State–Federal Judicial Observer

NEWS AND COMMENTARY OF INTEREST TO THE STATE AND FEDERAL JUDICIARY

A Federal Judicial Center publication to further state–federal judicial relations • Number 15 • June 1997

Inside . . .

See WISCONSIN, page 3

State and federal judges in Colorado

have organized a state–federal judicial council. Six state judges and five federal judges

met in Denver on January 20, 1997, to

consider a charter for the new organization.

Chief Justice Anthony F. Vollack (Col.

Sup. Ct.) and Judge John C. Porfilio (U.S.

10th Cir.) led the effort to create the council

and were elected co-chairs of the new organization, which will be known as the Colorado Judicial Coordinating Council.

The new council will be composed of

not less than seven state judges and not less

than four federal judges. The state judges

will be selected from the Supreme Court,

the Court of Appeals, and the District and

County Courts. The federal members will

include district judges, a court of appeals

judge, and a bankruptcy judge.

 Four standing committees were established: automation and security; judicial

education and resources; dissemination of

information; and concurrent jurisdiction.

A new charter for the council was formally adopted at a second meeting in Denver on March 15, 1997.

One of the projects of the new council

will be an educational seminar for state and

federal judges.

The new Colorado council is the 35th in

the United States and its territories. ❏

by Melissa Deckman Fallon

Intern, Interjudicial Affairs Office

Federal Judicial Center

The Wisconsin state court system, under

the leadership of Wisconsin Supreme Court

Chief Justice Shirley S. Abrahamson, has

inaugurated specific court–community

projects to build public confidence in the

courts and promote respect for the judiciary.

In describing these innovative programs,

Justice Abrahamson noted that the words of

the late U.S. Supreme Court Justice

Thurgood Marshall still ring true today:

“We must never forget that the only real

source of power that we as judges can tap is

the respect of the people.”

“The third branch is the least understood

branch of government,” said Justice

Abrahamson. “If we are to maintain the

respect of the people for

the work of the courts, we

must ensure that our partnership with the public is a

strong one. We can

strengthen that partnership

by acknowledging that litigants and the bar are consumers of our services, and

by looking at our roles from

the perspective of those

who appear before us and

that of the entire community we serve. Public impressions of the system of

justice are all-important—

whether litigants, witnesses, and jurors are

treated fairly and with respect; whether claims are

promptly and efficiently resolved according to the law; whether, in short, our courts

are seen as this society’s chosen forum for

resolving disputes and achieving justice.”

One of the goals of the Wisconsin Supreme Court is to foster a court–community partnership that involves both judicial

and public participation. The Wisconsin

programs are basically divided into two

categories: judicial outreach and public

volunteerism. Members of the judiciary

work with citizens to help them become

better informed about the work of the court

while the public is invited to learn about the

courts through volunteer programs. Some

of Wisconsin’s programs include the following:

• Justice on Wheels—Each year since

1993, the Supreme Court has taken its proceedings “on the road” so that the public in

other parts of the state can witness oral

arguments. Past sites have included Green

Bay, Eau Clare, and Milwaukee. Local attorneys give lectures to the audiences before each session. The lectures include a

brief synopsis of the case

about to be argued and an

explanation of court procedures. Local schools are

made partners in the event,

participating in essay contests and shadowing local

judges and court staff who

are invited to the classroom

to explain the court system.

Last year in Milwaukee, proceedings from oral arguments were carried live on a

local cable channel in Milwaukee, which garnered the

program an “Ideas in Action: Youth Explore the

Media” Award from the

National Telemedia Council, Inc. Since 1993, over

4,000 Wisconsin citizens have participated

in Justice on Wheels.

• Speakers Bureau—The director of state

courts has created a speakers bureau to help

more than 100 judges around the state share

their areas of expertise with the public. The

bureau works with civic groups, social organizations, professional associations,

schools, law-enforcement groups, and veterans and senior citizen organizations to

find a judicial speaker who will be appropriate to their audiences. Considerations of

judicial ethics forbid certain public interest

groups from using this service.

• Court with Class—Begun last fall, this

program is a joint venture of the Wisconsin

state bar and the Wisconsin Supreme Court.

“Court with Class” brings high school students to the state supreme court to hear an

oral argument. Afterwards, one or more of

the justices meets with students to talk

about law-related issues of interest to the

class. The state bar contacts each public and

private high school across the state to make

them aware of this opportunity. In addition,

the local media is contacted regarding the

school’s visit. Since last September, 780

students have participated in the “Court

with Class” program.

