attempts to Deal with Rising Drug Caseloads

Lord James McKay of Clashfern, Lord

Chancellor of Great Britain, discussed

British legal reforms with American judges

at a conference in the Lord Chancellor’s

chambers during the second annual John

Marshall Harlan Seminar for State and

Federal Judges. The seminar, held in July,

took place in London and Edinburgh.

The seminar is sponsored by the Judiciary Leadership Development Council

(chaired by Judge John W. Kern III of the

District of Columbia Court of Appeals), the

Law Society of London, the General Council of the Bar of the United Kingdom, and

the University of Edinburgh. The program

is named for Justice John Marshall Harlan

of Kentucky, who served on the U.S. Supreme Court from 1877 to 1911.

Lord McKay told the seminar participants that some of the legal reforms he

proposed in a series of papers issued in

1989 had been adopted, including opening

up access to the courts, granting appearance rights in courts to solicitors, and adopting a modified contingent fee system.

Judge Kern presented Lord McKay with

a biography of Justice Harlan at the conclusion of the session.

Seminar participants included four state

judges, seven federal judges, and two federal administrative law judges. The seminar featured lectures and discussions about

the English legal system, English legal history, and current issues in English criminal

law. There were also special sessions on

European Community law and the European Court of Human Rights.

The London portion of the program included visits to “Old Bailey,” the Central

Criminal Court in London, and the Royal

Courts of Justice, where the American

judges sat with their English counterparts

and observed trials. They also met with the

English judges for afternoon tea and conversation.

In Edinburgh, the judges participated in

discussions at the Faculty of Law at the

University of Edinburgh, where they heard

presentations on comparisons of the English and Scottish systems of civil and

criminal law, issues of medical jurisprudence, and recent developments in public

international law.

A reception for the judges at the Faculty

of Advocates in Edinburgh preceded visits

to the homes of Scottish judges and advocates (barristers).

At the conclusion of the seminar, Judge

Kern said that “the evaluations by the participants were unusually complimentary of

all aspects of the program. Every evaluation gave it the highest overall rating.”

He indicated that “a third, similar seminar is being planned for the summer of

1995, during the first two weeks of July.”

Interested judges should contact Judge Kern

at 2510 Virginia Ave., Watergate East 314-

N, Washington, DC 20037, phone: (202)

338-5513. ❏

British Lord Chancellor Greets

State, Federal Judges at Seminar

Realistic Long-Range Planning for Courts:

A State–Federal Judicial Council Project

by Judge William W Schwarzer

Director, Federal Judicial Center

Long-range planning for state and federal courts must be tempered by a healthy

dose of realism. This is doubly true in the

case of state–federal judicial councils because they are ad hoc bodies—they have no

statutory status and are invested with no

regulatory or administrative authority. These

characteristics do not take away from their

utility. But these councils lack the type of

staff needed to engage in operative planning for the future.

Councils therefore should not pretend to

be anything other than what they are. However, that does not mean that they have to

shy away from activities that can contribute

to long-range planning for the courts.

Institutionalizing Councils

Perhaps the initial long-range planning

concern for councils should be their own

future. The pamphlet published by the Federal Judicial Center (and available from the

Center’s Interjudicial Affairs Office; see

address in masthead, opposite page) on

organizing and using state–federal judicial

councils notes that they have had a checkered history. The existence of many of them

has been episodic. Between 1970 and 1980,

the number of councils fell from 37 to 9.

Recently, councils have been reviving and

their numbers are increasing.

This suggests that councils ought to give

thought to institutionalizing themselves.

Unlike government agencies that are hardy

and seem to survive even beyond the time

when they are needed, state–federal judicial councils enjoy none of the security that

comes from bureaucratic and political support. Lacking a constituency, councils must

survive on their merits.

Perhaps opportunities will arise for their

legislative recognition. One way this might

occur is by statutory references to state–

federal judicial councils, assigning them

functions and recognizing them as sources

for advice or counsel or as recognized coordinating bodies. Their capacity to survive

can perhaps also be enhanced by strengthening their attachment to established de

jure bodies, such as state judicial councils

in the relatively few states where they exist

and the judicial councils in the federal system.

