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 10 • September 1995

Presentations by Rome historian Ted

Champlin, political economist Uwe

Reinhardt, and crime writer Elmore Leonard

highlighted the sixth annual Harold R.

Medina Seminar for State and Federal

Judges on Science and the Humanities at

Princeton University in June.

Twenty-four federal judges and 18 state

judges from across the United States attended the five-day seminar.

Champlin, a professor in the Department of Classics at Princeton, presented a

new perspective on Roman history, claiming that Rome actually didn’t decline in the

period after the Republic, but prospered

and made its greatest contributions then.

Reinhardt, in Princeton’s Department of

Politics, discussed the current health-care

controversy and health-care reform proposals and reviewed for the judges different

approaches to health care in the twentyfirst century.

Leonard, talking to the judges as part of

an evening program, recounted his experiences in writing crime novels, including his

techniques of research and letters he received from readers. He also read passages

from one of his recent novels.

The seminar opened with a discussion

by molecular biology professor Shirley

Tilghman on the human genome project.

The first full day of the seminar was devoted to science presentations, with Professor David Wilkinson of the Princeton physics faculty discussing “Frontiers of Cosmology,” a presentation about such cosmic

phenomena as black holes, the “big bang”

theory of creation of the universe, and some

of the recent discoveries of the Hubble

Telescope.

The chair of Princeton’s Molecular Biology Department, Arnold J. Levine, finished the science day with a discussion of

“Frontiers of Molecular Biology—Amazing Developments and Difficult Policy Issues,” which featured comments about the

discovery of DNA and many of the issues,

scientific and moral, flowing from it.

The seminar also included the following:

• a lecture on pre-Columbian art by

Princeton art curator Gillete Griffin;

• a lecture on religious pluralism by

Professor Chester Gillis of the Georgetown

University Department of Theology;

• a commentary on writing biographies

by Princeton English Professor Arnold

There are currently 32 active state–

federal judicial councils in the United States

and its territories. The make-up, structure,

meeting schedules, and manner of meeting

vary greatly. Some councils are small, with

as few as four members, have very little

formal structure, and meet informally. Other

councils exceed 20 members, have a formal

organizational structure with a written charter, and function with a well-developed

schedule of meetings and planned agendas.

But success doesn’t flow from structures or schedules, and it is ultimately measured by results, by what is achieved.

One successful state–federal judicial

council—successful in terms of meeting

regularly and undertaking discussions and

specific activities to improve the judiciary—

is the California State–Federal Judicial

Council.

Consisting of seven state and seven federal judges who serve staggered three-year

terms, the California Council meets twice a

year.

The following are four of the more recent, successful projects of the California

council:

• Sponsorship of a series of capital case

symposia, usually occurring twice a year in

different parts of the state, for state and

federal judges to promote understanding of

the pitfalls in the handling of capital cases,

the tensions that arise between state and

federal judges while handling them, and the

procedures that can reduce tensions and

expedite the handling of such cases. The

symposia held by the council in 1994 attracted more than 40 state and federal judges

for each of the two sessions.

• Promotion of a “public confidence in

the judiciary” program, first by including

the subject on the agendas of several meetings of the council, and then by directing

the preparation of a resource list of judges

and programs involved in “public confidence in and understanding the judiciary.”

The list contained 28 contacts in different

parts of the state and included judicial members of local and statewide bench, bar, and

media committees; judicial history programs; law day committees; “meet the

judges” programs; and bar association public relations, public information, and public

outreach committees.

• Conduct of a court interpreters education program for state and federal judges,

by bringing court interpreters to council

meetings to air grievances and develop

appropriate standards for court interpreters.

• Sponsorship of a program to provide

law clerks for state judges to assist in the

handling of capital cases and the conduct of

legal research necessary for such cases,

funded by a grant from the State Justice

Institute. The grant application was prepared by the California council.

Council meetings have also been used

for discussions between state and federal

judicial members on a wide variety of topics. The following are some of the subjects

discussed at recent council meetings:

• early warning system for habeas cases;

• certification of state law questions;

• federal court study committee recommendations;

• coordinating multiparty and mass tort

litigation;

• resources for coordination of large

cases;

• certification of inmate grievance procedures;

• cross designation of U.S. attorneys and

district attorneys for prosecution of

crimes;

• FAX filing in California state courts;

• CLE requirements for federal law clerks

and legal staffs;

• impact of federalization of crimes; and

• long-range planning for the courts.

California Chief Justice Malcolm M.