• Seminar for the News Media—Held on

March 20, 1997, this seminar was a joint

effort of the state supreme court and several

professional journalism associations from

Wisconsin. The seminar was designed by

media representatives and judges to educate reporters and news directors. Participants were given lectures on how the supreme court and courts of appeals work,

followed by tours of the law library and

supreme court chambers. Questionnaires

filled out after the seminar revealed a favorable reaction to the seminar. In addition to

holding seminars every 2–3 years, plans are

in the works to hold media seminars on a

regional basis for the Wisconsin courts of

appeals and Wisconsin circuit (trial) courts.

• Law Day Program—Chief Justice

Abrahamson initiated the court system’s

first statewide effort to reach the public on

Law Day. Over three-quarters of the state’s

courthouses have recently hosted Law Day

celebrations to better acquaint the public

with the work of the courts. In recent years,

Supreme Court justices have taken to the

Internet on Law Day by teaching interactive civics lessons to high school students.

• Localized Court Visitors’ Guide Program—Launched to make the courthouses

more user-friendly, this program has placed

localized visitor guides in each of the state’s

70 courthouses. Courts in Hawaii, Iowa,

Kentucky, Maryland, and Montana are looking at duplicating this process.

• Volunteers in the Court System: Partners for Justice—The Wisconsin Supreme

Court has launched an extensive effort to

Judge Joseph H. H. Kaplan (Md. Cir. Ct.), at left, and Judge Marvin J. Garbis

(U.S. D. Md.) sat together in a joint settlement hearing on November 26, 1996,

involving suits pending in both the U.S. District Court for the District of

Maryland and the Circuit Court of Baltimore County, Md. The cases involved the

same or similar issues relating to the alleged failure of the city school system of

Baltimore to provide adequate special education for handicapped students.

Judge Garbis and Judge Kaplan had previously agreed to conduct a joint trial of

the federal and state cases and had entered an order setting forth the rules by

which such a trial would be conducted before a settlement was reached. At the

joint hearing the two judges received the terms of the settlement and entered an

order relating to the terms of the settlement.

Colorado Forms

State–Federal

Judicial Council

Wisconsin Court Programs Promote Public Confidence

State, Federal Judges Share Bench in Maryland

Wisconsin Supreme Court

Chief Justice Shirley S.

Abrahamson—began

innovative programs to

build public confidence

in the courts

Spectators pack a courtroom in Green Bay, Wis., to hear arguments before the

Wisconsin Supreme Court as part of the court’s “Justice on Wheels” program.

The court’s principal office is in the state’s capital, Madison.

New State–Federal Manual 2

Midwest State–Federal

Conference 2

Judicial Federalism in

Congress 2

USAID Project Seeks Aid 2

“Hanging Judge” Isaac Parker 3

Human Rights Conference 3

S–F Judicial Council Roundup 4
2 • State–Federal Judicial Observer • a Federal Judicial Center publication to further state–federal judicial relations • Number 15 • June 1997

OBITER DICTUM

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.

Rya W. Zobel, Director, Federal Judicial Center

Russell R. Wheeler, Deputy Director, Federal Judicial Center

EDITOR:

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

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 staff of the Interjudicial Affairs Office of the Federal

Judicial Center. On matters of policy, the Federal Judicial Center speaks only through its Board.

State–Federal Judicial Observer

a publication of the Federal Judicial Center

Judicial Federalism in Congress:

The Year in Review

J U D I C I A

F

L

E D E R A L

C E N T E R

See OBITER, page 3

by Senator Orrin G. Hatch (R-Utah)

The end of the 104th and the first months

of the 105th U.S. Congress provide an

appropriate time to consider the efforts the

Congress made in 1996 in accommodating

the unique roles of the state and federal

judicial systems. Certainly, the

104th Congress paid close attention to issues of state and

federal jurisdiction and made

concerted efforts to ensure that

the two systems work together.

For example, the Congress

passed product liability reform

legislation that was crafted to

respect the authority of the

states and the role of state

courts. At the same time the

legislation addressed some of

the more extreme litigation abuses in cases

subject to federal jurisdiction—cases involving out-of-state defendants and products in interstate commerce. The legislation included a preemption provision that

set outer boundaries on state legislation but

permitted states great leeway within those

bounds to enact whatever limits on product

liability litigation they might conclude were

most appropriate. Unfortunately, President

Clinton vetoed the product liability bill, as

he did the other major civil litigation reform measure, the securities litigation reform bill. Although Congress was able to

override the veto of securities litigation

reform, it lacked the necessary votes to

override the product liability reform veto.

Judicial Improvements Bill

On other fronts, we saw more concrete

results. In July 1996, the Senate Judiciary

Committee considered and favorably reported a judicial improvements bill, the

Federal Courts Improvement Act of 1996,

which I cosponsored with Senators Grassley

and Heflin. A number of provisions involved issues of state and federal judicial

relations. For instance, the legislation raised

the amount-in-controversy requirement in

federal diversity cases from $50,000 to

$75,000. This provision should help keep

cases out of federal courts that have little

justification for being there.