Discovery of Ways to Be Useful

Another approach to the institutionalization of councils is to find additional

ways in which they can become useful and

valuable. Agencies, committees, and other

bodies should not survive for their own

sake. Their survival should be a reflection—a function—of their usefulness.

Councils therefore should on an ongoing

basis determine what needs exist that they

can fill. They should be like the pink Kaiser

cement trucks we used to see on the streets

that had written on their sides: “Find a Need

and Fill It.”

The original feeling for a need for councils stemmed from the perceived existence

of frictions between state and federal courts.

As those frictions seemed to decline, councils began to fade away. There is good

reason to believe that today there is, on the

whole, relatively little need for councils to

deal with friction between the systems.

What are the needs that exist now or that

can be foreseen? The answer to that question will vary from state to state. If councils

are to plan for an effective future role, they

should begin by undertaking an imaginative and thorough search for needs that they

can meet. It should not be enough simply to

invent roles for the councils. There is no

need for make-work organizations. Whatever roles the councils undertake, they

should meet genuine needs if they are to

survive.

Much of the common activity of councils addresses issues of immediate concern,

such as coordinating habeas corpus review,

dealing with problems created by bankruptcy stays, and improving communications between state and federal judges. These

are important matters where councils play

a useful role. But councils might do well to

try to look beyond the horizon.

The Long-Term Problem of

Resource Allocation

Perhaps the most serious long-term issue confronting both state and federal courts

concerns resources. Courts face a future of

increasing demand for services coupled

with declining resources with which to provide them. Each court system is working on

resource problems in its way, more or less

effectively. It is likely that court systems

will have to change in fundamental ways to

cope with what seem quite clearly to be

declining prospects for the future.

Councils are just beginning to think about

whether and how state–federal cooperation

and coordination might alleviate some of

the resource problems we face. Active measures, of course, have to be carried out

through other agencies and channels. But it

is conceivable that the councils can become

a vehicle or forum for the exchange of

information—and for the identification of

opportunities—that could be quite helpful

to the more effective utilization of resources.

This would involve broadening the traditional role of councils to take in administrative matters, and this in turn should be

reflected by expanding membership beyond judges.

The exchange of information about respective resources and needs could be the

first step leading to developing sharing

arrangements by the responsible authorities. One can easily imagine pooling of law

libraries and other courthouse facilities,

including courtrooms. Efficiencies and

economies might be realized by coordination of some aspects of calling of jurors,

probation administration, etc. Implementing such measures is not something councils should attempt to do. But councils can

serve as catalysts by initiating thought,

discussion, study, and analysis—by bringing together the actors in each system—

leading ultimately to appropriate action.

Other Areas of Cooperation

This catalytic function can be a useful

adjunct to conventional long-range planning activity by established authorities. One

can imagine other areas: for example, exchanging information about experience with

alternative approaches to discovery and

disclosure could be useful to the development by the courts of rule changes (for both

systems). Similarly, exchange of information about ethical rules and standards might

encourage improvements in each system.

A major issue for long-range planners is

the allocation of business between state and

federal court systems. This is a source of

political controversy and much debate.

Councils can be a place where the issues are

considered on a practical level, experiences

are exchanged, and pragmatic answers to

problems developed. The work of councils

in this area could inform the positions taken

by the leadership of the judicial system and

assist in bringing about enlightened executive and legislative decisions. One can well

imagine that a communication from a state–

federal judicial council would carry considerable weight with legislators.

Councils may be a place for constructive

thought and exchanges of experience and

views, leading to more informed action in

the state and federal court systems. But to

play that role, councils must ensure their

own long-term future—their continuity as

serious and effective bodies that can make

a valuable contribution. ❏

• Will special drug-case processing result in “assembly line justice,” leading in

turn to different sentences than drug offenders would otherwise receive?

• Will special drug-case processing reduce recidivism among drug offenders?

The special issue’s articles indicate that,

overall, special drug-case management approaches seem to be working, leading to

faster processing of these cases.

