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 8 • December 1994

Over 80 state and federal

judges and court administrators gathered in historic

Williamsburg, Va., on November 14 for a two-day

convention on state–federal

relationships in the Middle

Atlantic states.

The conference focused

on four central themes: administrative and litigation

coordination between state

and federal courts (including the role of state–federal

judicial councils); criminal

case processing in state and

federal courts; funding processes and legislative initiatives affecting the judiciaries of the two systems; and

the future of judicial federalism.

Discussions of coordination of administration and litigation in the

two court systems centered on three areas:

mass tort cases, bankruptcy cases, and state–

federal judicial councils. Judge Johanna L.

Fitzpatrick (Va. Ct. App.) moderated a panel

discussion that included an analysis of approaches to the resolution of complex mass

tort cases by Judge Larry V. Starcher (W.

Va. 17th Cir.) and Judge Matthew J. Perry,

Jr. (U.S. D. S.C.). Richmond litigator

Deborah M. Russell reviewed in detail class

actions and pretrial consolidation approaches to such cases.

U.S. Supreme Court Justice Sandra Day

O’Connor gave the keynote address to open

the conference. She said that “part of the

Roles of State and Federal Courts

Examined at Mass Tort Conference

by James G. Apple

Critical questions about the role in society of both state and federal courts were

raised at the first National Mass Tort Conference, which was held in Cincinnati from

November 10–13.

Participants at the conference included

130 state judges and 46 federal judges, as

well as court administrators, lawyers, and

legal scholars.

The conference opened with a videotaped address by Chief Justice of the United

States William H. Rehnquist, who reminded

the attendees of Alexander Hamilton’s description of the state and federal systems as

“one whole.”

Judge Robert M. Parker (U.S. 5th Cir.)

told the audience that “a fundamental issue

raised by modern complex mass tort cases

is: What role do we want our courts to play

in our society?”

He said that “the relevance of courts in

modern times is in direct relationship to

how well we meet the expectations of our

citizens.”

Are we “going to remain with an 1825

model for courts?” he asked.

Zöe Baird, senior vice-president and

general counsel of Aetna Insurance Company, sounded a similar theme in her remarks in the opening panel discussion of

the conference. Unless courts find ways to

deal efficiently and justly with such modern court phenomena as mass tort cases, she

said, “citizens will get disillusioned with

the judicial system and go elsewhere.”

Speakers reviewed and evaluated the

various techniques and procedures that

courts around the country have used to

expedite mass tort cases—what one speaker

termed “creative judicial management”—

including:

• use of special masters and discovery

masters to expedite discovery and pretrial

proceedings;

• systematic and frequent communication between state and federal judges in the

handling of specific cases pending in both

systems;

• judicial education on scientific issues;

• aggregation of cases for discovery and

trial;

• joint use of court facilities by state and

federal judges;

• use of independent experts for the

evaluation of scientific evidence;

• early resolution of scientific issues;

• use of computer technology such as CD

ROM to keep track of documentary evidence and all counsel in specific cases and

to keep track of the existence and status of

cases in different state and federal courts;

• establishment and use of central document depositories;

• use of state–federal judicial councils

for communication between state and federal judges on specific issues and for education of state and federal judges on mass tort

case issues and procedures;

• making jury trials more comprehensible to judges and juries by such innovaAdministrative, Litigation Coordination

Emphasized at Williamsburg S–F Meeting

Bankruptcy cases create a major area of

friction between state and federal courts—

especially bankruptcy stays of state court

lawsuits. Much of the friction arises because state trial judges lack understanding

of the nature, extent, and effects of “automatic stays” under the U.S. Bankruptcy

Code. The American Bankruptcy Institute

is a private, nonprofit organization in Washington, D.C., devoted to education and research on bankruptcy issues. It has identified eleven questions commonly asked by

state judges about bankruptcy stays and has

developed answers to these questions.

The questions and answers as supplemented or developed by the Federal Judicial Center are presented below. Elaboration to some of the answers has been provided by Bankruptcy Judge Sidney B.

Brooks (U.S. D. Colo.). More detailed information about bankruptcy issues can be

found in the American Bankruptcy

Institute’s recent publication, Bankruptcy

Issues for State Trial Court Judges 1993,

developed through a grant from the State

Justice Institute. Copies of this publication

($10 each) can be obtained from the American Bankruptcy Institute, 510 C Street N.E.,

Washington, DC 20002, phone: (202) 543-

1234. (Note: Some of the information in the

publication may have been affected by recent changes in the bankruptcy laws.)

1. Question: What sort of actions, motions,

and proceedings in state court are not stayed

by a bankruptcy filing?

