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 3 • July 1993

See TECHNOLOGY, page 4

The National Center for State Courts,

created primarily to assist state judges and

court administrators, is making its technology services available to federal judges and

court administrators, according to Barbara

Kelly of the National Center’s Technology

Programs office.

“We are trying to improve relations with

the federal court system,” said Kelly. “Thus

we are eager to respond to inquiries from

federal judges and clerks and other administrative personnel in the federal system

about technology products and services,

and assistance in project planning and technology acquisition, implementation, and

evaluation.”

Kelly specifically referred to five core

projects within the National Center, known

as the Technology Information Exchange

Service (TIES), which might assist federal

court personnel. The five core projects are

the Technology Information Service (TIS),

the Court Technology Laboratory (CTL),

the Court Technology Database (CTD),

Court Technology Reports (CTR), and the

Court Technology Bulletin (CTB).

TIS responds to inquiries relating to a

host of technology topics in three specific

areas: judge’s chambers, clerk’s offices,

and courtrooms. Specific inquiries most

often relate to case-management software,

computer hardware, court security video

application, multimedia uses for courtrooms, office automation, and court reportJudges and court administrators of nine

western states committed themselves to

promoting state–federal relations in their

respective court systems at a first-ever regional conference on state–federal judicial

relationships.

The commitments were made this June

at the Western Regional Conference on

State–Federal Judicial Relationships, held

at the new conference center in Skamania,

Wash. The conference was funded by a

grant from the State Justice Institute. Participants represented the nine states composing the U.S. Ninth Circuit Court of

Appeals.

The priorities of each state, as developed in break-out discussion sessions at the

day-and-a-half meeting, were as follows:

Alaska—revive and restructure the state–

federal judicial council; work on gender

bias study and civility rules.

Arizona—revive the state–federal judicial council as an institution.

California—increase education on habeas corpus process; consider the formation of regional state–federal judicial councils.

Hawaii—develop a system for allocating resources between the state and federal

systems; establish coordination between

federal and state systems in connection

with the handling of bankruptcy claims.

Idaho—formalize periodic state–federal

judicial meetings; improve communication

between the two systems on case scheduling.

Montana—invigorate the existing state–

federal judicial council and expand participation in it.

Nevada—expand participation of state–

federal judicial council; increase the role of

the council in its “clearinghouse role” for

communications between the two systems.

Oregon—restructure the existing state–

federal judicial council and expand membership to include tribal courts representation.

Washington—formalize state–federal

judicial council meetings and expand participation in it; consider the formation of

regional state–federal judicial councils.

Follow-up contacts will be made by the

conference planners in six and twelve

months to assess the progress toward these

individual goals.

The summary of a preconference survey

of participants noted “a high degree of

agreement” between state and federal judges

on 10 main areas of involvement and interest:

• federal review of state court cases;

• coordinating schedules of state and

federal courts;

• bench/bar committees;

• media relations;

• coordinating bankruptcy procedures;

• certification of state law questions;

• joint education programs for judges

and staff;

• inmate grievance procedures;

• sharing of space and facilities; and

• attorney bar admission.

The plenary session presentations centered on these ten topics. Another plenary

session included a panel discussion on “Public Confidence in the Judiciary,” featuring

Charles T. Royer, Director of the Institute

of Politics at the John F. Kennedy School of

tutional nature of the federal courts.” He

concluded by lauding the seminar as an

opportunity to discuss the issue of the mission of the federal courts and “finding the

proper balance between federal and state

responsibility.”

Other major speakers at the seminar

were Chief Justice Lyle Reid of the Tennessee Supreme Court, Robert J. Del Tufo,

Attorney General of New Jersey, Judge

William W Schwarzer, Director of the Federal Judicial Center, Jay Stephens, former

United States Attorney for the District of

Columbia, and District Court Judge Stanley

Marcus (U.S. S.D. Fla.), Chairman of the

U.S. Judicial Conference Committee on

Federal–State Jurisdiction.

Professor Daniel J. Meador, of the University of Virginia Law School, concluded

the conference by suggesting the formation

of a high-level government council to monitor issues of federalism within the justice

system.

The seminar was funded by a grant from

the State Justice Institute. Further information about the contents of the seminar can

be obtained from David Tevelin, Executive

Director, State Justice Institute, 1650 King

Street, Suite 600, Alexandria, VA 22314,

telephone (703) 684-6100.

from the violation of their rights by other

individuals after the Civil War, “there has

been a slow but inexorable expansion of

federal law enforcement jurisdiction.”