Some of the articles show that special

drug-treatment courts tend to blur the distinction between prosecution, defense, and

judicial personnel. Cases can take longer

because large numbers of defendants are

placed under court supervision for longer

periods of time. The articles suggest that

special drug-treatment courts and sanctions

have little effect on recidivism among drug

offenders.

Copies of this special issue (vol. 17,

no.1) can be obtained by contacting Carrie

Clay, Publications Coordinator, National

Center for State Courts, 300 Newport Ave.,

Williamsburg, VA 23187-8798, phone:

(804) 259-1812, fax: (804) 220-0449. ❏
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 7 • October 1994 State–Federal Judicial Observer (#7) a joint publication of the Federal Judicial Center and the National Center for State Courts

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

in April 1992, sparked enthusiasm in the

states for organizing, reorganizing, or renewing state–federal judicial councils. The

Interjudicial Affairs Office of the Federal

Judicial Center regularly monitors the

meetings and activities of these councils,

and it publishes short summaries of the

meetings of the various councils regularly

in the State–Federal Judicial Observer.

The following is a compilation of discussion topics that have been included on

the agendas of various councils from the

summer of 1992 to the summer of 1994.

The list reveals the rich diversity of subjects that have occupied the attentions of

state and federal judges, and it suggests the

usefulness of councils in discussing matters of mutual concern. In some instances,

the discussion topics have led to concrete

actions, such as the creation of gender-bias

task forces, the implementing of plans for

sharing facilities, the sharing of sources for

jury lists, and similar activities. (A Federal

Judicial Center pamphlet, Organizing and

Using a Council of State and Federal

Judges, has additional suggestions and information about councils.)

Alabama

bankruptcy stays

court management information systems

adequate funding for courts

California

new juror orientation programs

death penalty/habeas corpus rules

recruitment of death penalty counsel

law library and facilities sharing

budget cuts for judiciary

joint certification of court reporters

capital case symposium

new disclosure rules for related cases

court coordination guidelines

court interpreter issues

federalization of state law

certification of state law questions

prison inmate grievance procedures

Connecticut

joint use of jury pool selection processes

prison inmate grievance procedures

Florida

long-range planning for courts

size of federal judiciary

death penalty appeals

seeking such declaration, even when questions of state law are implicated.

• Under the Tax Injunction Act, 28 U.S.C.

§ 1341, federal courts may not enjoin the

collection of state taxes “where a plain,

speedy, and efficient remedy may be had in

the courts of such State.”

 • Suits for violations of contracts between an employer and a labor organization

representing employees may be brought in

federal court under the Labor Management

Relations Act, 29 U.S.C. § 185.

• At least two federal statutes pertain to

jurisdiction over bankruptcy actions. 28

U.S.C. § 1334 provides for nonexclusive

federal jurisdiction of matters arising under

or related to bankruptcy. 11 U.S.C. § 362

provides for automatic stay of all judicial

proceedings (not including criminal proceedings) brought against a debtor who has

filed for Chapter 13 bankruptcy, including

actions to collect a claim against the debtor.

• 28 U.S.C. § 1362 provides that federal

district courts have original jurisdiction over

all civil actions, brought by recognized

Indian tribes, in which the matter in controversy arises under the Constitution, laws,

or treaties of the United States. 28 U.S.C.

§ 1360 provides for jurisdiction of civil

actions arising under state law brought by

enumerated Indian tribes in certain specified states.

• The dual sovereignty doctrine holds

that successive criminal prosecutions by

separate sovereigns for crimes arising out

of the same acts are not barred by the double

jeopardy clause of the Fifth Amendment to

the U.S. Constitution. United States v.

Traylor, 978 F.2d 1131 (9th Cir. 1992).

• Under 28 U.S.C. § 2251, a federal court

before which a habeas corpus proceeding is

pending may stay a state court proceeding

against the detained person. Pursuant to 28

U.S.C. § 2254, an application for a writ of

habeas corpus should not be granted unless

it appears that the applicant has exhausted

state remedies.