Lucas, commenting on the success of the

council, said that “as far as I am concerned

the success of a state–federal judicial council starts at the top. [A council] succeeds

because of the dedication and devotion of

judicial leaders. Chief Judge [Clifford]

Wallace and I have worked together constantly for almost five years on our council.”

“We alternately co-chair our council

meetings,” said Justice Lucas, “and we

encourage perfect attendance of our members.”

Chief Judge Wallace, a longtime supporter of the council, agreed: “Active leadership on a council is key, and so is commitment by the members and follow-up by the

staff to see that the council’s ideas are

implemented. The California council has

been fortunate to attract dedicated state and

federal judges and court administrators who

view the council as an important vehicle for

cooperation between the two systems.”

Other factors contributing to the success

of the council, according to Justice Lucas,

are:

• equal numbers of state and federal

judges on the council;

• inclusion of bankruptcy judges on the

council, “which has added another dimension to our meetings”; and

• selection of state judges for membership who have had some federal experience, such as working in a U.S. attorney’s

office, and selection of federal judges who

have had some experience with the state

judiciary.

The California council also has strong

staff support through the offices of the

California State Court Administrator and

the Office of the Circuit Executive of the

U.S. Ninth Circuit Court of Appeals.

William Vickery, California state court

administrator, has designated a member of

by James G. Apple

State Trial Judge Selected as New President

of National Center for State Courts

Judge Roger K. Warren

of the Sacramento, California Superior Court has

been selected president of

the National Center for

State Courts (NCSC). He

is the second judge to head

the NCSC, an independent,

nonprofit organization in

Williamsburg, Va., established in 1971 to provide

administrative and leadership support for state court

systems.

Judge Warren is the

fourth president of the organization. He succeeds

NCSC President Larry

Sipes, who resigned to return to his home

state of California.

Appointed to the Sacramento Municipal

Court in 1976, Judge Warren was executive

director of the Legal Aid Society of Sacramento County before becoming a judge.

Judge Warren will begin his tenure as

NCSC president in March. Addressing a

group of chief state court administrators at

the annual meeting of the conferences of

chief justices and court administrators in

August, he said his first concern will be

“about the people we serve.”

“This is a critical time for the state

judiciaries,” said Judge Warren. “Courts

must learn new and more efficient ways to

use existing resources; technology is creating solutions for court operations, yet raising new questions; many citizens have lost

confidence in their judicial system. The

National Center is taking tangible steps to

help with these and other issues, and I am

excited about the opportunity to make a

difference in the state courts

across this nation.

“I intend to be very

proactive,” he said. “I am

going to be spending the

next few months learning

who the players are on the

national scene and how different agencies and organizations interact.”

Chief Justice Ellen Ash

Peters (Conn. Sup. Ct.),

chair of the board of directors of the NCSC, said that

“Judge Warren is an outstanding jurist, an innovative administrator, and a

sought-after educator who

is uniquely qualified to lead the National

Center for State Courts into the next century.”

A five-person search committee from

the NCSC recommended Judge Warren—

the search committee was chaired by Chief

Justice Thomas J. Moyer (Ohio Sup. Ct.).

Judge Warren was elected the first presiding judge of the consolidated Sacramento Superior and Municipal Courts in

1993. He served as the presiding judge of

the Superior Court in 1992. On behalf of the

consolidated courts he received the 1992

Ralph N. Kleps Award from the California

Judicial Council for improvement in the

administration of the courts.

Judge Warren previously served as presiding judge of the Sacramento Municipal

Court, presiding judge of the appellate department of the Superior Court, and as

presiding judge of the Sacramento Juvenile

State and federal judges visited Princeton

University’s famous cyclotron in the Department

of Physics during the 1995 Harold R. Medina

Seminar. Left to right: Princeton physics Professor David Wilkinson; Justice Karla M. Gray (Sup.

Ct. Mont.); Susan Aspen; Judge Marvin E. Aspen

(U.S. N.D. Ill.); Judge Richard M. Bilby (U.S. D.

Ariz.); and Judge Norman W. Black (U.S. S.D.

Tex.). See WARREN, page 3

Inside . . .

Chief Justice Burger 2

Judge William W Schwarzer 2

Judges Obtain Advanced Degrees 3

Handling of Prisoner Pro Se Cases 4

1995 Harlan Seminar 4

See ANATOMY, page 3

The Anatomy of a Successful State–Federal Judicial Council

Roman History, Health Care, and Crime Fiction

Presentations Highlight 1995 Medina Seminar

Judge Roger K. Warren (Cal.