Answer: Certain actions are excluded by

statute from the operation of the automatic

stay. The following are common ones: most

criminal actions against the debtor; alimony, maintenance, or support collection

actions from property other than property

after an uncomplicated chapter 7 case is

filed or at the successful conclusion of a

chapter 13 plan.

Note: If a defendant files for bankruptcy

shortly before the commencement of a state

court action, quick relief from the stay

might be obtained by the other litigants if

they immediately apply to the bankruptcy

court and justify prompt modification of

the stay. Bankruptcy judges are not likely to

condone unfair litigation tactics, and they

may wish to abstain in favor of a case being

better tried in a state court.

3. Question: In a lawsuit before a state

judge, three defendants are alleged to be

joint tortfeasors. The state law provides for

percentage apportionment of liability. One

of the three defendants files bankruptcy.

(a) Can the case proceed?

(b) Should it?

Answer: (a) Maybe. In a state that apportions liability by percentage, the case against

three joint tortfeasors could proceed against

two of them after the third files bankruptcy.

If the state law requires that joint tortfeasors

be tried together, then the case could not

proceed against any of the tortfeasors unless the bankruptcy court grants relief from

the stay.

(b) No. The case should not proceed

until the plaintiff or a codefendant obtains

relief from the automatic stay.

4. Question: (a) A defendant in a tort suit

files bankruptcy. All parties before the state

judge acknowledge that the defendant is

covered by insurance and that the liability

of the defendant will be limited by the

extent of the coverage. Does the state judge

need a bankruptcy court order to proceed

with the tort action while the bankruptcy

case is pending?

(b) Once the discharge injunction has

been entered and the bankruptcy case closed,

may the plaintiff in the tort action proceed

against the debtor in state court as a nominal defendant if such action is necessary to

prove liability as a prerequisite to recovery

from the liability insurer?

Answer: (a) Yes. Even in tort cases where

a defendant is insured and liability is limited to the extent of the coverage, a party

should seek an order granting relief from

the automatic stay or remove any doubt

about the effects of proceeding with the

action. (See also answer to Question 3.)

(b) Yes. The discharge of the debtor

extinguishes personal liability but does not

release third persons, including insurance

companies, from liability. No modification

of the discharge injunction entered by the

bankruptcy court is necessary, if such action is necessary to prove liability as a

prerequisite to recovery from the liability

insurer.

5. Question: (a) Can the bankruptcy court

reexamine or undo awards of child support,

See MASS TORT, page 3

Inside . . .

Obiter Dictum: Sabbaticals for

Judges 2

New FJC Director 2

Court Technology Conference 3

Courthouse Wins National Trust

Award 4

Bankruptcy Education Seminar 4

Warren E. Burger Award Winner 4

See BANKRUPTCY, page 3

What State Judges Need to Know About Bankruptcy Cases

of the bankruptcy estate (e.g., collections

from property acquired after the debtor

files a chapter 7 petition); paternity actions;

and police or regulatory enforcement actions (e.g., consumer protection and environmental actions). The statutory exceptions from application of the stay appear at

11 U.S.C. § 362(b).

2. Question: Could a state court judge

action violate a bankruptcy stay?

Answer: Yes. While it is more likely that a

party or counsel for a party would be acting

contrary to the automatic stay, a state court

judge could violate it in a myriad of ways,

ranging from conducting a pretrial conference in a mortgage foreclosure action to a

trial of a contract dispute. Essentially any

act outside the bankruptcy court that moves

a matter forward on a claim against a debtor

or property of the estate during the pendency of a bankruptcy violates the stay. As

a practical matter, however, only acts in

willful violation of the stay would result in

sanctions, from which state court judges

would probably be immune.

There are several areas where the automatic stay does not apply, and thus a state

court judge may act. See answer to Question #1.

Determining what is not covered by the

stay can be tricky. When in doubt, the state

judge should refrain from going forward

and advise the parties to obtain relief from

the stay in the bankruptcy court. The process to do so is relatively swift and selfexecuting, if not opposed. It is usually treated

on a relatively expedited basis.

The stay otherwise expires automatically on the closing or the dismissal of the

case, or when a discharge is entered. Typically a discharge is entered about 100 days

At the state–federal judicial relationships conference in Williamsburg in November, Judge Matthew

J. Perry, Jr. (U.S. D. S.C.) discussed nationwide

coordination of L-Tryptophan litigation.

beauty of our federalism is the diversity of

viewpoint it brings to bear on legal problems. Under our system, the 50 state supreme courts, 13 United States courts of

appeals, and countless trial and intermediate appellate courts may bring diverse experiences to bear on questions that, because

of the Supremacy Clause [of the U.S. Constitution], they must answer in common.”