The bill also reauthorized the State Justice Institute, a federal agency that provides grants related to the state court systems. Some in Congress, myself included,

have been concerned that the State Justice

Institute should provide grants more closely

related to improving the efficiency of the

state courts and should distribute grants

more equitably among the states. Accordingly, the Subcommittee on Administrative Oversight and the Courts included

provisions requiring the State Justice Institute to make and administrate grants within

those guidelines.

Three-Branch Conference

The 104th Congress also hosted a

“Three-Branch Conference” in January

1996. That conference—the second of its

kind—provided a forum for an informative

and open discussion of many topics of

importance to the federal judiciary, including the mission of the federal courts, the

federal judiciary’s role in the legislative

process, and the remedial power of federal

courts over state institutions. Not only did

I include representatives of the three

branches of the federal government in the

discussions, but I also invited a number of

prominent state government officials to

add their perspectives on federal–state relations. Their viewpoints were enlightening and remain valuable to Congress in

considering legislation that affects the

states.

Much work remains for us in the 105th

Congress. We certainly need to address

some of the outrageous litigation abuses

that plague both our state and federal courts.

I would like to have the Judiciary Committee continue to take a hard look at the legal

profession. As a trial lawyer and a legislator, I have had the opportunity to participate

in the legal system from a variety of perspectives for almost 35 years. Like many

Americans, I have grown increasingly concerned that the

legal profession is in crisis.

Lawyers are widely perceived

as avaricious, amoral, and concerned more with financial

gain and self-promotion than

with justice and individual

rights. There is justification

for such perceptions. Judges

are frequently viewed as unable or unwilling to control

the abuses arising out of these

characteristics.

To be sure, some of the sentiment about

lawyers is overstated and may be based at

times on a limited appreciation for the burdens facing our courts and for the role of

lawyers—which necessarily means that the

lawyer must at times be on the unpopular

side of an issue or dispute. Nonetheless, I

am increasingly convinced that the perceptions about lawyers contain more than a

grain of truth, and it is one about which all

of us involved with the state and federal

justice systems should be deeply apprehensive.

Legal Profession Falling Prey

I am also concerned that the legal profession may be falling prey to its worst elements. A lawyer’s ability, it seems, is often

measured by the size of his or her verdicts or

partnership draw rather than service to the

client and to the legal system. On another

front, our bar associations are becoming

more concerned with political agendas and

less concerned with ethics. There are trial

lawyers who have abused our legal system

by filing frivolous or unfounded suits. Our

courts often face unnecessary litigation—

or unnecessarily protracted and unnecessarily complicated litigation. I think the

legal profession and the courts would do

well to support critical legal reform to correct these abuses. In conjunction with other

measures, legal reform is going to be a

necessary component of any attempt to address what is wrong with the litigation system today.

Of course, the relative size and composition of the federal judiciary continues to be

an issue that is periodically raised before

the Judiciary Committee. My own view is

that we should focus on making our federal

courts more efficient instead of continuing

indefinitely to increase the size of the federal judiciary. We should look carefully at

the burdens we may be placing on state

courts when enacting federal legislation so

that state courts are not forced to grow

without adequate justification or resources.

State courts, no less than other components

of state governments, should not be subject

to “unfunded mandates” passed on by Congress.

Courts Can Improve Efficiency

There is of course much that the courts

can do under their own authority to improve

the efficiency of litigation. I support and

encourage those efforts. I would like to see

courts continue to encourage alternative

dispute resolution and improved case management. Courts should sanction abusive

litigation practices and move cases along.

Courts should take a hard look at the appropriateness of judgments, particularly excessive punitive damage awards. By overseeing the litigation process closely, courts can

help remove some of the excesses that too

This past March the Federal Judicial

Center, the National Center for State Courts,

and the State Justice Institute published the

Manual for Cooperation Between State and

Federal Courts.

The Manual, written by James G. Apple

of the FJC and Paula L. Hannaford and G.

Thomas Munsterman of the NCSC, covers

cooperative efforts between the two court

systems. Specific areas covered include the

following: complex and multijurisdictional

litigation; bankruptcy matters; habeas and

appellate matters; certification and preemption issues; education and training; ethnic,

gender and racial issues; and facilities and

services.

The Manual also includes sections on

state–federal judicial councils and regional

state–federal conferences.

An appendix contains forms for various

types of state–federal cooperation, sample

judicial orders, and descriptions of administrative systems and procedures that have

been established in different states to further state–federal cooperation.