Super. Ct.), new president of the

National Center for State Courts

See MEDINA, page 3
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 10 • September 1995

OBITER DICTUM

Rya W. Zobel, 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

Maria Schmidt, 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, Va.; Professor Ira P. Robbins, Washington College of Law, American

University, Washington, D.C.

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.

State–Federal Judicial Observer

a joint publication of the

Federal Judicial Center and the National Center for State Courts

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.

During the three-and-one-half years of

its existence, this column has been devoted

to issues of judicial federalism and discussions of various ideas and principles relating to that subject. This particular contribution to Obiter Dictum is a departure from

that “tradition,” in that it relates to an individual rather than an idea, principle, or

proposal. But the individual is worthy of

mention here because of his role in promoting national-level interest in and discussions about judicial federalism and its importance to federal and state courts.

Senior Judge William W Schwarzer (U.S.

N.D. Cal.), recently retired director of the

Federal Judicial Center, brought to the Center an abiding interest in the subject. Before

his appointment he had served as the first

chair of the Judicial Conference Committee on Federal–State Jurisdiction and gave

that committee its initial sense of direction.

Upon his arrival at the FJC in the spring

of 1990 he was determined to enhance the

Center’s historic role in exploring state–

federal issues and in promoting state–federal cooperation

for the benefit of both the federal and state court systems.

One of his first actions was

to dispatch his law clerk to

interview federal and state

judges in different parts of the

country about cooperative efforts in handling cases and to

record examples of state–federal cooperation, to prepare a

major article on the subject.

At the same time, Judge

Schwarzer began working

with the State Justice Institute, the National Center for State Courts,

and the Judicial Conference to sponsor,

plan, and conduct a nationwide conference

on judicial federalism, a first of its kind. For

the conference, Judge Schwarzer and two

FJC staff members produced a seminal

paper, Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts. In its own words, “this article

tells the stories of how several state and

federal judges forged into uncharted territory to coordinate complex litigation pending in their courts. These stories offer a

cornucopia of ideas and lessons for both

judges and lawyers.”

Judge Schwarzer presented the key parts

of this paper at the first National Conference on State–Federal Relationships, held

in Orlando, Fla., in April 1992. His comments served as one of the major addresses

at the conference and provided the framework for discussions and other presentations. Chief Justice Rehnquist referred to it

in his videotaped address to the participants.

The conference itself was a watershed

event. It was attended by more than 325

state and federal judges, state and federal

court administrators, and legal scholars. It

not only raised the consciousness of those

attending about the possibilities and benefits of cooperation between state and federal judges and state and federal courts, but

it also provided the stimulus for follow-up

actions and events at national, regional, and

local levels.

One of the immediate consequences of

the National Conference was Judge

Schwarzer’s reestablishment, in April 1992,

of the Interjudicial Affairs Office at the

Federal Judicial Center. A major responsibility assigned to that office was the promotion of state–federal judicial cooperation

and discussion of issues of judicial federalism. The office, since its creation, has published a manual on organizing and maintaining state–federal judicial councils to

assist judges in their formation and continuation. It has also surveyed and regularly

monitors all existing councils and has crethan other judges and lawyers.”

On the other hand, he knew that

much work needed to be done to make

both state and federal courts more

effective in the face of a steady increase in litigation that was just beginning as he took office. Not the least

of his contributions was to urge creation of the National Center for State

Courts. He was also a strong proponent of judicial education. He knew,

as Chief Justice Rehnquist said in

eulogizing his successor, that “the

system of justice . . . was staffed by

fallible human beings, and he bent his

efforts to see that these people had all

the help in the way of training and

education that they could in order to

succeed in their difficult task.” ❏

CHIEF JUSTICE WARREN E. BURGER

1907–1995

Warren E. Burger, who served on

the U.S. Supreme Court from 1969 to

1986, took seriously his title of “Chief

Justice of the United States.” In that

role, he did much to promote state–

federal judicial relations. He urged

the creation of state–federal judicial

councils in his first “State of the Judiciary Address” to the American Bar

Association in 1970, and in 1971 he

reminded the National Conference

on the Judiciary that “the basic structure of the courts in this country contemplated that state courts would deal

with local matters while federal courts

would serve a limited and narrow

function. I hope we will never become so bigoted as to think that state

judges are any less devoted to the

principles of the federal Constitution

Judge Schwarzer Revived Interest in Judicial

Federalism; Left National Legacy

Photo by Harris & Ewing, Collection of the Supreme Court of the United States

by James G. Apple

Chief, Interjudicial Affairs Office

Federal Judicial Center

ated a database of information about them.

