Cost Containment and the Federal Judiciary

I N - D E P T H

In April 2004, it was estimated that within five years the federal Judi-ciary’s operating requirements—the money needed to pay staff, juror’s fees, courthouse rent, phone bills and all the other expenditures that keep the courts running—would exceed the funding provided by Congress by close to $850 million.

In fact, such a deficit would threaten thou-sands of court jobs.

Instead, the federal Judi-ciary regards its future with cautious opti-mism, largely because of an aggressive cost-contain-ment program begun three years ago, along with an equally aggressive outreach program to Congress. Thanks to the Judiciary-wide cost-containment initiative, it is estimated that hundreds of millions of dollars in costs will be saved or avoided over the next decade.

It was a much different story in 2004. All of government faced a stringent budget environment. For the Judiciary, funding increases from Congress had shrunk below the level needed to continue the courts’ busi-ness as usual. Meanwhile, the Judi-ciary’s costs were rising for rent, personnel, and drug-testing and

treatment programs, as the court system absorbed record numbers of criminal defen-dants, appeals, civil, and proba-tion and pretrial services case-loads, and a near-record caseload in the bankruptcy system.

“You couldn’t look at those trends without realizing they were very adverse,” says Judge Carolyn Dineen King, who chaired the Judi-cial Conference Executive Committee from 2002 to 2005. “The federal

Fiscal Year 2008 Opens with CR

Fiscal year 2008 began on October 1, 2007, but the government is still spending at fiscal year 2007 levels. That’s because none of the FY 2008 appropriations bills have made it to the President’s desk for approval. A continuing resolution will keep the federal government funded and func-tioning until November 16, 2007.

The House passed the FY 2008 Financial Services and General

THIRDNewsletter

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Vol. 39

Number 10

October 2007BRANCH

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Surge of Cases May Swamp Federal Circuit ........................ pg. 7 Pretrial Services Act Turns 25 ................................................ pg. 10Election Season & Political Prohibitions .............................pg. 11 See 2008 CR on page 9

See Cameras on page 2

See Cost Containment on page 3

Judicial Conference Opposes Use of Cameras in Federal Trial Courts

Citing the Judiciary view that camera coverage can undermine the fundamental right of citizens to a fair and impartial trial, a representative of the Judicial Conference testified last month against H.R. 2128, the Sunshine in the Courtroom Act of 2007.

The bill was the topic of a House Judiciary Committee hearing at which Judge John R. Tunheim (D. Minn.), the chair of the Judicial Conference Committee on Court

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Cameras continued from page 1Administration and Case Manage-ment, testified.

“The Judicial Conference strongly opposes H.R. 2128 to the extent that it allows the use of cameras in the federal trial courts,” he told the Committee. “The Conference also opposes the bill’s provisions allowing the use of cameras by any panel in all courts of appeals, rather than allowing that decision to be made by each court of appeals as a whole, which is the present practice.”

Also testifying at the hearing were Judge Nancy Gertner (D. Mass.); Representative Ted Poe (R-TX); U.S. Attorney John Richter from the Western District of Okla-homa; Susan Swain, President of CSPAN; Barbara Cochran, Presi-dent of the Radio-Television News Directors Association, and Court TV anchor Fred Graham. Of the panel participants, only Tunheim and Richter pointed out the pitfalls of camera coverage.

U.S. Attorney Richter testified on behalf of the Department of Justice. In DOJ’s view of H.R. 2128, “the potential harm to fair trials and the cause of justice are many, are likely, and would be severe. In contrast, the benefits, if any, would be small.”

Electronic media coverage of criminal proceedings in federal courts has been expressly prohib-ited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946. In 1972, the Judicial Conference adopted a prohibition against “broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto,” a prohibition applying to criminal and civil cases.

The Judicial Conference began a three-year pilot program in 1991, allowing electronic media coverage of civil proceedings in six district and two appellate courts. The Conference subsequently concluded that cameras had a potentially

intimidating effect on some witnesses and jurors and that it was not in the interest of justice to permit cameras in federal trial courts.

“The Conference is convinced that camera coverage could, in certain cases, so indelibly affect the dynamics of the trial process that it would impair a citizen’s ability to receive a fair trial,” Tunheim said. “Since a United States judge’s paramount responsibility is to seek to ensure that all citizens enjoy a fair and impartial trial, and since cameras may compromise that right, allowing cameras would not be in the interest of justice.”