Hughes cited two phenomena that have

generated “huge increases” in the federal

prison population:

• “Decisions by federal prosecutors to

‘federalize’ prosecution of cases subject to both federal

and state jurisdiction, which were

previously left to

state prosecution.”

• Revision of

federal sentencing

laws, “particularly

the addition of numerous mandatory

minimums and the

implementation of

sentencing guidelines.”

He also cited

one particular policy

decision by the federal government affecting the increase

of federal criminal

prosecutions: substantial increases in resources available for

federal criminal investigations and prosecutions.

In commenting on the prosecution of

drug offenses, especially those involving

relatively small amounts of narcotics,

Hughes observed that “if we overload federal courts with the trials of what are essentially county court criminal cases, we have,

arguably, fundamentally changed the instiNine States Set S–F Priorities at First

Regional Conference in Skamania in June

Western States Commit to Improving State–Federal Judicial Relations

NCSC Offers

Technology

Services to

Federal Courts

Brookings Holds Seminar on Issues of Federalism in the Courts

Hughes Addresses Conference on Increasing Federalization of Crime

State and federal judges, legislators,

executive branch representatives, and legal

scholars, primarily from the Washington,

D.C. area, gathered in the historic town of

Easton on Maryland’s Eastern Shore in

mid-May for a special administration-ofjustice seminar on “Federal–State Challenges.”

Sixty participants,

including staff members of the Federal Judicial Center and the

National Center for

State Courts, engaged

in the discussions on

federalism at the oneand-a-half day seminar,

sponsored by the

Brookings Institution.

Three plenary sessions focused on the

separate issues of “The

Federal Role in Criminal Justice: When Does

a Necessary Responsibility Become An Unwarranted Intrusion?”;

“Can Federalism Survive the Federalization

of Crime?”; and “If

There Is a Problem,

How Can We Fix It?”

Congressman William J. Hughes (DN.J.), Chairman of the U.S. House of Representatives Subcommittee on Intellectual

Property and Judicial Administration, in a

keynote address on “the expansion of federal jurisdiction,” centered his remarks on

criminal justice.

He noted that since passage of federal

criminal legislation to protect individuals

Congressman William J. Hughes (DN.J.) reviewed the increasing federalization of crime at the recent

Brookings Institution conference on

federalism and the administration of

justice.

Inside . . .

Caseload Statistics Report 2

Obiter Dictum 2

Capital Case Symposium 3

Gender Fairness 3

Roundup of National State–Federal

Activities 4

Government, Harvard University, and Philip

D. Hager of the San Francisco Daily Journal.

The conference opened with a videotaped address by U.S. Supreme Court Justice Sandra Day O’Connor.

Chief Court of Appeals Judge J. Clifford

Wallace (U.S. 9th Cir.) gave the keynote

address in which he announced, with respect to the two court systems, that “it is

time to focus on one judicial resource with

two roles.”

He listed five priorities for joint efforts:

long-range planning, regulating the volume of cases coming into the court systems,

establishing the highest degree of cooperation between the two systems, developing

alternative means of resolving disputes,

and channeling the best thinking (including

the faculties in law schools) in finding new

ways of achieving these goals and in determining what further structural and procedural changes should be made.

The conference was chaired by District

Judge Alicemarie Stotler (U.S. C.D. Cal.)

and Justice Susan P. Graber (Wash. Sup.

Ct.).

Copies of papers presented at the conference and transcripts of the plenary sessions can be obtained from Mark

Mendenhall, Assistant Circuit Executive,

U.S. Courts for the Ninth Circuit, P.O. Box

193846, San Francisco, CA 94119-3846,

telephone (415) 744-6150, fax (415) 744-

6179.

Judges measure the “temperature” of state–federal judicial relations in each of the

nine states making up the U.S. Ninth Circuit at the first Western Regional Conference

of State–Federal Judicial Relationships. The conference was held in Skamania,

Wash., in June.
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 3 • July 1993

A note to our readers

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

it and ideas for topics for future issues. Edited versions of letters may be printed by

the Observer with the permission of the author.

The Observer will consider for publication short articles and manuscripts on

subjects of interest to state and federal judges. Decisions concerning publication of

a submitted article will be made by the editorial staff.

Letters, comments, and articles should be submitted to Interjudicial Affairs

Office, Federal Judicial Center, One Columbus Circle, N.E., Washington, DC

20002-8003, or to National Center for State Courts, Washington Office, 1110 N.

Glebe Rd., Suite 1090, Arlington, VA 22201.

by William W Schwarzer

(Director, Federal Judicial Center)

(The Observer will feature in each issue a

guest columnist’s view on a particular issue

or matter relating to judicial federalism.