It also began publication of this newspaper,

the State–Federal Judicial Observer, devoted to publicizing events and issues related to judicial federalism.

Other events followed the Orlando conference. The Virginia Law Review published the proceedings of the Orlando Conference (Issue no. 8, vol. 78, Nov. 1992) in

an issue referred to by California Chief

Justice Malcolm M. Lucas as the “bible of

judicial federalism.” Two regional conferences on state–federal relationships have

been held: one in Stevenson, Wash., in

1993, for states in the region of the U.S.

Ninth Circuit; and the other in Williamsburg, Va., in 1994, for states in the region of

the U.S. Fourth Circuit. Judge Schwarzer

presented major papers at both of these

conferences.

Perhaps most significantly, the Orlando

conference had a direct effect on the creation of new state–federal judicial councils

and the revival of dormant ones. Immediately prior to Orlando, the number of active

state–federal councils was less than 20. An

exact accounting is not possible because of

the unavailability of information and statistics. After the Interjudicial Affairs Office began tracking

councils around the United

States in 1992, better statistics

became available. By the time

of Judge Schwarzer’s retirement in March of this year,

there were 32 active state–federal councils in the United

States and its territories.

Another major event,

tangentially related to matters

of judicial federalism, occurred

as a result of the efforts of

Judge Schwarzer and his interest in state–federal cooperation. In November 1994, the first national

conference on mass torts was held in Cincinnati, Ohio, planned by the FJC, the State

Justice Institute, the National Center for

State Courts, and the U.S. Judicial Conference Committee on Court Administration

and Court Management. The Cincinnati

conference featured both state and federal

judges as speakers and as participants, and

one of its major themes was cooperation

between state and federal courts in the

handling of mass tort litigation. Judge

Schwarzer made a major substantive presentation at the conference. The conference

proceedings have been compiled and printed

in a recent issue of the Texas Law Review.

One additional major contribution of

Judge Schwarzer to the national discussion

on judicial federalism was his co-authorship, with FJC Deputy Director Russell

R.Wheeler, of an FJC long-range planning

paper titled On the Federalization of the

Administration of Civil and Criminal Justice, published in 1994. The final section of

that paper contains a set of guidelines “to

preserve a limited role for the federal courts”

that was developed by Judge Schwarzer for

a national conference on judicial federalism sponsored by the Brookings Institution

in 1993.

Judge Schwarzer, in his five years at the

Center, left several important legacies. The

Center produced an unprecedented number

of manuals, booklets, and papers on many

different and important topics of interest

and use to judges, including case management, scientific evidence, complex litigation, and the future of the courts. The number and types of educational seminars and

conferences for both judges and court administrators were significantly increased,

and the number and scope of research topics were expanded, all during his tenure as

director and as a result of his leadership.

But as important a legacy as any may be the

interest and discussions he provoked on the

subject of judicial federalism, and the focus

he provided on its importance to the court

systems of the United States. ❏

J U D I C I A

F

L

E D E R A L

C E N T E R

Judge William W

Schwarzer
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 10 • September 1995 • 3

by James G. Apple

Late Associate Justice of the U.S. Supreme Court Tom C. Clark, first director of

the Federal Judicial Center, observed in a

1974 law review article about the Center

that “when I first entered law practice many

years ago, the judges were so jealous of

their prerogatives that a lawyer might as

well have turned in his shingle if he suggested that judges needed to go to some sort

of school.”

Justice Clark was describing in his article the enthusiasm with which federal

judges had embraced judicial education

programs offered by the Center. But even

Justice Clark would probably be surprised

at the success of a formal course of study for

state and federal judges at the University of

Virginia Law School in Charlottesville, Va.,

that leads to a Masters of Laws (LL.M) in

the Judicial Process degree.

Founded in 1980 by visionary Virginia

Law School Professor Daniel H. Meader,

the program has graduated over 200 state

and federal judges from every part of the

United States. Although some trial judges

have been admitted, the program has been

mainly designed for, and largely appealed

to, appellate judges.

Judge James A. Wynn, Jr.(N.C. Ct. App.),

a 1995 graduate of the program, said it was

“probably the best learning experience of

my legal career, law school included. It

provided a unique opportunity, after practicing law and sitting as a judge, to bring to

an outstanding academic forum many of

the lingering questions that arise in law.”

His observations were seconded by Senior Judge Peter Beer (U.S. E.D. La.), who

graduated in 1986. “The opportunity to

participate in the program was one of the

best experiences I have ever had as a district

judge,” he said. “It was a first-class operation in every way, from the outstanding

calibre of the faculty to the serious and

continuing interest of all the participants.