Copies of the Manual may be obtained

by writing to Information Services, Federal

Judicial Center, Thurgood Marshall Federal Judiciary Building, One Columbus

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

phone (202) 273-4153, fax (202) 273-4025,

or the National Center for State Courts, 300

Newport Avenue, Williamsburg, VA 23185,

phone (757) 253-2000, fax (757) 220-

0449. ❏

The Administration of Justice Project in

Haiti, funded by USAID and implemented

by Checchi and Company Consulting, Inc.,

of Washington, D.C., is currently seeking

judges and court personnel, including retired or senior judges and retired court personnel, to serve as mentors to judges in the

Haitian judicial system. Mentors will live

and work in regional court centers throughout Haiti. Responsibilities include

mentoring current or newly appointed judges

in judging skills (not substantive Haitian

law). Subjects included in the mentoring

project include independence of the judiciary, judicial ethics, critical thinking and

decision-making, human rights, courtroom

conduct, and the fact-finding process.

The project needs commitments of three

to twelve months from interested and eligible persons. Compensation includes transportation, living expenses, and, for those

who are eligible, salary. Applicants must

have experience as judges or as judicial

educators, speak fluent French, and have

knowledge of civil-code-based legal systems through reading or practical experience. Work experience in developing legal

systems would be helpful. Interested persons should send a c.v. with cover letter to

International Project Coordinator, 104 Proctor Circle, Williamsburg, VA 23185, and to

Projet d’Administration Judiciaire, Port au

Prince, Haiti, fax: 011 509 45 6466. ❏

The American Judicature Society is planning a Midwest Conference on State–Federal Judicial Relationships to be held in the

fall of 1997 in St. Louis, Mo.

The conference is being supported by a

grant from the State Justice Institute. The

Federal Judicial Center will provide funds

for a limited number of federal judges to

attend the conference.

One of the major topics of the meeting

will be state–federal cooperation toward

building and sustaining public confidence

in the judiciary and the courts.

Dr. John C. Domino, assistant executive

director of programs for the AJS, is the

project director. A planning committee

meeting of representatives of the state and

federal courts was held in Chicago in early

April.

The conference will consist of two days

of plenary sessions and small-group discussions covering existing and potential

state–federal cooperative activities in the

14 states making up the regions of the U.S.

Courts of Appeal for the Sixth, Seventh,

and Eighth Circuits. These states are Arkansas, Illinois, Indiana, Iowa, Kentucky,

Michigan, Minnesota, Missouri, Nebraska,

North Dakota, Ohio, South Dakota, Tennessee, and Wisconsin. Each state will be

represented by state and federal judges and

court administrators.

Further information about the conference can be obtained from Dr. John C.

Domino or Seth Anderson, American Judicature Society, 180 North Michigan Ave.,

Suite 600, Chicago, IL 60601-7401, phone

(312) 558-6900, fax (312) 558-9895. ❏

USAID Project in Haiti Seeks Assistance

from Judges and Court Personnel

Midwest State–Federal Conference Planned for Fall 1997

FJC, NCSC Jointly Publish Manual for

Cooperation Between State and Federal Courts
State–Federal Judicial Observer • a Federal Judicial Center publication to further state–federal judicial relations • Number 15 • June 1997 • 3

OBITER, from page 2

often encourage even greater excesses.

In the criminal justice area, Congress

enacted antiterrorism legislation in April,

which included some much needed reforms to our habeas corpus system and

laws governing other prisoner lawsuits.

The Prisoner Litigation Reform Act and

the Habeas Reform Act will help curb

excesses of prison inmate litigation that

have burdened federal courts and states.

The Judiciary Committee also kept a

busy hearing schedule. The committee

held oversight hearings on the handling

by the FBI and the White House of confidential FBI personnel files, on the prevalence of church burnings, and on the

resurgence in drug use.

In the 105th Congress, I look forward

to continuing to work with members of

the state and federal judiciary to improve

the operation of the courts and their ability to provide justice to our citizens. The

judiciary may indeed be our smallest

branch of government, but it is a branch

coequal with the executive and legislative in importance. It is no less essential

as part of our tripartite system of government, a system on which freedom depends. ❏

by Thomas C. Bogle

Intern, Interjudicial Affairs Office

Federal Judicial Center

During the period of the great westward

expansion of the nineteenth century, a vast,

70,000 square mile territory extending west

of Fort Smith, Arkansas, covering what is

now western Arkansas and the state of

Oklahoma, was a “no-man’s land,” commonly called the Indian Territory, that served

as a haven for all kinds of fugitives from

justice—murderers, thieves, and rapists. It

was called “Robbers’ Roost” and had virtually no law enforcement.

Glenn Shirley, an expert on frontier justice, noted of this area that “no American

frontier ever saw leagues of robbers so

desperate, any hands so red with blood . . .

decent men, red and white alike, cried to the

government for protection.”