This column was adapted from remarks by

Judge Schwarzer at a recent conference on

issues of federalism in the courts.)

Federalism is a manysplendored thing. Everyone is for it, but it has meant

different things to different people at different

times. In the early years of

the Republic, federalism

was the watchword for

those who sought a strong

national government. Following the Civil War, federalism was the issue in the

debate over federal power

to enforce and protect federal rights and interests.

Throughout our history the

concept of federalism has been suspended

like a banner over a pendulum swinging

between centralization and dispersion of

power and authority. Its utility has been

more as a convenient slogan for political

views changing over time than as an intelligible definition of a consistent policy.

In recent years a narrower concept has

evolved: judicial federalism, focusing on

the interplay of state and federal court jurisdiction. Judicial federalism has two sides.

One side concerns the appropriate scope of

federal jurisdiction—how far should federal power reach. The other side concerns

the restraints on the exercise of federal

jurisdiction—when should that power be

exercised.

No Clear Dividing Line Between State

and Federal Criminal Jurisdiction

 State and federal criminal jurisdiction

are inextricably intertwined. There are no

obvious principles that mark a bright line

dividing state and federal jurisdiction; certainly abstract notions of “federalism” do

not do so. That is so for at least three related

reasons:

• there are few if any subjects that clearly

belong on one side or the other of the state–

federal dividing line, i.e., subjects that concern exclusively “federal interests” or exclusively “state interests” (however those

terms may be defined);

• there are few if any subjects that by the

nature of the offense (as opposed to its

impact) should be excluded from state jurisdiction (areas of special concern to the

national government such as counterfeiting, internal revenue, federal property, and

national security are examples), and even

fewer that should be excluded from federal

jurisdiction (perhaps crimes touching family relations are an example); and

• there are few offenses that, depending

on the particular circumstances, may not

implicate—to some degree at least—what

could be considered national as well as

local interests.

The absence of a bright line, however,

does not end the matter, for as long as the

United States maintains separate state and

federal court systems (a choice that the

Constitution leaves to Congress to make),

deriving their powers from different sources

and serving different—even if overlapping—missions, there is reason for making

allocations of judicial business between

them. The principal reason for making allocations is to protect and advance the range

of interests of each of the respective sovereigns, the state and federal governments.

Or to put it more directly, as long as Congress chooses to maintain a federal court

system, it needs to define the business it

wants the federal courts to do to carry out

federal laws and policies.

Reliance on a broad concept of federalState–Federal Judicial Observer

a joint publication of the

Federal Judicial Center and the National Center for State Courts

J U D I C I A

F

L

E D E R A L

C E N T E R

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

Thomas A. Henderson, Director, Washington Office, National Center for State Courts

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

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

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, 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.

Federalism in the Administration of Criminal Justice

National Center for State Courts

Publishes Caseload Statistics Report OBITER DICTUM

Ninety-three million new cases were

filed in state courts in 1991. This is one of

the many statistics included in the National

Center for State Courts’ recent publication,

State Court Caseload Statistics: Annual

Report 1991. The report provides answers

to such questions as:

• How do state court caseloads compare

to federal court caseloads?

• How have state and federal court caseloads changed over time?

• What is the average caseload handled

by state and federal judges?

• Were more new cases filed in state

courts than disposed of during 1991?

• Are the state courts in the midst of a tort

litigation explosion?

• What is the national trend in felony,

civil, and domestic relations caseload

growth for state courts during the 1980s

and the beginning of the 1990s?

The Annual Report offers judges, court

managers, and policy makers an authoritative guide to the demands that increasing

caseload volume places on state trial and

appellate courts.

Part I of the Annual Report examines

state trial court caseloads in 1991 and how

the 1991 experience fits with recent trends.

Part II describes the volume and trends in

state appellate court caseloads. The Annual

Report also contains detailed, state-by-state

caseload statistics, displays the overall

structure of each state court system on a

one-page chart, and lists jurisdiction and

state court reporting practices that may

affect the comparability of caseload information reported by the courts.

Copies of the report are available from

the Publications Coordinator, National

Center for State Courts, 300 Newport Ave.,

Williamsburg, VA 23187-8798, telephone

(804) 253-2000, ext. 390.

One of several statistical summaries found in the new NCSC publication, State

Court Caseload Statistics: Annual Report 1991.