The chance for interaction with the state

judges was a substantial plus.”

The requirements for the programs are

rigorous: a six-week residential course of

study (including final examinations) at the

Law School, for two successive summers,

plus the preparation and submission of a

thesis.

Priority is given to judges of state supreme courts, state intermediate appellate

courts, and U.S. courts of appeal. Each

class is limited to 30 judges.

The program was in jeopardy in 1991

because of problems with funding and finding qualified applicants. It was saved by the

intervention of loyal alumni of the program. A major reason for the effort to save

it was the impact it was having on the

appellate judiciary in the United States—

with 1100 appellate judges in the state and

federal systems, the program had provided

advanced education for 10% of these judges.

One major change in the program that

occurred as a result of the crisis was the

inclusion of a “vacant” summer when no

classes would be conducted.

Six classes of judges graduated from the

program in 1982, 1984, 1986, 1988, 1990,

and 1992. The most recent graduates received their diplomas at the regular graduation ceremonies of the university in May

1995.

Professor George A. Rutherglen, current administrator of the program, said that

the change has been successful. He anticipates continuing the program on that basis.

He noted, however, that “a more serious

question now is sources of funds.” Because

of possible reduction or loss of funds from

the State Justice Institute, the program must

“actively seek funds from states that send

judges to the program.”

The program tries to achieve as much

geographical diversity as possible. As of

June of this year 46 states, Puerto Rico, and

the District of Columbia have been represented in the seven graduating classes.

The program has included 26 federal

judges and 182 state judges. Of the total

federal judges, 7 have been circuit court of

appeals judges; the remainder have been

federal district judges, except for 1 bankruptcy judge.

Forty-six state supreme court justices,

120 intermediate appellate court judges,

and 16 state trial judges have participated in

the program.

Expenses for the program are approximately $9,000 per judge for each residence

session, or $18,000 for the total program.

For most judges, all or part of these expenses are covered by allowances from

state judicial education budgets. The Federal Judicial Center has covered part of the

costs of attendance for federal judges.

The course of study includes four separate areas of concentration, from which a

judge may choose one: historical, jurisprudential, comparative, and interdisciplinary.

have been planted for the organization of

the three regional councils: in Los Angeles,

eastern California (Sacramento area), and

southern California. The purpose

of the regional

and local councils is to take the

work of the

state–federal

council one step

closer to the dayto-day work of

the judges from

both systems.

 There are at

least 18 states

that do not have

state–federal judicial councils.

Reasons given

for the lack of action in those states often

reflect an ignorance of the potential for

such councils.

One state judge remarked that there was

no reason for a council in his state because

“we get along well with our federal judges.”

Such an attitude undervalues the real potential of state–federal judicial councils, as

exemplified by the one in California—joint

action and activities on issues of common

concern, discussing and working out common solutions to common problems, and

providing ideas for sharing resources during times of scarcity.

The California council is not the only

successful council in the United States, but

it amply illustrates the worth of the councils

and provides a formula for their success.

Considering its past and the enthusiasm of

its present leaders, a safe prediction to

make about the California council is the

same one that was made 15 years ago about

it: “Unlike some other councils across the

nation, dormancy is not likely to be the fate

of California’s State–Federal Judicial Council.” ❏

State and Federal Judges Return to University for Advanced Law Degrees

Judicial “Students” Take Exams and Write Theses to Earn Master of Laws Diploma

Chief Justice Malcolm M.

Lucas (Sup. Ct. Cal.)

Chief Judge J. Clifford

Wallace (U.S. 9th Cir.)

Provide strong leadership for California

State–Federal Judicial Council

his staff, David Halperin, to assist the council, and Mark

Mendenhall, assistant circuit executive for the

U.S. Ninth Circuit Court of Appeals, provides

staff support

from the federal

side.

These staff

members aid in

planning meetings, setting

agendas, contacting members and

speakers about

times and places

for meetings, and preparing minutes and

follow-up papers for the council.

The California council, although formally organized with a charter in October

1988, actually came into existence on September 29, 1980, when state and federal

judges met in Monterey, Cal., in conjunction with the annual meeting of the California Judges Association.

State and federal judges formally organized the California council in 1988 and

approved a charter for the organization on

October 27 of that year. According to the

council’s charter, the Chief Justice of California is an ex officio member of the state

delegation and appoints the other delegates

from the state courts. The Chief Judge of

the U.S. Ninth Circuit Court of Appeals (or

designate) is the ex officio member of the

federal court delegation and appoints the

other federal representatives.