The only court with jurisdiction over

this vast territory was the U.S. District

Court for the Western District of Arkansas,

in Fort Smith. But the judges who presided

over this district before 1875 were unable

to curb the violence. One judge of that court

was even threatened with impeachment

because of high court costs and the few

cases being tried. He resigned from his

office.

All this changed with the appointment

and arrival in Fort Smith of Judge Isaac

Charles Parker, a man whose strength of

principle and tough justice led to his being

named “the hanging judge.”

Judge Parker had considerable experience in the law and in public service in his

home state of Missouri before his arrival in

Fort Smith. He had served as attorney for

the city of St. Joseph, Missouri; as a Missouri state prosecuting attorney; and as a

judge of the Missouri Ninth Judicial Circuit. He had been elected to two terms in

Congress and was an unsuccessful candidate in Missouri for the U.S. Senate.

President Grant originally appointed

Parker as Chief Justice of the Territory of

Utah in 1875. Parker informed Grant that

he would rather take the judgeship in the

Western District of Arkansas because it was

closer to his home in Missouri. Parker had

practical knowledge of Indian affairs, and

Grant immediately withdrew the Utah appointment in favor of the judgeship in Fort

Smith.

When he arrived in Fort Smith, Judge

Parker immediately appointed 200 marshals and sent them out into the Indian

Territory, which was the court’s geographical jurisdiction. Of fugitives in hiding, he

reportedly instructed his marshals to “Bring

them in alive—or dead.”

 Eight days after his arrival, he opened

his first session of court. After 18 trials, 15

defendants were convicted, of which eight

were sentenced

to hang. President Grant commuted one sentence to life in

prison; a second

prisoner was

killed in an escape attempt.

Four months

later the remaining six men were

hanged together

on the town’s

gallows.

The public

hangings drew

the attention of

the nation, and

media from all

parts of the

country came to

Fort Smith to

cover them.

Over the next 20 years, Parker’s U.S.

marshals brought in thousands of fugitives

from all parts of the Indian Territory. This

was not without danger: during Parker’s

tenure on the bench, more than 65 marshals

were killed in the line of duty. Nevertheless, the flow of arrested fugitives into Fort

Smith continued, and they were treated

with swift justice. Parker worked from dawn

to dusk, and often into the late evening. He

observed few holidays, but did refrain from

work on the Sabbath.

Parker’s reputation as a “hanging judge”

was well deserved. No American judge has

ever sentenced as many men to die as Judge

Parker did. In his 21 years on the bench,

over 13,000 criminal cases were docketed.

Of this total, over 9,000 entered pleas of

guilty or were convicted. Of the 344 cases

that were punishable by the death penalty,

160 were convicted and 79 men were

hanged.

Over the course of Judge Parker’s long

tenure on the bench, murderers and thieves

could use the Indian Territory as a refuge

less and less, largely because of the efforts

of the judge’s marshals and his own diligence in conducting criminal trials.

The public perception of Parker as a

“hanging judge” seemed to indicate that he

was an insensitive brute, a judge who sentenced convicted criminals to death lightly.

Parker actually was a very gentle man, but

someone who believed in the rule of law,

and especially believed in respect for the

law.

These deeply

held convictions

are illustrated by a

case recounted by

J. Fred Patton, a

Fort Smith historian, in his book A

History of Fort

Smith, Arkansas. A

member of the

Creek Indian tribe

once stood before

Judge Parker

charged with the

killing of a Cherokee Indian police

officer. Though

cases involving

Native Americans

as defendants did

not usually fall under Judge Parker’s

jurisdiction, this

particular case presented an exception because the murder

victim was a law enforcement official.

The testimony in the case showed that

the Cherokee policeman entered the

defendant’s home just before daylight in

the belief that he was harboring a train

robber. In fact, he was not. Not knowing the

nature of the intrusion, he shot the police

officer and was brought to trial for murder.

Judge Parker instructed the jury to acquit

the defendant of the murder charge on the

grounds that he had a right to resist the

intrusion of his house without a warrant of

arrest.

When the verdict of “not guilty” was

given in the case, there were cheers and

applause from the courtroom, and spectators threw their hats in the air. Outraged at

this expression of joy in the courtroom,

Parker admonished the crowd, “Justice is

justice—not chivalry.” He arrested every

man who participated in the outburst and

fined them each $50.

Another reflection of the Judge Parker’s

compassion lay in his belief that the accused were innocent until proven guilty. “I

am mindful,” he once said, “of the wise and

merciful provision of the law which declares it better that ninety-five guilty ones

should escape than that one innocent man

should suffer.”

 Parker was also a physically strong man.

In one case, a powerful defendant stood

before him charged with a capital crime.