Civil and Criminal Filings in U.S. District Courts and

State Trial Courts of General Jurisdiction, 1991

All U.S. District Courts:

 Criminal

 Civil

 Total

All General Jurisdiction State Courts:

 

 Criminal

 Civil

 Total

Source: National Center for State Courts, 1993.

Filings

45,735

207,742

253,477

3,843,902

9,366,543

13,210,445

Judges

649

649

649

9,502

9,502

9,502

70

320

390

405

986

1,391

Filings

per Judge

See FEDERALISM, page 4

ism is not helpful in arriving at a working

allocation of judicial business, nor does it

help the decision-making process much to

rely on generalized definitions of federal

interests.

Guidelines for a Principled

Approach to Federalism

Given that, historically and practically,

state and federal interests are inseparably

intertwined, how can one

arrive at what Senator Joseph Biden (D-Del.), for

one, recently called for: a

principled approach to

federal jurisdiction? Here

are some guidelines for

consideration, offered

with the reservation that

they are not capable of

mechanical application

and will still require a balancing of interests.

First, don’t assert national power without a

demonstrated need. This

presumption is grounded

on the traditional notion that criminal law

enforcement is primarily a responsibility of

the states, evidenced for example by our

historic aversion to a national police force.

But the presumption can be overcome by a

convincing demonstration that the perceived

evil—because of its seriousness, cost, or

impact on national interests—requires a

national solution.

Second, don’t expand federal jurisdiction if the resources are not provided to

make it effective. Resource limitations, of

course, affect both state and federal systems. But though federal policy makers

may believe that decisions about judicial

federalism should not be driven by considerations of court burdens or other cost considerations, the fact remains that the capacity of federal courts is controlled by the

resources appropriated for them. Even if

that capacity is elastic in the short run,

eventually choices must be made, if not at

the legislative level then at the judicial

level.

Third, realize that criminal laws are like

shotguns, no matter how carefully drafted.

For every pellet that hits the bull’s-eye,

many spray the periphery. Put differently,

criminal laws are subject to the law of

unintended consequences. Mandatory minimum sentencing laws illustrate the point;

though intended to impose severe punishment on major drug offenders, their principal impact has been on minor offenders

such as the mules and the lookouts. As a

result, federal courts are trying many cases

involving minute quantities of drugs (and,

incidentally, convicted small-time offenders are straining the capacity of federal

prisons), consequences that Congress did

not intend and of which many members are

not even aware.

The gap between the words of a statute

and its impact in the real world counsels

consideration in every case of two safeguards: (1) using automatic sunset clauses

that require congressional action to renew a

statute, and (2) conducting regular oversight hearings to gather information about

the actual operation of legislation, how it is

enforced by the executive branch, and how

it impacts the federal courts.

Fourth, don’t create federal jurisdiction

unless the states’ unwillingness or inability

to protect federal interests is clearly demonstrated. A perception of inadequacy of

state law enforcement may rest on anecdotal or local evidence. Although there may

be anecdotal evidence of some apparently

severe inadequacies of state criminal law

and enforcement—rape statutes, for example—a determination that a federal interest exists sufficient to justify national

legislation should be supported by a well-
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 3 • July 1993 • 3

concern to judges. It poses questions of the

proper role of the trial judge when faced

with this possibility and the correct manner

of addressing the issue while conducting an

independent sentencing review.

• Delays in certification of trial record—

certification delays affect all levels of review and seem avoidable because daily

transcripts are prepared. One central question was whether trial counsel should be

responsible for certifying the record in order to avoid delay while waiting for appointment and review by appellate counsel.

• Longer warrants of execution—a longer

time for carrying out executions (instead of

the current 24-hour period) would allow for

a more careful review of the particular case.

• Shifting of investigation fees—when a

federal court returns to a state court a habeas corpus petition that was filed in federal

court and contains unexhausted claims for

further proceedings, the investigation fees

should be borne by the state system.

• Exhaustion—federal courts return state

cases to the California Supreme Court as a

result of the petitioner’s failure to exhaust

state remedies, creating congestion and delay in the California Supreme Court. One

solution would be to modify state procedures so that exhaustion cases can be sent

directly to the state trial court.

The following federal issues were identified and discussed:

• Active case management during stays—

further education and training in active case

management techniques is needed when

stays of execution are in place to instill

public confidence that cases are being efficiently and properly scheduled and handled.

• Priority to capital habeas corpus writs—

district courts should consider a rule, similar to the rule now in place in the Southern

District of Florida, giving priority to capital

cases to avoid habeas cases being placed

low on calendar dockets once a stay has

been issued.