She reminded the audience that “maintenance of the federal–state balance is the

responsibility of both the federal and state

courts . . . it is not unlike a successful

marriage. Reciprocal awareness of their

See WILLIAMSBURG, page 2
2 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 8 • December 1994

OBITER DICTUM

Sabbaticals for State and Federal Judges:

Necessary in the Pursuit of Judicial Excellence

sabbatical leave for faculty members, and

many major companies have some form of

sabbatical.

IBM, for example, provides many of its

employees with a one-year sabbatical, at

full pay, to share their

knowledge and experience in meaningful ways,

such as teaching handicapped students. Xerox

grants sabbaticals for such

“socially responsible” activities as helping refugees or abused children.

American Express began

a sabbatical policy in 1991

that allows six months

leave time for employees,

but requires the time off

to be used for community

development or for educating others. One

American Express employee used her sixmonth leave to work in a hospice.

Other companies have gone further.

McDonald’s Corp., for example, gives eight

weeks of unrestricted leave with pay every

ten years for all regular employees. Apple

Computer Corp. urges all full-time employees to take six weeks off with pay every

five years. And Time, Inc., has provided its

employees with one year off with full pay

after 15 years of work, with no restrictions.

One company president, upon returning

from a six-month sabbatical as a visiting

fellow at the London Graduate School of

Business, told of how he had gotten “not

[just] a recharged battery, but a new motor.”

He then proceeded to study sabbatical leave

policies at each of the Fortune 500 industrial companies and concluded, “When you

grant free time to an educated man with an

inquisitive mind, he is likely to use it reasonably well and bring benefits to himself,

his company, and his social environment.”

Some law firms, large and small, believing that to be only a lawyer is to be only half

a lawyer, have offered similar opportunities. When Senior Judge Louis Oberdorfer

(U.S. D. D.C.) was a lawyer with Wilmer,

Cutler & Pickering, for example, he took a

sabbatical leave to work for the Neighborhood Legal Services Program.

Another Wilmer, Cutler lawyer, who

spent six months backpacking through

Nepal, India, and other Asian countries,

described his odyssey as a “humbling, provoking, and in some ways disturbing experience.” He added, “It raised important questions about what I and my fellow lawyers

want to do with our lives and talents.”

Sabbatical leaves have permitted lawyers to get out from under their encrusted

habits and practices, to reorder their priorities, to have an opportunity for self-development and self-discovery. Whether they

read good books, learn about art or music,

give time to retarded children, discover

other cultures, or spend more time with

their families, those lawyers who have taken

sabbaticals have found themselves in a position to make more informed social, political, and professional judgments.

In light of these advantages, why are

sabbatical leaves not provided for judges?

Shouldn’t judges have perspective and insight? Shouldn’t judges have the time to

read something other than law books? Isn’t

it desirable for them to be able to confront

our vast society firsthand, not just in the

courtroom? The answer should be a resounding “yes,” for the good of society as

well as for the judges.

What stands in the way? Only Alaska,

California, and Oregon now allow judges

to take leaves of absence—but without pay.

The chief justice of Puerto Rico had been

considering the use of paid sabbatical leaves,

but the proposal was never implemented.

by Professor Ira P. Robbins

Washington College of Law

The American University

State and federal judges have a hazardous occupation. With large

workloads and small staffs,

they live a life of intensity,

the result of the never-ceasing round of difficult decisions that can affect the freedom or the lives of human

beings or dispose of millions of dollars.

Judges also live a life of

contradiction. At once they

must be action oriented, person oriented, deductive, inductive, authoritative, convincing, just, and compassionate. Add to this the constant struggle

over quality and thoroughness, the concern

about living up to individual and institutional expectations, the lonely transition

from practice or teaching, the social isolation, the financial pressure, the lack of objective feedback, and the absence of control

over caseload or clientele, and the toll on

the quality of judges’ lives becomes obvious.

A judge recently asked psychiatrist

Walter Menninger, “What can I do on the

bench that will reduce the urge to scream?”

One good answer is: “Take a sabbatical.”

Virtually every article calling for judicial sabbaticals mentions stress or “burnout.” The late Judge Wade McCree, Jr., who

served on the federal trial and appellate

bench and as U.S. Solicitor General, termed

it the “judicial blahs.” Oregon Supreme

Court Justice Ralph Holman referred to it

as life in a “decisional squirrel cage.”

Judge Tim Murphy, in his 1985 letter of

resignation from the Superior Court of the

District of Columbia, wrote:

Time away from the constant stress

of dealing with human conflict and

misery, to reflect on what justice is

all about, would surely make for an

even stronger and better court. . . .