The man suddenly sprang from the witness

chair and jumped on Parker’s desk with the

intent of escaping through the back door.

Parker threw his arm around the man’s legs

and forced him to the ground until deputy

marshals could relieve him.

Perhaps the most amazing fact concerning Parker’s reign on the bench was that, for

14 of his 21 years as judge, there was no

appeal from Parker’s court. The only hope

of a convicted criminal for relief from a

sentence was a commuting of the sentence

or a full pardon by the President of the

United States. It wasn’t until 1889 that

Congress passed a statute providing for

appeals from certain district courts, including Parker’s court, to the U.S. Supreme

Court.

Patton notes that from 1875 to 1889

Judge Parker quietly lobbied for presidential action when he felt that the prescribed

sentence was too strict. In one instance,

Parker assisted in the commuting of a sentence of death for three Creek Indian boys

to prison because of their age.

Judge Parker literally worked himself to

death. In 1895 he was only 58 years old, but

the 21 years of serving on the bench had

taken its toll on the judge’s health. He

resigned his appointment and died two

months later. In a final interview before his

death, Parker was asked his motto. His

response was “To do equal and exact justice.” ❏

Frontier “Hanging Judge” Isaac Charles Parker Helped Tame American West

expand the use of volunteers for support of

certain specific court programs, including

sponsoring a one-day conference for such

court volunteers. A multidisciplinary coordinating committee, which has been established to foster court volunteer programs, is

working with the American Association of

Retired Persons on a pilot project to recruit

and train volunteers in six counties who

will ensure the well-being of individuals

placed under guardianships. Other potential volunteer programs currently under

examination involve supervising visits between noncustodial parents and their children and serving on panels to make recommendations on minor, first-offender juvenile matters.

Costs Minimal, Benefits Great

The costs associated with these programs are minimal. The “Justice on Wheels”

program costs between $6,000 and $10,000

annually, depending on the city the court is

visiting and how many activities are planned

there. Costs for the other programs are

typically lower, as a result of their joint

sponsorship. For example, the “Courts with

Class” program costs the supreme court

less than $80 a month because the Wisconsin state bar pays for most of the mailing

and set-up involved in running the program. The only expenses for the court in the

conduct of the media seminar were the

price of table skirts and information packets; the cosponsors paid for the rest of the

expenses.

Justice Abrahamson asserts that the benefits of these programs “far exceed any

costs or inconveniences of implementing

them.” She notes that members of her own

court and staff have been “astounded at the

number of ideas that have begun coming in

from both inside and outside the court system since we have been proactive in reaching out to the people of the state.”

Conference of Chief Justices

Shows Interest

The success of these programs has led

other states to contact the Wisconsin Supreme Court for materials about the programs. Further, the Conference of Chief

Justices has expressed interest in promoting the Wisconsin programs. The hope of

Chief Justice Abrahamson and others is

that these programs will be duplicated by

other states to increase public involvement

and awareness in the judiciary. ❏

WISCONSIN, from page 1

State, Federal Judges

Attend Human

Rights Seminar

Fourteen federal and two state judges

participated in a conference on “Human

Rights Law: Its Application in National

Jurisprudence” at the Aspen Institute’s

Wye Center in Queenstown, Md., November 1–3, 1996.

Also participating in the seminar were

two judges from courts in other countries:

Justice Pius N. Langa of the Constitutional Court of South Africa and Justice

H. J. McNally of the Supreme Court of

Zimbabwe.

Nicolas Bratza, Q.C., of London, England, represented the European Commission on Human Rights at the conference. Dr. Juan E. Mendez, director of the

Inter-American Institute for Human

Rights, San Jose, Costa Rica, also attended.

The conference opened with a session

by Professor Louis Henken of Columbia

University Law School on the background, standards, and principal instruments of international human rights.

Successive sesssions dealt with international human rights in U.S. case law

and jurisprudence, assessing evidence of

human rights violations, political and regional implementation of international

human rights, and international human

rights in immigration and refugee cases.

The seminar was the fifteenth that the

Aspen Institute has conducted for federal

and state judges since 1982, when the first

seminar was held.

Judges interested in participating in

future seminars can obtain information

by contacting Ms. Alice H. Henken, Director, Justice and Society Program, Aspen Institute, 787 Seventh Ave., 36th Floor,

New York, NY 10019, phone (212) 554-

1311, fax (212) 554-3745. ❏

Isaac Charles Parker, the “Hanging Judge” of

Fort Smith, Arkansas, helped bring order to a

violent territory filled with fugitives from justice.

(Photo from Law West of Fort Smith by Glenn Shirley, copyright

© 1957 by Glenn Shirley. Source: University of Nebraska Press.)
4 • State–Federal Judicial Observer • a Federal Judicial Center publication to further state–federal judicial relations • Number 15 • June 1997 State–Federal Judicial Observer (#15) a publication of the Federal Judicial Center Interjudicial Affairs Office Federal Judicial Center Thurgood Marshall Federal Judiciary Building One Columbus Circle, 

N.E.