• Pre-petition investigation fees—standards are needed to determine what justification or preliminary showing is required

to obtain investigation fees and to determine their amount.

• First petition amendments—further

guidance and education is desirable for

dealing with the difficulties associated with

handling requested “amendments” to the

first petition both before and after the ruling

on it and in handling motions to reconsider

or reopen after the ruling.

• Mixed petitions with exhausted and

unexhausted claims—further education is

desirable for the efficient handling of mixed

petitions.

• The appropriateness of an evidentiary

hearing—instructions and development of

guidelines to assist courts in determining

when to grant an evidentiary hearing are

needed to deal with issues such as cause and

prejudice, “new rules” of law, mixed petitions, and the funding of investigators.

• Successive petitions—education and

discussion are needed on the post-McClesky

test for handling successive petitions, including the concepts of cause and prejudice, actual innocence, and application of a

“new rule” of law.

The three issues identified for joint exploration by judges of both systems were

(1) retention and compensation of counsel;

Ensuring Gender Fairness Is Issue at

State–Federal Courts Bias Conference

by Marilyn Roberts

(National Center for State Courts)

State courts have made a substantial

effort to identify and address gender bias

over the past 10 years. Federal courts have

begun the examination process.

Work yet to be done was the central

theme of the Second National Conference

on Gender Bias in the Courts, held March

18–21 in Williamsburg, Va. The Conference was attended by more than 150 state

and federal court judges, administrators,

and educators, representing 44 states, the

District of Columbia, Puerto Rico, and two

federal circuits. The wide representation at

this conference demonstrated a growing

recognition of gender bias in the courts and

the need to address it.

The main purpose of the conference was

to address issues that arise after gender bias

task force recommendations are made.

Gender bias task forces appointed by a

court or the bar are the primary vehicles for

examining courts and legal systems for the

existence of gender bias. State judicial leaders, the Conference of Chief Justices, and

the Conference of State Court Administrators have recognized the need to uncover

and address bias in the courts and have

passed resolutions urging state chief justices to appoint task forces on gender and

minority issues.

Small group sessions at the conference

afforded participants the opportunity to

share experiences and solutions to common

problems. The major issues discussed were

funding; the importance of institutionalizing change; stereotypes, indifference, and

hostility; dealing with backlash and special

interest groups; evaluation and monitoring;

gender, racial, and ethnic issues; and judicial education. There was also a preliminary one-day session for those who were

just beginning or had not yet completed the

task force process.

Thirty-two states now have or have had

task forces or committees on gender bias in

the courts, as well as the U.S. Ninth Circuit

and the District of Columbia Court of

Appeals. Four other state court systems are

exploring the issue. Some state court systems have accepted the fact that bias exists

based on the studies of other states and are

proceeding to frame solutions rather than

conduct surveys.

Judge Rosalyn Bell (Md. Ct. of Spec.

App.), chair of the conference, noted that at

both the state and federal level, every task

force or committee that has finished its

study has concluded that gender bias exists

in the particular court or legal systems

under study. All have recommended

changes to address the bias found. “Such

experience,” said Judge Bell, “indicates

that gender bias is a reality in the court

system of this country and judicial leaders

must move to address and eradicate it.”

The following were some of the major

points developed at the conference:

 • Education for judges and court staff

about gender bias is critical to any meaningful change in the way courts do business. Many states and national organizations have developed new curricula and

teaching tools for addressing this issue, but

there are still many more judges and court

staff who have not been reached by these

programs and tools.

• Court gender bias task force recommendations are not ready solutions that can

be implemented in a few weeks, or even in

a few months. While some recommendations can be addressed easily, the entire

process of instituting reform and effecting

permanent change requires a long-term

commitment from the state and federal judiciary—a commitment that must be made

to eradicate gender bias from the courts.

• Funding is a factor for the task force

process and is important for effective implementation of task force recommendations.

It is possible, of course, to implement some

changes with little or no additional funding.

However, without some ongoing structure

to monitor the implementation and maintain the momentum, many task force recommendations are likely to go unheeded.

For real change to occur, the follow-up

effort must rest with some permanent group

within the court system, such as an implementation committee or specific staff in the

administrative office of the courts. Minimal staffing of such an effort requires a

commitment of funds. Other changes such

as court rule and form revision and development of educational programs also require the commitment of additional resources.

The National Association of Women

Judges, the Women Judges Fund for Justice, and the National Center for State Courts

jointly sponsored the Williamsburg conference, which was funded by a grant from the

State Justice Institute and the Hunt Alternatives Fund.