A recent project of the council has been

to stimulate the organization of regional

councils within the state. As a result of

discussions at several council meetings and

follow-up actions and meetings by state

and federal judges in different areas, seeds

ANATOMY, from page 1

State and federal judges ponder a legal problem in one of the lecture halls at the University

of Virginia Law School during a 1994 summer class of the Law School’s graduate judges

program that leads to a Master of Laws Degree in the Judicial Process.

Typical courses for a program are Anglo–

American jurisprudence, law and economics, contemporary private law, comparative

legal institutions (U.K., German, and European systems of law), courts and social

science, chemical hazards, government

regulation and private liability, contemporary legal thought, courts and corporate

governance, and issues of law and medicine.

Classes are taught either by permanent

members of the University of Virginia Law

School faculty or by visiting professors.

The program also has a six-judge advisory committee of five state judges and one

federal judge. The committee is chaired by

Justice Elizabeth B. Lacey (Va. Sup. Ct.).

Applications are being accepted by the

Law School for a class of judges that will

begin study during the summer of 1996 and

graduate in the spring of 1998.

Interested judges should write or call

Professor George Rutherglen, Graduate

Program for Judges, University of Virginia

School of Law, Charlottesville, VA 22903-

1789, phone (804) 924-4787.

The National Judicial College at Reno,

Nev., also offers an advanced degree program, in cooperation with the University of

Nevada–Reno, leading to a Master of Laws

in Judicial Studies degree. Forty-four state

judges have completed that program, and

another 95 are current degree candidates. ❏

Court.

In January 1994, he was appointed by

California Chief Justice Malcolm M. Lucas

to the California Judicial Council. Chief

Justice Lucas also designated Judge Warren to serve as his representative on the

California Constitution Revision Commission.

Judge Warren was selected as Trial Judge

of the Year in 1987 and 1993 by the Capital

City Lawyers Association. In 1994 he was

selected as Trial Judge of the Year by the

Sacramento County Bar Association.

Active in California judicial education

programs, Judge Warren has been chair of

the Center for Judicial Education and

Research’s (CJER) California Juvenile Law

Institute, vice chair of CJER’s continuing

judicial studies planning committee, and a

member of CJER’s new judge education

planning committee.

He has taught and lectured extensively

in the fields of criminal law and procedure,

civil law and procedure, ADR, delay reduction, trial management, juvenile law and

procedure, court management, trial court

funding and organization, and justice system planning.

He graduated from Williams College in

1963, received an M.A. in political science

from the University of Chicago in 1966. In

1969 he received a law degree from the

University of Chicago, where he also served

as projects editor of the law review. ❏

WARREN, from page 1 MEDINA, from page 1

Rampersad, biographer of Langston Hughes

and Arthur Ashe, who is now working on a

biography of Jackie Robinson; and

• a multimedia presentation on current

Russian culture by Princeton Professor Ellen

Chances of the Department of Slavic Languages and Literature.

On the final day of the seminar, Jack

Coleman, former president of Haverford

College and now a Vermont innkeeper,

commented on the worth of experiences

such as the Medina Seminar. Coleman noted

that judges lead an insular and protected

life, and need the stimulation of intellectual

confrontation in areas other than the law as

a humbling experience and to develop new

perspectives.

The Medina Seminar is sponsored by the

Federal Judicial Center; the Judiciary Leadership Development Council, a private, nonprofit corporation in Washington, D.C.; and

Princeton’s Council of the Humanities and

Council on Science and Technology.

The 1996 seminar will be held at

Princeton, June 6–12. Interested federal

judges should contact Robb Jones, Director, Judicial Education Division, Federal

Judicial Center, Thurgood Marshall Federal Judiciary Building, One Columbus

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

Interested state judges should contact the

president of the Judiciary Leadership Development Council, Senior Judge John H.

Kern III, 2510 Virginia Ave., N.W., Washington, DC 20037, phone (202) 338-5513.❏
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 10 • September 1995 State–Federal Judicial Observer (#10) a joint publication of the Federal Judicial Center and the National Center for State Courts Interjudicial Affairs Office Federal Judicial Center Thurgood Marshall Federal Judiciary Building One Columbus Circle, 

N.E.

Washington, DC 20002-8003

An early case evaluation system for the

screening and handling of pro se prisoner

cases developed by the federal district court

in Nevada in cooperation with the Nevada

Attorney General’s office has reformed the

processing of such cases by the federal

court and has substantially reduced the

workload of the U.S. Marshal’s Service

related to them.