[I]t is presently a matter of “quit or

die” to get a respite. I am opting for

the former.

Judge Peter Wolf, of the same court,

wrote of a “memory overload problem”:

[Being a judge] is constant, neverending, tiring, limiting (of one’s

outlook and activities) and pervasive. Decisions, however close, must

be made, should be made promptly,

and the need for a decision will

almost never go away. Time for thorough research is an infrequent

luxury. . . . [A judge] can never

relax.

On the federal side, former U.S. Chief

Judge Aubrey Robinson, Jr. (Dist. D.C.),

when asked what would be the most important single change he would make in the

way the federal judiciary operates, responded: “The establishment of a sabbatical leave for every judge.”

Going beyond just the need to reduce

stress on the bench, Judge Robinson argued

for judges to have an opportunity “to get

some perspective, to explore some areas of

the law in depth, to think about what’s

coming down the line, to determine whether

we want to spend the rest of our life on the

bench.” He recommended a leave of from 6

to 12 months, with eligibility after 10 years

on the bench. The sabbatical would be fully

paid and would have no restrictions.

From their Hebraic origins to their current use in academia, government, business, and industry, sabbatical leaves have

helped people relax, reflect, rethink, and

rejuvenate. These opportunities have benefited both individuals and their institutions. Over 90% of all universities provide

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.

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

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, Virginia; 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.

J U D I C I A

F

L

E D E R A L

C E N T E R

State–Federal Judicial Observer

a joint publication of the

Federal Judicial Center and the National Center for State Courts

See OBITER DICTUM, page 4

respective roles helps each partner carry

out their joint responsibility. There must be

a healthy dialogue on open federal questions and respect for the interests and needs

of each partner.”

Judge William W Schwarzer, director of

the Federal Judicial Center, outlined the

advantages of state–federal judicial councils. He told the participants that “judges

talking to each other is the most effective

form of education.”

“Communication is a great untapped

resource” for judges from both systems, he

stated. “And state–federal judicial councils

provide the means for effective communication between state and federal judges.”

Plato Cacheris, a criminal defense lawyer of Washington, D.C., and Alexandria,

Va., moderated a panel of state and federal

judges and prosecutors that focused on the

effects of concurrent jurisdiction on the

prosecution of criminal cases in state and

federal courts. The panel used a hypothetical case and discussed it in the context of

the federal crime bill enacted earlier this

year.

Former congressman Robert W.

Kastenmeier of Wisconsin, who served on

the Committee on the Judiciary of the U.S.

House of Representatives and chaired the

House Judiciary Subcommittee on Administration of Justice and Intellectual Property, outlined congressional action from

1965 to 1994 that affected the state judiciary and involved either directly or indirectly state–federal cooperation.

Kastenmeier told the participants that “Congress needs knowledge and input” through

Zobel Named FJC Director;

Will Assume Duties in April

Judge Rya W. Zobel (U.S. D. Mass.) has

been selected by the Board of the Federal

Judicial Center as the Center’s new director, to succeed Senior Judge William W

Schwarzer (U.S. N.D. Cal.), who reaches

the statutory retirement age as FJC director

next April. Judge Schwarzer has served as

the Center’s director since 1990.

Judge Zobel was appointed U.S. district

judge in 1979. She graduated with honors

from Radcliffe College in 1953, and then

from the Harvard Law School. She entered

private law practice after serving as a law

clerk to Judge George C. Sweeney (D.

Mass.), becoming a partner in the firm

Goodwin, Proctor & Hoar.

Earlier this year she completed a fouryear term as chair of the Judicial

Conference’s Committee on Automation

and Technology. She also had been a member of the Conference’s Committee on the

Operation of the Jury System and its Committee on Judicial Improvements. She

chaired the American Bar Association’s

National Conference of Federal Trial Judges

in 1991–92.

She will be the seventh director of the

Federal Judicial Center, which was established in 1967. ❏

WILLIAMSBURG, from page 1 hearings and other means “about the impact of federal legislation on state courts.”

The conference concluded with comments by two legal academicians who specialize in the study of judicial federalism,

Prof. Thomas E. Baker, of Texas Tech University School of Law, and Prof. Daniel J.

Meador, of the University of Virginia School

of Law.

Prof. Baker discussed judicial federalism in the 21st century, covering such subjects as privatization of litigation procedures, user fees as replacements for filing

fees, pro bono judges, computerized courtrooms, paperless clerks’ offices, and collaboration and cooperation between state

and federal judges.