Historic Union Station in Tacoma, Wash.,

now serves as the centerpiece of a federal

court complex that includes 10 courtrooms

and chambers for U.S. district, bankruptcy,

and magistrate judges. The complex also

houses the offices of court clerks, petit and

grand jury facilities, a law library, probation and pretrial services offices, a U.S.

marshal’s office, and U.S. attorney offices.

Tacoma’s Union Station was built from

1909–1911 to serve as Tacoma’s rail passenger facility for the Northern Pacific,

Great Northern, and Oregon–Washington

railroads. The Beaux-Arts style terminal

opened to much fanfare and acclaim on

May 1, 1911. The building was used as a rail

passenger terminal until June 14, 1984,

when the last Amtrak train left. Abandoned

shortly thereafter, it was threatened with

destruction.

The Tacoma community sought ways to

save the building. One resident suggested

in a letter to the editor of the local newspaper that it be used for federal courts. The

seed planted by the letter grew into a major

project involving the city, state, and U.S.

governments, each of which contributed to

parts of the restoration project and its transformation to serve the U.S. District Court

for the Western District of Washington. The

“historic narrative” for the dedication ceremonies on February 12 of this year noted

that “this building will serve as a landmark

structure for the city, presenting an image

of dignity and justice.”

California State–Federal Judicial Council Sponsors Capital

Case Symposium; Issues Are Identified for Dialogue, Solutions

Focus On: New Court Complex

Tacoma Saves Historic Rail Station for

Use by Judges, Court Administrators

(2) the creation of an appellate defender

system; and (3) follow-up joint educational

programs.

Problems common to both systems include difficulties in obtaining counsel at

trial and on appeal in habeas corpus proceedings, inadequate compensation and

disparities in compensation between the

two systems, and the lack of standards or

“benchmarks” for compensation of counsel. Cooperation and coordination would

help ease the strain created by the competition for scarce legal resources.

A suggestion for establishing continuity

in the handling of capital cases to assure

quality of representation and efficiency of

case management was the establishment of

an appellate defender organization, one that

would mirror the state attorney general’s

office and handle appeals through both court

systems.

State and federal judges agreed at the

symposium that when education programs

are planned in their respective systems,

each system should consider involving

judges from the other system to provide

opportunities for continuing dialogue on

capital habeas corpus issues.

The California State–Federal Judicial

Council, through the planning committee

of the State–Federal Capital Case Symposium, is willing to assist the state–federal

judicial councils of other states in planning

similar symposia. Members of the planning

committee were Judge William B. Enright

(U.S. S.D. Cal.), Chair; Judge Alexander H.

Williams III (Cal. Sup. Ct.); Judge Herbert

B. Hoffman (Cal. Sup. Ct.); and Mark

Mendenhall, Assistant Circuit Executive of

the U.S. Ninth Circuit Court of Appeals.

Requests for further information about

the California symposium and assistance

should be directed to Mark Mendenhall,

Assistant Circuit Executive, Office of the

Circuit Executive, U.S. Courts for the Ninth

Circuit, 121 Spear Street, Suite 204, P.O.

Box 193846, San Francisco, CA 94119-

3846, telephone (415) 744-6150; fax (415)

744-6179.

A number of issues affecting both state

and federal courts were explored in depth at

the first California State–Federal Capital

Case Symposium in San Francisco last

October.

While some issues were discussed only

in the context of state or federal judges, all

of the issues pose significant challenges to

both systems.

The day-and-a-half symposium, attended

by 12 state judges and 38 federal judges,

was organized by Chief Justice Malcolm

Lucas (Cal. Sup. Ct.) and Chief Judge

Clifford Wallace (U.S. 9th Cir.).

Issues, and the significant points made

about them, relating primarily to state judges

included the following:

• Voir dire—trial judges need to be more

aware, through education, of the importance of proper voir dire to ensure fair trials

and minimize challenges on appeal or by

habeas corpus proceedings, particularly

when qualifying jurors to make capital case

decisions.

• Ineffective assistance of counsel—“inadequate representation” as a trial strategy

to set up Sixth Amendment issues in habeas

corpus proceedings has become a matter of
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 3 • July 1993

Interjudicial Affairs Office • Federal Judicial Center • One Columbus Circle, N.E. • Washington, DC 20002-8003

Georgia—The State–Federal Council of

Georgia met in Savannah on June 11. The

council discussed plans for indigent defense counsel in criminal cases. Selected

state judges presented and explained the

three systems used in the state courts: contract, appointment, and public defender.