The number of prisoner cases has been

increasing significantly in both state and

federal courts in many parts of the United

States in the past five years. The number of

such cases filed in Nevada now constitutes

a major part of that court’s civil caseload.

In 1994, 24% of all civil cases filed in the

U.S. District Court for the District of Nevada were civil rights cases filed by state

prison inmates. From 1992 to 1994, 40–

47% of all civil cases filed in the unofficial

northern division of the District of Nevada

were prisoner civil rights cases.

The early case evaluation system was

implemented in April 1994 and has been in

operation since then. The purpose of the

system is to identify those causes that appear to have merit and those that appear to

be frivolous and should be dismissed. One

of the objectives of the system is to remove

as quickly as possible frivolous actions or

frivolous counts and defendants in a complaint.

Evaluation hearings are conducted only

for prisoner, pro se, in forma pauperis civil

rights (section 1983) actions.

Nevada Attorney General Frankie Sue

Delpapa, who worked with Nevada federal

judges in setting up the system, commented

that “we have found the early case evaluation system to be very effective in eliminating cases that shouldn’t be in court, in

consolidating claims to save time and work,

and in eliminating unnecessary defendants.”

According to a memorandum prepared

for other judges by Judge Howard D.

McKibben (U.S. D. Nev.), who played a

major role in establishing the system, the

process operates as follows:

• Upon receipt of a prisoner, pro se, in

forma pauperis civil rights petition and the

assignment of a case number to the petition,

the pro se law clerk reviews it to determine

whether the plaintiff should be permitted to

proceed in forma pauperis. At the same

time, the pro se clerk reviews the complaint

to determine whether it appears to be frivolous on its face. If it appears to be completely frivolous, full in forma pauperis

status is granted, and the action is dismissed without the need for a hearing.

• For those cases not dismissed immediately as frivolous on their face, the pro se

law clerk prepares a bench memorandum

on the case. The bench memo summarizes

the counts and factual allegations and identifies which, if any, of the counts and named

defendants should be dismissed as frivolous. Two of the most common reasons for

dismissal are lack of factual support in a

count to show personal involvement of a

defendant and immunity of a defendant

from suit.

• If the entire case is not dismissed as

frivolous, the pro se law clerk secures a date

and time for a telephonic early case evaluation hearing. The cases are generally set

for 10-minute intervals. A courtesy copy of

the complaint and order are sent to the

Nevada Attorney General’s office at least a

week in advance of the scheduled hearing.

The Attorney General’s office then assigns a deputy to participate in the hearings.

The deputy contacts employees of the Nevada Department of Prisons about the allegations in each complaint and arranges to

have a representative from the department

at the hearing to answer any questions the

court may have and for possible administrative resolution of the dispute.

• The early case evaluation hearing opens

with the judge advising the plaintiff about

the reasons for the hearing. The judge then

summarizes the allegations in the complaint. The plaintiff is asked whether the

court has correctly interpreted the allegations. If not, the plaintiff is directed to

explain any misinterpretation and state any

facts supporting the allegation. The court

advises the plaintiff about any deficiences

in the complaint with respect to parties or

contents of the complaint. The court then

explains to the plaintiff that certain counts

and/or defendants should be dismissed

where appropriate. In many cases the plaintiff is willing to dismiss counts and/or defendants, particularly where at least one

count and one or more defendants remain.

• Most dismissals are without prejudice.

Only in rare cases have dismissed claims

been refiled. The court may then order the

complaint to be amended to conform to the

stipulation about removal of defendants or

counts in the complaint without the necessity of filing additional pleadings.

• While in the presence of an official

from the Nevada Department of Prisons

and aware of the fact that the official has

already had an opportunity to investigate

the complaint, some plaintiffs have been

willing to voluntarily dismiss the entire

action without prejudice to refile if the

problem is not resolved administratively.

• If the plaintiff is unwilling to dismiss

counts and/or defendants, the court reviews

the sanction provisions of Rule 11 so the

plaintiff understands what may happen if

he or she persists with frivolous claims.

• For those claims and defendants remaining, the court requests the deputy attorney general to accept service of process

for all defendants currently employed by

the Nevada Department of Prisons. This

procedure avoids problems associated with

preparing and issuing summonses (usually

multiple summonses because not all defendants are effectively served on the first

attempt).

• After counsel has accepted service of

process, the court orders counsel to file an

answer or otherwise respond to the complaint, generally within a 20-day period.