For resolving problems arising from the

federalization of crime and for increasing

cooperation between state and federal

courts, Prof. Meador suggested the following ideas: the creation of state–federal prosecutors councils; development of guidelines for state and federal prosecutors for

cases with overlapping state–federal jurisdiction; interbranch seminars at the state

and federal level; and state–federal programs at U.S. circuit judicial conferences.

Judge F. Gordon Battle (N.C. Super.

Ct.), who attended the conference, said that

“the presentations were very helpful in demonstrating the need for more communication and cooperation between state and

federal judges. I think we will see that

happen in North Carolina.”

A summary of the conference proceedings will be prepared and distributed by

William K. Slate, advisor–reporter for the

conference. The conference was funded by

a grant from the State Justice Institute. ❏
State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 8 • December 1994 • 3

the court is presented with the issue of

dischargeability of that judgment.

(b) Yes. Default judgments or issues not

fully litigated in state court are subject to

collateral attack in bankruptcy court, but

collateral estoppel applies in bankruptcy

proceedings to matters that have been fully

litigated in state courts.

8. Question: If a debtor files a chapter 13

bankruptcy, can he or she discharge judgments for embezzlement, fraud, intentional

torts, and driving under the influence of

alcohol and drugs?

Answer: Money judgments based on driving while intoxicated are not dischargeable

in chapter 13, but money judgments for

embezzlement, fraud, and intentional torts

are. In chapter 13 proceedings, debtors usually agree to pay creditors from future income over an extended period of time pursuant to a plan approved by the bankruptcy

court. Such a debtor is not entitled to

discharge until the successful completion

of payments under the plan.

9. Question: Are there any circumstances

where restitution or fines in a state criminal

case are dischargeable?

Answer: Fines and restitution in state criminal cases are nondischargeable in bankruptcy cases filed on or after October 22,

1994. Both fines and restitution in state

criminal actions are nondischargeable in

chapter 7 cases filed before October 22,

1994. Restitution is nondischargeable, but

fines are dischargeable in chapter 13 cases

filed before that date.

10. Question: The defendant in a collection suit in state court affirmatively alleges

discharge in bankruptcy. Can the state court

resolve this issue, or is the dischargeability

issue only within the jurisdiction of the

bankruptcy court?

Answer: Only bankruptcy courts can determine whether to grant or deny a discharge in bankruptcy, but state court judges

can ascertain whether discharge has in fact

been granted or denied through evidentiary

methods of proof.

11. Question: A lawyer for a party calls and

advises the state judge that a client has filed

bankruptcy. How can this be verified?

Answer: The state judge or his or her clerk

may call the bankruptcy court clerk’s office, or seek access to the docket electronically if such technology is available. Phone

numbers for clerks’ offices appear in the

ABI publication referenced above and in

the “Government Listings” of most telephone directories under United States

Government, Courts, District Court for

(Name of Federal District), Bankruptcy

Court, Clerk’s Office. An alternative is for

the state judge to require the debtor’s lawyer to file with the state court a date-stamped

copy of the debtor’s filed bankruptcy petition, and/or the Official Bankruptcy Form

9, “Notice of Filing Under the Bankruptcy

Code, Meeting of Creditors and Fixing of

Dates,” after such form has been issued by

the bankruptcy court. ❏

The Fourth National

Court Technology Conference (CTC4) in Nashville,

Tenn., in mid-October covered technology developments and innovations for

use in America’s state and

federal court systems—from

the court clerk’s office to the

courtroom, from the filing

of a complaint or the conducting of an arraignment to

trial and final judgment,

from pretrial discovery for

lawyers to opinion writing

by judges.

The conference, sponsored by the National Center for State Courts and

funded by a grant from the

State Justice Institute, attracted over 2,400

attendees—judges, court administrators,

technology experts, consultants, and legal

scholars from every part of the United

States—to the 39 educational sessions and

96 exhibits and demonstrations conducted

over a four-day period.

Several of the educational sessions held

special appeal for judges. One session focused on the Midtown Manhattan Community Court as a “model in technology” and

demonstrated “how judges and other staff

used the Electronic Judicial Desktop—a

system that displays comprehensive criminal information pertaining to arrest, criminal record, charge, complaint, and plea

agreement status.”

 Another session featured a presentation

of software that “enables courts to organize, personalize, maneuver, consume, and

share diverse types of information, customized as ‘The Judges Workdesk.’”

Artificial intelligence (AI) for judges

was described in one session—“how judges

can use AI-based systems in the decisionmaking process.” Two computer software

programs—Judicial Expert Decision Aid

(JEDA), developed for repetition-type

cases, such as black lung and other occupational disease litigation, and Law Clerk,

created to assist in the preparation of opinions in cases involving fraud relating to

food stamp benefits—were demonstrated.