The federal public defender system was

also explained. Two particular issues

brought up during the discussions were

ways in which the defendant could be required to repay some of the costs of counsel

and the feasibility of requiring payment of

counsel fees as part of the terms of probation.

Iowa—The four members of the State–

Federal Judicial Council of Iowa met in

Des Moines on December 17, 1992. The

council addressed items such as the sharing

of judicial education programs, the sharing

of courtroom space and facilities in emergency situations, the joint settlement of

related state and federal cases (particularly

asbestos cases), and the expansion of the

membership of the council. Tentative agreement was reached that one federal appellate

judge and one state trial judge would be

added to the council. The meeting was

reported by Chief Judge Charles R. Wolle

(U.S. S.D. Iowa).

Kansas—State and federal judges from

Kansas met in Vail, Colo., on June 11, to

explore the formal creation of a state–federal judicial council for their state. Chief

Judge Patrick Kelly (U.S. D. Kan.) presided over the meeting, attended by 6 federal judges and 21 state judges. Judge Chuck

Worden (Kan. State), the new president of

the Kansas Judges Association, told the

conference that he “strongly endorsed” the

formation of the judicial council and set a

date in September for the formal organization meeting. District Judge Sam A. Crow

(U.S. D. Kan.) was appointed the federal

coordinating judge for the organizational

effort. Other issues taken up at the meeting

included the federal court mediation program; state/federal budget problems; sentencing guidelines implemented in state

courts; new federal jurisdiction of state

sources for state courts. The council concluded that “there was no ready solution to

the problem of resources for the state judiciaries but that others in the legal profession should strive to educate the legislature

or legislators so that they will better understand the needs of the judiciary.” The council also considered the issue of the repeal of

in-state plaintiff diversity jurisdiction. Discussion of proposed trial advocacy training

for lawyers and selected judges was postponed until the next meeting. The next

meeting was set for late September in Richmond.

West Virginia—An organizational meeting of the West Virginia State–Federal Judicial Council was held by telephone conference call on December 4, 1992. The meeting was inspired by Chief Justice Thomas

E. McHugh (W. Va. Sup. Ct. App.) and

Chief Judge Charles H. Haden II (U.S. S.D.

W. Va.), both of whom attended the National Conference on State–Federal Judicial Relationships in Orlando, Fla., in April

1992. The West Virginia council will be

composed of 13 members, including West

Virginia Supreme Court of Appeals justices, state court trial judges, federal district

judges from each of West Virginia’s two

federal districts, two state court administrators, and the president of the West Virginia

State Bar Association. The council will

meet twice a year, one meeting to occur in

conjunction with the West Virginia Judicial

Association. The next meeting of the council was set for April, 1993.

The council met formally for the first

time on April 29 in Wheeling, with the

following agenda: resolution of scheduling

conflicts, time standards, alternative dispute resolution, tracking habeas corpus

cases, standards for appointment of counsel, jury management, probation coordination, joint training of judicial personnel,

automation issues, complex litigation, facilities of state and federal courts, interpreter services and other accessibility issues, local court rules, pro bono projects,

and pro se litigation.

crimes, including the proposed Violence

Against Women Act now pending in Congress; and the assistance of federal pro se

law clerks in finding a uniform way of

handling related state matters.

Ohio—Nine state judges and five federal

judges, one state court administrator, and a

federal court administrator attended the first

meeting of the Ohio State–Federal Judicial

Council last December in Columbus, Ohio.

Chief Justice Thomas J. Moyer (Ohio Sup.

Ct.) and Chief Judge Gilbert S. Merritt

(U.S. 6th Cir.) presided at the meeting. The

first item on the agenda was a brief review

of the procedure adopted by the Ohio Supreme Court for certification of state law

questions by federal courts. According to

comments during the discussion, the system was working satisfactorily. Extensive

discussion covered the issue of death penalty habeas corpus cases. Ohio had 125

state prisoners under the death sentence at

that time. Because cases relating to these

capital convictions were reaching the federal courts, the council members discussed

at length procedures used by the state courts

to grant stays of execution, particularly as

those procedures apply to cases pending in

state court under post-conviction review

proceedings. The judges agreed that there

should be cooperation between the state

and federal systems to ensure that a stay of

execution is entered properly in all capital

cases through the first round of federal

habeas corpus review. A communications

protocol was adopted in the event of problems concerning a stay or other deadline in

a capital case.

Participants in the meeting discussed

other issues: the funding and operation of

the death penalty resource center and personnel at that center; the availability of

bankruptcy judges to conduct a seminar for

state judges on bankruptcy law and the

effect of automatic stay provisions; and

scheduling conflicts and the willingness of

federal judges to give precedence to trial

dates set in state courts and to communicate

with state judges about scheduling problems in particular cases.