The hearing is then concluded.

Statistics from the Nevada court during

the first six months of using these new

procedures indicate that 69 of the 166 original causes of action filed remained after the

early case evaluation hearings, a 57% reduction. Of the 279 original defendants,

131 defendants remained after the hearings, a reduction of more than 50%. Almost

all of the dismissals of causes of action and

defendants were voluntary on the part of

the plaintiffs at the time of the hearing.

In addition, in most instances the U.S.

marshal did not have to effect service of

process, service being accomplished at the

hearing. As an indication of the success of

the program for the Marshal’s Service, there

were 700 individual processes served either by mail or in person from April 1, 1993,

through September 30, 1993. For the period April 1, 1994, through September 30,

1994, there were 270 individual services.

Judge McKibben identified some of the

advantages he has perceived in the new

system:

• The focus is on the real complaints of

the plaintiff, thus avoiding the expenditure

of time, money, and effort litigating frivolous claims against unnecessary parties.

• It encourages early dispute resolution

by the parties wherever possible. It saves

the time and cost of having the U.S. marshal

issue and serve process on prison officials.

• It appears to reduce the period between

the service of process and the trial by at

least four to six months.

• It provides the inmate plaintiff with a

better understanding of the legal standards

required for proceeding with claims.

• It provides the plaintiff with an opportunity to amend the complaint to plead facts

that would satisfy those standards.

• It permits the court to advise the plaintiff of potential sanctions that may be imposed for pursuing frivolous claims.

The volume of prisoner cases is an issue

that has been discussed extensively at meetings of the Federal–State Jurisdiction Committee of the U.S. Judicial Conference.

Ways to handle prisoner complaints expeditiously before they become lawsuits, as

well as after filing, are under study by the

National Association of Attorneys General

in Washington.

The Nevada system and other methods

of handling prisoner pro se cases are currently being evaluated by the Research Division of the Federal Judicial Center.

The increased attention to this type of

litigation stems from the general view that

a significant number of prisoner complaints

in many states are frivolous. ❏

Evaluation System Reforms Processing of Nevada Pro Se Prisoner Cases

Visits to English and Scottish courts and

conversations with English and Scottish

judges were mixed with luncheons and

dinners at the Inner and Middle Temple

Inns of Court in England and tours of the

libraries of the Faculty of Advocates and

Writers of the Signet in Scotland during the

third annual John Marshall Harlan Seminar

for State and Federal Judges in July.

Nineteen state and federal judges participated in the seminar, held in London and

Edinburgh. All costs were paid by the participants.

The academic sessions of the London

portion of the seminar, covering six days,

were held at the London offices of the Law

Society of England and Wales. Lectures for

the three days of the Scottish part of the

seminar were held at the Faculty of Law of

the University of Edinburgh.

The theme of the seminar, “contemporary challenges in Anglo–American law,”

was incorporated into the London lectures,

which covered English legal history, an

introduction to the English legal system,

comparisons of legal practice in the English and American systems, appellate practice and procedure in Britain, operation of

magistrate’s courts, and the European Court

of Human Rights.

Edinburgh sessions covered introduction to Scot’s law, Scot’s criminal law in

comparative perspective, operation of the

Scottish commercial court, and recent deEnglish Inns of Court, Scottish Law

Libraries Highlight Harlan Seminar

velopments in public international law.

The participating judges also visited the

Royal Courts of Justice, the Central Criminal Courts (Old Bailey), the Lord

Chancellor’s office, the Law Committee of

the House of Lords, the Court of Session of

Scotland, and the Sheriffs Court of Scotland.

A dinner in the medieval dining hall of

the Middle Temple Inn of Court concluded

the London segment of the seminar, and an

evening in the great hall of Borthwick Castle

south of Edinburgh marked the end of the

seminar.

The Sheriff’s of Edinburgh treated the

judges to a special reception and tour of the

new courthouse for the Sheriffs Court.

The seminar is held every year in July. It

is open to both state and federal judges and

is limited to 20 judges. Spouses may attend

most of the scheduled events.

The seminar is sponsored by the Judiciary Leadership Development Council, a

nonprofit corporation in Washington, D.C.,

the University of Edinburgh, the Law Society of England and Wales, and the General

Council of the Bar of England and Wales.

Judges interested in attending the seminar in the summer of 1996, to be held the

first two weeks in July, should contact

Senior Judge John Kern, president of the

Leadership Council, at 2510 Virginia Ave.,

N.W., Washington, DC 20037, phone (202)

338-5513. ❏