Another session, titled “Technology at

the Bench,” outlined “technology to expedite dockets.” Judge Michael E. Donohue

(Wash. Super. Ct.) of Spokane, Wash., discussed electronic legal research, indexed

note taking and retrieval systems, computer tables incorporating sentencing and

child support guidelines, and electronic mail

and facsimile transmission for quick communication by judges.

Several focal issues relating to court

technology emerged from the conference

sessions, exhibitions, and demonstrations:

• the opportunities and advantages of

video conferencing to reduce or eliminate

the need for physical in the preparation and

Court Technology Conference Covers

Variety of Technical Innovations

Participants in the Court Technology Conference in

Nashville examine a court software support system that

was part of the 96 exhibits and demonstrations held

during the four-day convention in mid-October. The

conference was funded by the State Justice Institute.

Ann Tyrell Cochran, standing to right, claims administrator for the Silicon Breast

Implant Settlement Fund, leads one of the small-group discussions at the mass tort

conference in Cincinnati in November. Also present were Judge Edward Rafeedie

(U.S. S.D. Cal.), left, and Justice Joan B. Lobis (N.Y. Sup. Ct.), seated to right.

conduct of trials;

• the advantages of real-time court reporting (stenotype transcripts immediately

displayed on TV monitors for judge and

jury);

• the varieties of personal, computerbased, case-management systems available

for court clerks’ offices;

• the advances in court technology to

assist judges and juries in the understanding of evidence;

• the scientific and technical issues arising in litigation created by advanced technology; and

• the usefulness of kiosk technology to

assist citizen consumers of legal services in

understanding and using court systems.

Kiosk technology was demonstrated

using two existing systems: Quickcourt,

from Arizona; and Autocourt, from California. The Arizona system, a service system

rather than an information system, was

installed in 1993 in three sites in Phoenix

and Tucson and has served approximately

24,000 “customers.”

 One new feature of the technology conference was the “PC Laboratory,” which

permitted participants personally to try various court software systems.

The first three technology conferences,

all sponsored by the National Center for

State Courts (with funding from the State

Justice Institute), were held in 1984, 1988,

and 1992. The NCSC is planning a fifth

technology conference for 1997 in Detroit.

Papers delivered at the conference were

placed on a computer diskette that was

mailed to attendees before the conference.

The diskette also included a list of exhibitors and exhibitor contact information.

Additional copies of the diskette can be

ordered for $10 each (includes handling

and mailing) by calling (804) 259-1850. A

videotape of three keynote addresses given

at the conference (by medical–legal consultant Cyril H. Wecht, law professor George

B. Trubow, and cultural anthropologist Jennifer James) can be ordered for $30 by

calling the same number. ❏

MASS TORT, from page 1

tions as jury note taking and use of modern

computer and communications technology;

and

• recognition in appellate courts of differences between mass tort cases and “garden variety” cases to allow for more flexibility in dealing with them.

Participants also visited the Potter

Stewart U.S. Courthouse in Cincinnati for

technology demonstrations in one of the

courtrooms.

Judge Carl B. Rubin (U.S. S.D. Ohio)

and members of his staff gave a review of

his “courtroom of the future” and, using

three video monitors in front of a jury box,

demonstrated how such monitors are used

in the presentation of evidence.

Complex Litigation Automated Docketing (CLAD), a paperless docketing system

created for the Delaware court system and

its high volume of corporate cases, was the

subject of a discussion by Judge Susan C.

Del Pesco (Del. Super. Ct.), who originated

the concept for the computer program.

Chief Judge Sam C. Pointer, Jr. (U.S.

N.D. Ala.) demonstrated the computer software system he developed for the coordination of breast implant cases pending in state

and federal courts nationwide.

The national conference of judges and

court officials was the first to deal with the

issue of mass tort cases in the courts.

Proceedings of the conference will be

reported in a forthcoming issue of the Texas

Law Review.

The conference was sponsored by the

State Justice Institute, the Federal Judicial

Center, the Judicial Conference of the United

States, the Mass Tort Litigation Committee

of the Conference of Chief Justices, the

National Center for State Courts, and the

National Judicial College. ❏

BANKRUPTCY, from page 1

alimony, or attorney fees made in a divorce

action?

(b) If so, to what extent?

Answer: (a) Yes. Since support and alimony awards are generally nondischargeable, questions often arise about the characterizations or labels of those awards (as

well as attorney fee awards) and their relation to property settlement obligations,

which are generally dischargeable, except

as provided for in 11 U.S.C. § 523(a)(15).