D. Conclusion

Increasingly, legislatures are attending

to issues of potential state–federal judicial

friction. For example, the Oregon legislature recently has amended its antitrust law

in order to reduce the opportunity for duplication and conflict in that area. Substantively, Oregon’s statute, ORS 646.705, mirrors federal law in most respects. The state

statute also provides, however, that once a

trial on an antitrust claim begins in federal

court, the parallel state claim is abrogated

unless there is a later determination that the

federal court lacked jurisdiction.

At the congressional level, grants of

exclusive jurisdiction definitively eliminate jurisdictional conflicts. Notwithstanding legislative awareness and action, however, there will continue to be room for the

operation of judge-made abstention doctrines. ❏

OBITER DICTUM, from page 2

State–Federal Council Discussion Survey Reveals Variety of Subjects

sharing of courtroom facilities

appointments in pro se matters

Montana

long-range planning for courts

gender bias

case workloads of judges

handling of capital cases

certification of state law questions

court interpreter programs

National Conference on State–Federal

Judicial Relationships (Orlando

Conference)

bankruptcy education programs

new rules for fax filings

new building projects

cooperation in prison riot litigation

Nevada

status of law librarians

locus of incarceration of state/federal

prisoners

bankruptcy conflicts

long-range planning for courts

cameras in the courtroom

prison inmate grievance procedures

use of prison facilities for hearings

death penalty resource center

press relations for courts

death penalty procedural rules

Federal Habeas Corpus Act of 1993

proliferation of pro se cases

liens on prisoner accounts for pro se

cases

video teleconferencing for prisoner

appearances

Western Regional Conference on State–

Federal Judicial Relationships

(Skamania Conference)

New York

certification of state law questions

certification and compensation of court

interpreters

Ohio

certification of state law questions

death penalty habeas corpus cases

death penalty resource center

bankruptcy education programs

scheduling conflicts

Oklahoma

prison inmate grievance procedures

public relations for the courts

Tennessee

judicial evaluation survey

certification of state law questions

calendar/scheduling conflicts

joint education programs

Virginia

standardization of court interpreter

program

use of legislative history in interpreting

statutes

public relations and the courts

Fourth Circuit regional state–federal

conference

federalization of state crimes

trial advocacy program for judges

court security

growing criminal caseloads

Uniform Transfer of Litigation Act

federal funds for state criminal justice

system

Washington

sharing of court facilities

sharing of court interpreters

joint education programs

West Virginia

calendar/scheduling conflicts

ADR

automation in the courts

complex litigation

tracking of habeas corpus cases

standards for appointment of counsel

jury management

joint education programs

interpreter services

local court rules

court facilities

pro se litigation ❏

Georgia

ADR

public defender system

Hawaii

joint lists of pro bono counsel

calendar and scheduling conflicts

dual prosecution of criminal cases

certification of court reporters

Iowa

sharing of judicial education programs

sharing of courtroom space and facilities

joint settlement of related cases

calendar/scheduling conflicts

gender and racial bias in the courts

certification of state law questions

Kansas

court mediation programs

state–federal court budget problems

sentencing guidelines

federalization of state crimes

pro se law clerks

Louisiana

National Conference on State–Federal

Judicial Relationships (Orlando

Conference)

calendar/scheduling conflicts

reducing friction resulting from federal

reversals of state criminal proceedings

Maine

overlapping jurisdiction in drug

prosecutions

Minnesota

gender and racial bias

certification of state law questions

lawyer discipline

CJRA implementation

Fed. R. Civ. P. changes

building projects in the state system

Mississippi

loan of federal courtrooms for state

proceedings

calendar/scheduling conflicts

effects of bankruptcy stays

Missouri

National Conference on State–Federal

Judicial Relationships (Orlando

Conference)

automatic stays in death penalty cases

forfeiture of property proceedings in drug

cases

prison inmate grievance procedures

unification of CLE requirements

concurrent jurisdiction in RICO cases

calendar/scheduling conflicts

effects of bankruptcy stays

Interjudicial Affairs OfficeFederal Judicial CenterThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, 

N.E.

Washington, DC 20002-8003