Washington, DC 20002-8003

California—The California State–Federal Judicial Council met on November 1,

1996, in San Francisco. The main topic of

discussion was a proposal to permit federal

appellate courts to certify to the California

Supreme Court state-law questions of first

impression that would be pivotal to the

decision in the federal case.

Jerry Gardner, senior staff attorney with

the National Indian Justice Center in

Petaluma, addressed the council on tribal

court relations. The tribal court system in

California has the second largest Indian

population of any state. Three new tribal

consortium courts have been proposed. A

subcommittee was created for further research on ways the council might assist the

tribal courts in the formation of the new

tribal courts and through resource sharing.

Chief Justice Ronald M. George (Cal.

Sup. Ct.) updated the council on recent

state legislation affecting capital cases that

failed to pass this session but is expected to

pass this year. Other topics discussed at the

meeting included public confidence in the

judiciary, civil and prisoner pro se litigation, and the status of the proposed split of

the Ninth circuit.

Georgia—The annual meeting of the

Georgia State–Federal Judicial Council was

held June 5, 1996, in Savannah. Five judges

from the federal courts, 31 judges from the

state courts, and representatives from Georgia State University College of Law, the

Georgia Administrative Office of the Courts,

and the Georgia Institute of Continuing

Judicial Education attended. U.S. Bankruptcy Judge Joyce Bihary (U.S. N.D. Ga.)

moderated a panel discussion on automatic

bankruptcy stays and their impact on the

state courts.

Hawaii—Honolulu was the site of the

June 13, 1996, meeting of the Hawaii State–

Federal Judicial Council meeting. Judge

Melvin Soong (Haw. Cir. Ct.) updated the

council on the activities of the state court

committee for the certification of court

interpreters. Using the federal court certification program as an example, the committee developed training programs for judges,

a code of ethics for interpreters, and a

questionnaire for potential interpreters.

U.S. Magistrate Judge Francis Yamashita

(D. Haw.) reported on changes in the outer

island misdemeanor calendar. Three magistrate judges now ride circuit to the outer

islands. State judges permit the federal

magistrate judges to use their courtrooms

for hearings and trials.

Reports were also given concerning the

status of the split of the Ninth Circuit, the

construction of a new prison facility, and

the introduction of videoconferencing in

the state courts. The council also discussed

the need for tighter security in the state

courts through the use of X-ray and walkthrough metal detector equipment.

Iowa—The Iowa State–Federal Judicial Council met during the Iowa BenchBar Conference on May 18, 1996. The two

major topics for discussion were (1) jury

nullification and its impact on upcoming

judicial elections and (2) the recommendations issued by the Equality in the Courts

Task Force. The task force’s recommendations included the training of judges and

court personnel on equality issues; the formation of a related committee by the Iowa

Bar Association; and the amending of ethical rules governing sexual relationships

between attorneys and clients, and membership in discriminatory groups.

The council also discussed the use of

evaluations to help identify judges who

need counseling from other judges about

their demeanor and behavior.

Louisiana—The State–Federal Council of Louisiana held a luncheon meeting in

Lafayette on April 11, 1997. Chief Judge

State–Federal Judicial Council Roundup

Henry Politz (U.S. 5th Cir.) and Chief Justice Pascal F. Calogero, Jr. (La. Sup. Ct.)

discussed the historical and current working relationship between the state and federal courts and the benefits the State–Federal Judicial Council has brought to both

judiciaries. Both judges noted that open

communication between the two judiciaries has made the moving of federal prisoners to state courts for revocation hearings

easier and more efficient. The Federal Judicial Center/National Center for State Courts’

publication Manual for Cooperation Between State and Federal Courts was discussed. Other topics considered included

the need for tracking death penalty cases

and the status of the state Indigent Defender

Board. An update on prisoner civil rights

cases in Louisiana was given by District

Judge Frank J. Polozola (U.S. M.D. La.).

Each judge was called on by Judge Politz to

publicize the council’s activities to other

state and federal judges. He suggested that

judges need to be better aware of the services available through this council.

Missouri—The University of MissouriColumbia law school was the site of the

April 26, 1996, meeting of the Missouri

State–Federal Judicial Council. The judges

discussed the new federal habeas corpus

statute signed by President Clinton in 1996

and the issue of lawyer discipline. Currently, lawyers can be readmitted to practice law in Missouri without review by

federal judges. Council members expressed

concern over this procedure. Chief Justice

John C. Holstein (Mo. Sup. Ct.) indicated

that he would ask the disciplinary counsel

to make inquiry of the federal district courts

if they objected to the readmission of an

attorney to practice law.