(b) Bankruptcy courts will not be bound

by the characterizations or labels given to

the debts in a state decree or settlement.

Accordingly, bankruptcy courts may undo

such state court awards if their characterizations are inconsistent with the parties’

true intentions and dischargeability rights.

6. Question: (a) Once a party to a lawsuit

before a state judge has filed bankruptcy,

can one or more of the parties remove the

entire lawsuit or part of it to the bankruptcy

court for determination?

(b) Can the bankruptcy court remand the

action back to the state judge for determination?

Answer: (a) Yes. All or part of the state

court lawsuit can be removed.

(b) Yes. The bankruptcy judge will likely

remand state lawsuits that are traditionally

determined in state court.

7. Question: (a) What state court judgments are nondischargeable under the different bankruptcy chapters?

(b) Can such nondischargeable judgments be collaterally attacked in the bankruptcy court?

Answer: (a) Examples of final state court

judgments that may be nondischargeable in

a subsequent chapter 7 case of an individual

debtor include the following: money judgments based on fraud, embezzlement, larceny, willful or malicious injury to the

person or property of another; and money

judgments for death or personal injury arising for intoxicated driving incidents. The

reorganization chapters (11, 12, and 13)

generally provide broader discharge opportunities than are available to chapter 7 debtors.

A creditor who desires to have his or her

claim or judgment against a debtor excepted from the debtor’s discharge should

initiate an adversary proceeding in bankruptcy court to have the claim adjudicated.

Certain adversary proceedings must be

brought in bankruptcy court within a specified time. 11 U.S.C. § 523(c)(1). The state

court has concurrent jurisdiction to determine the discharge ability of certain debts.

A creditor’s failure to initiate an adversary

proceeding, particularly where some type

of wrongdoing is alleged (fraud, willful and

malicious injury, etc.), is likely to result in

a discharge of that judgment.

Note: A state court judgment that is

based on specific and appropriate findings

of fact and conclusions of law is more likely

to be adopted by, or otherwise served to

estop collaterally, the bankruptcy court when
4 • State–Federal Judicial Observer • a joint publication of the Federal Judicial Center and the National Center for State Courts • Number 8 • December 1994 State–Federal Judicial Observer (#8) 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

The restoration project that transformed

historic Union Station in Tacoma, Wash.,

into the home for the U.S. District Court for

the Western District of Washington received

a 1994 Honor Award from the National

Trust for Historic Preservation. The award

was presented at the Trust’s annual fall

conference in Boston in October.

The project was cited for the “unique

and creative reuse of [a] historic railroad

depot by putting courts into the building”

and “high quality rehabilitation.” It was

one of 17 awards presented by Richard

Moe, president of the National Trust.

Peter H. Brink, vice president for programs, services, and information at the National Trust, said he had visited the new

court building and saw it as a model for

state and federal courts throughout the country.

“I hope the Honor Award will inspire

state and federal courts in every state not

only to preserve historic courthouses but to

consider other historic buildings in the community for adaptive reuse for courthouse

replacement or expansion projects,” Brink

said.

Chief Justice Randall T. Shepard (Ind.

Sup. Ct.), a trustee of the National Trust,

said that “the Tacoma project suggests that

the elegance usually associated with courthouses can be found in other types of structures, such as train stations, that make them

appropriate for adaptation as court facilities.”

The Honor Award is the first given to a

courthouse project since 1976, when the

restoration of the Old Federal Court Building in St. Paul, Minn., was recognized. In

1992, the restoration in Philadelphia of the

Wannamaker Department Store, which includes a center for complex litigation for

OBITER DICTUM, from page 2

Any concrete plan for paid leave must

address such difficult questions as eligibility, frequency, duration, compensation, benefits, seniority, procedures, restrictions, and

conditions. Questions of cost and case coverage will be paramount.

Yet the direct cost—the payment of the

salary of an individual who may not be

directly contributing to the judiciary during

the sabbatical—is misleading, for it must

be balanced against the direct and indirect

benefits and savings. These include:

• improving efficiency, productivity, and

morale;

• enhancing judges’ creativity and reflective powers;

• providing the opportunity for educational development and professional and

personal growth;

• attracting more highly qualified individuals to the bench;

• decreasing attrition and its attendant

costs;

• improving judges’ contact with the

communities whose interests they serve;

and

• reducing stress.

As for caseload coverage, if judicial

sabbaticals prove to be productive, as I

believe they will, creative case management will be essential. This may include,

for example, the use of temporary judges,

visiting judges, and senior judges (who in

the federal system already contribute the

equivalent of the work of about 70 full-time

judges each year).