The council will meet again in December 1993.

Tennessee—The new Tennessee State–Federal Judicial Council met on June 9 in

Chattanooga with six state judges and four

federal judges in attendance. Chief Justice

Lyle Reid (Tenn. Sup. Ct.) presided. Three

justices of the Tennessee Supreme Court

and two federal judges were guests at the

meeting. Chief Justice Reid announced that

the practice of inviting the federal judges to

participate in each of the state judicial conferences would continue as a matter of

permanent policy. The first item on the

agenda related to the advisability and desirability of promoting an objective judicial

evaluation survey by an independent agency.

The participants agreed that a “properly

constructed and administered survey should

be an effective tool to aid judges in improving their performance.” Chief Justice Reid

appointed a three-person committee to work

on the project. Other matters taken up at the

meeting were certification of state questions of law by federal district judges, calendar conflicts, legislative developments,

and joint judicial education programs. Federal judges will be invited to attend the

annual update on state law programs to be

held in October. The next meeting of the

council was set for October 28–29 at Falls

Creek Falls State Park.

Virginia—Chief Justice Harry Carrico (Va.

Sup. Ct.) welcomed 10 members of the

State–Federal Judicial Council of Virginia

at a meeting on May 4 in Richmond. Samuel

Phillips, Circuit Executive for the U.S. 4th

Circuit Court of Appeals, reported that the

State Justice Institute had approved the

grant for the Fourth Circuit Conference on

State–Federal Judicial Relationships, tentatively scheduled for one-and-a-half days

in the spring of 1994 in Williamsburg, Va.

A planning committee will be set up to

make arrangements for the conference.

Following an update on the federalization

of traditional state crimes, which included

discussion of the proposed Violence Against

Women Act now pending in Congress, the

Council took up the matter of lack of reNational Roundup of Activities of State–Federal Judicial Councils

State–Federal Judicial Observer

A joint publication of the Federal Judicial Center and the National Center for State Courts

TECHNOLOGY, from page

1ing technology.

CTL is located at the headquarters in

Williamsburg, Va., and is available to judges

and court administrators for viewing and

testing of many kinds of technology. The

CTL contains an array of hardware, court

application software, data and text database systems, imaging components, and

network and communications systems, all

of which are demonstrated in a non-commercial environment.

Courtroom technology demonstrations

are held in the moot court room of the

adjacent Marshall-Wythe School of Law of

William and Mary College. CTL demonstrations can also be arranged at local court

sites.

CTD surveys courts nationwide to collect information on technology applications. As the only centralized depository of

its kind, the CTD helps courts locate other

judicial systems with similar needs and

helps identify solutions to their technology

problems.

Four current volumes of CTR explore a

variety of new technologies in the courts

and focus on the process of acquiring, implementing, and managing the technology. A

prospective Volume 5 will target electronic

imaging and optical disk technology.

The CTB is a bimonthly newsletter that

highlights current court projects and surveys the court technology landscape.

Requests for further information about

any of the above projects, requests for technology assistance, and requests for receipt

of the two publications should be made to

Court Technology Programs, National Center for State Courts, P.O. Box 8798,

Williamsburg, VA 23187-8798, telephone

(804) 253-2000, fax (804) 220-0049.

democracy.” A decision to impose more

severe sentences for offenses because Congress considers state sentences to be inadequate should be supported by a demonstration of a national need to override the

choices made by state policy makers.

Conclusion

Simply relying on the concept of federalism does not advance the cause of arriving at a principled and practical allocation

of responsibility for the administration of

criminal justice between the state and federal courts. It may be possible, however, to

develop guidelines that could contribute

significantly to attaining this objective.

While guidelines will invariably be imprecise and complex, and may at times seem

contradictory, they could nevertheless make

a contribution to rational and informed decision making.

supported finding that a genuine national

problem exists.

Fifth, if legislation is adopted to bring

into play the resources of national investigatory agencies, its scope should be limited

to those cases where such resources are

needed. Effective prosecution of large-scale

and complicated multistate criminal activity (for which federal courts are the appropriate forum) requires the resources of national agencies. But statutes are rarely

drafted to limit their reach to such largescale offenses, and doing so is not easy.

Sixth, don’t ground national legislation

on dissatisfaction with the legislative judgments of states about criminal law enforcement and sentencing policies. Congress

should recall the historic role of states as, in

Justice Brandeis’s words, “laboratories of

FEDERALISM, from page 2