Other issues before the council included

Missouri’s “cameras in the courtroom”

project and concern over the backlog of

criminal cases in Kansas City.

Nevada—The Nevada State–Federal

Judicial Council met in Las Vegas on November 22, 1996. Chief Justice Miriam

Shearing (Nev. Sup. Ct.) suggested inviting

representatives from tribal courts to future

meetings.

Council members heard reports on the

status of two committees studying racial

and economic bias in cases and the processing of death penalty cases, respectively.

Judge Melvin T. Brunetti (U.S. 9th Cir.)

reported on legislative efforts to split the

Ninth Circuit because of case-processing

delays in the circuit. Although unsuccessful in the 104th Congress, a renewed effort

is expected to begin with the 105th Congress.

U.S. Bankruptcy Judge Robert Clive

Jones (D. Nev.) observed that a change in

Chapter 13 to include child support and

spousal support obligations has the potential for conflict with state family court decisions.

Anne Cathcart of the Nevada Attorney

General’s Office reported on the potential

for video-teleconferencing between the

courts and prisons and the impact of the

new Federal Litigation Reform Act of 1996,

designed to reduce the number of frivolous

prisoner lawsuits in the federal courts.

North Carolina—Judge James Dickson

Phillips Jr. (U.S. 4th Cir.) hosted the May

31, 1996, reorganizational meeting of the

North Carolina State–Federal Judicial

Council in Chapel Hill.

After a brief review of the council’s

history, the members discussed future formats and possible topics, including habeas

corpus reform, death penalty litigation,

videoconferencing for prisoners, and courtroom security. Other suggestions included

sending a questionnaire to all state and

federal judges to identify issues that the

council should address.

The issue of certification of state laws by

federal courts was debated and deferred for

action to the next meeting of the council.

Oklahoma—Members of the Oklahoma

State–Federal–Tribal Judicial Council met

on November 14, 1996, in Oklahoma City.

Magistrate Judge Bana Roberts (U.S. W.D.

Okla.) discussed several issues concerning

prisoners’ lawsuits, including a new prison

grievance process now in place that requires prisoners to exhaust certain administrative procedures before being allowed to

file some civil suits. Additionally, she reported changes in how prisoners pay filing

fees for the filing of civil suits under the

Prison Litigation Reform Act.

Judge Michael Burrage (U.S. E.D. Okla.)

reported on scheduling conflicts between

state and federal courts and circulated the

statute from Georgia (as a model to follow)

and a draft proposal for Oklahoma.

Justice Yvonne Kauger (Okla. Sup. Ct.)

observed that the Oklahoma Supreme Court

is considering new approaches to training

court personnel in alternative dispute resolution. Judge Patrick Moore of the Muscogee

(Creek) Nation District invited council

members to an upcoming Sovereignty Symposium dealing with tribal issues.

Rhode Island—The Rhode Island

State–Federal Judicial Council meeting on

January 15, 1997, included discussion on

certification of questions of law from the

federal courts to the Supreme Court of

Rhode Island. Members noted that the establishment of clear procedures regarding

certification and a willingness on the part of

the state supreme court to give certification

questions appropriate priority has ensured

a good working relationship between the

two courts concerning this issue.

A discussion of “civility” in court proceedings was led by Chief Justice Joseph

Weisberger (R.I. Sup. Ct.), who reported

that a study of courtroom behavior was

recently completed by the state courts.

Justice John Bourcier (R.I. Super. Ct.)

discussed the impact of rapidly changing

technology processes on the courts. Justice

Victoria Lederberg (R.I. Sup. Ct.) reported

on the judicial evaluation program in the

state courts.

Virginia—Chief Justice Harry L.

Carrico (Va. Sup. Ct.) chaired a meeting of

the Virginia State–Federal Judicial Council

in Richmond on September 24, 1996. Professor Earl C. Dudley of the University of

Virginia School of Law discussed the importance of judicial independence and separation of powers and the effect of the judicial selection process (both at the state and

federal level) on judicial independence.

The Parental Rights and Responsibilities Act currently before Congress was reviewed by Judge Jean Clements (Va. Dist.

Ct.). Judge William Sweeney (Va. Cir. Ct.)

shared a new settlement process currently

being used in his circuit where cases before

one judge are sometimes referred to another judge for a settlement conference.

The Virginia council also met in Richmond on April 8, 1997. The council adopted

a new charter after Chief Justice Carrico

reviewed the history of the council. Other

subjects discussed at the meeting were the

proposed victims’ rights amendment pending in the U.S. Congress and the proposal of

the American Bar Association for state and

federal courts to develop a standard, format-neutral citation system. ❏