Like lawyers and teachers, judges have

enormous influence in our society. For our

collective good as well as their individual

benefit, judges need the precious gifts of

time and perspective to sustain their pursuit

of judicial excellence. ❏

The National Center for State Courts’

(NCSC) board of directors has chosen Keith

O. Boyum, the John Brown Mason Professor of political science at California State

University, Fullerton, to receive the 1994

Warren E. Burger Award. The award is

presented annually by NCSC’s Institute for

Court Management (ICM) to honor outstanding achievement in the field of court

administration.

Boyum was editor-in-chief of ICM’s

Justice System Journal from 1989 to 1994.

The Justice System Journal is a refereed

journal focusing on judicial administration

and processes. According to Ingo Keilitz,

vice president in charge of ICM, “Boyum

successfully and admirably steered [the

Justice System Journal] through an everchanging landscape of justice system scholarship and praxis. In doing so, he helped

define and shape that landscape.”

The NCSC is seeking nominations for

the 1995 Warren E. Burger Award. The

recipient will be chosen by NCSC’s board

of directors at its April 1995 meeting.

Nominees should have made significant

contributions to court management in one

or more of the following areas: management and administration; education and

training; and research and consulting.

 Nominations and supporting information must be received by January 15, 1995.

Please send nominations to the Warren E.

Burger Award Committee, Institute for

Court Management, P.O. Box 8798,

Williamsburg, VA 23187-8798, phone:

(804) 259-1815; fax: (804) 220-0449. ❏

Court Building Wins National Trust Honor Award;

Project Seen as Model for Other State, Federal Courts

Faculty for the seminar include U.S. bankruptcy judges James J. Barta (E.D. Mo.),

Charles N. Clevert (E.D. Wis.), Lee M.

Jackwig (S.D. Iowa), Timothy J. Mahoney

(D. Neb.), George C. Paine II (M.D. Tenn.),

Barry S. Schermer (E.D. Mo.), and Mary D.

Scott (E.D. and W.D. Ark.).

ABI has conducted education programs

to acquaint state judges with bankruptcy

issues in 27 states since 1992. It received a

$25,000 grant from the National Conference of Bankruptcy Judges Endowment

Fund for Education to conduct the program.

State and federal judges interested in

future bankruptcy education programs

should contact the American Bankruptcy

Institute, 510 C Street, N.E., Washington,

DC 20002, phone: (202) 543-1234. ❏

The American Bankruptcy Institute

(ABI) will conduct a two-day bankruptcy

education seminar for state judges on January 13–14 in St. Louis.

Seventy judges from Missouri, Iowa,

Minnesota, Nebraska, Wisconsin, North

Dakota, and South Dakota will attend sessions at the John M. Olin School of Business at Washington University.

The seminar will familiarize participants

with general bankruptcy laws and procedures and assist them in understanding the

effects of bankruptcy stays and other bankruptcy procedures on state court proceedings.

One session will feature methods of replicating the bankruptcy seminar in individual states.

Guest speaker for the conference will be

Judge David R. Hansen (U.S. 8th Cir.).

the Philadelphia court system, won an Honor

Award. The Honor Awards, begun in 1971,

“recognize individuals, corporations, and

organizations that demonstrate exceptional

achievement in the preservation, rehabilitation, restoration, and interpretation of

America’s architectural and cultural heritage.”

Judge Robert J. Bryan (U.S. W.D. Wash.),

a tenant of the building, wrote in support of

the nomination of the project for the award

that “not only has the restoration of Union

Station been successful in terms of being

faithful to historic features, but it is also

successful in its transformation into a modern United States courthouse. . . . The

architectural design is a marvelous combination of historic preservation and modern

usage.”

The restored building contains eight

courtrooms. The courtrooms are located in

the former dining and “ladies retiring

rooms.” Judges’ chambers are placed adjacent to the former baggage and “men’s

smoking rooms.” Court support staff offices are quartered in the lower working

floors of the old depot, with the law library

installed in the old freight rooms and the

court clerk’s office established in the former

telegraph office.

The train station, built in the Beaux Arts

style in 1911, was abandoned in 1984. The

city of Tacoma purchased the site from the

railroad, paid for the restoration costs of the

building and adjacent structures, and entered into a long-term lease with the General Services Administration to house the

federal court operations in the city. ❏

Tacoma’s restored Union Station, which now houses courtrooms and offices of the

U.S. District Court for the Western District of Washington, received an Honor

Award from the National Trust for Historic Preservation in Boston in October.

Bankruptcy Education Seminar Planned

for State Judges from Midwest

Boyum Receives 1994 Warren E. Burger Award;

Nominations Being Solicited for 1995 Award