In 1996, the Judicial Conference made a distinction between camera coverage for appellate and district court proceedings.

“Because an appellate proceeding does not involve witnesses and juries, the concerns of the Confer-ence regarding the impact of camera coverage on the litigation process were reduced,” Tunheim said. The Conference agreed to authorize each court of appeals to decide whether

or not coverage would be permitted. The Second and Ninth Circuits pres-ently permit camera coverage in appellate proceedings.

“This is not a debate about whether judges would have personal concerns regarding camera coverage,” Tunheim explained. “Nor is it a debate about whether the federal courts are afraid of public scrutiny or about increasing the educational opportunities for the public to learn about the federal courts or the litigation process. Open hearings are a hallmark of the Federal Judiciary.

“Rather, this is a decision about how individual Americans —whether they are plaintiffs, defen-dants, witnesses, or jurors—are treated by the federal judicial process. It is the fundamental duty of the Federal Judiciary to ensure that every citizen receives his or her constitutionally guaranteed right to a fair trial . . . . [T]he Judicial Confer-ence believes that the use of cameras in the trial courtroom could seri-ously jeopardize that right.”

On behalf of the Judicial Conference, Judge John R. Tunheim (D. Minn.) told the House Judi-ciary Committee that camera coverage could impair a citizen’s ability to receive a fair trial. Also testifying at the hearing were (photo center) Judge Nancy Gertner (D. Mass.) and U.S. Attor-ney John Richter from the Western District of Oklahoma (photo right). Tunheim chairs the Judicial Conference Committee on Court Administration and Case Management.

The Third Branch n October 2007

budget deficit was soaring. It seemed that we were in a position that was just untenable. We had to get a grip on our costs so that we could have a better shot at living within our appropriation.”

In 2004, the Judicial Conference did just that. It approved a compre-hensive strategy for controlling costs in the Judiciary. The Cost-Contain-ment Strategy for the Federal Judiciary: 2005 and Beyond was developed by the Executive Committee with input from other Conference commit-tees and from judges and managers across the Judiciary.

“Cost containment is about restraining our costs, restraining our growth, so that our requirements and our appropriations will more closely approximate each other,” explained Budget Committee Chair Judge Julia Gibbons. “Each of the Judicial Confer-ence committees with spending authority scrutinized various policies, practices and customs within their jurisdiction,” she said. “They devel-oped a working list of areas in which savings might be possible.”

Here’s how the Judiciary refo-cused its future.

Space and Facilities Cost ControlAt the time, the Judiciary annually

paid the General Services Administra-tion (GSA) about $900 million in rent for court facilities, which represented 22 percent of the Judiciary’s budget. GSA rent charges increased each year for existing facilities. Between rising rent bills and new space, it was antici-pated that rent would increase about 6 to 8 percent a year.

To help reduce the rate of growth in rental expenses, in September 2004, the Judicial Conference agreed to delay 42 courthouse projects on the Conference’s five-year courthouse project plan for 24 months, giving the Judiciary time to re-evaluate whether courts could satisfy their additional space needs at lower costs.

“It was a drastic measure,” said Chief Judge Joseph F. Bataillon (D. Neb.), chair of the Committee on Space and Facilities. “We had to make a choice between having enough people to do the work and having facilities. The consensus was it was more important to maintain our staff. The moratorium effectively contained costs and slowed down the rate of growth for future years. It also helped us renegotiate a number

of issues with GSA that have been financially beneficial for us.”

Rent validation was one of those issues. Rent bills across the country were re-evaluated following the discovery of serious rent overcharges to the Judiciary in the Northern and Southern Districts of New York. “The courts in New York deserve a lot of credit for getting the ball rolling in this regard,” said Bataillon. Under the initiative, space assignment drawings were compared to court-occupied space in all federal build-ings and rental rates were exam-ined to ensure that the Judiciary was charged for space the courts legitimately occupied. In total, these initiatives resulted in almost $52.5 million in credit and cost avoidance savings for the Judiciary.

The Conference also acted to control rent growth. In September 2006, it set an annual cap for all future rent requirements at an average annual growth rate of 4.9 percent for fiscal years 2009 through 2016. At its September 2007 session, the Judicial Conference endorsed the circuit-level rent budget allotment program in order to stay within the 4.9 percent cap on rent. Under this program, circuit judicial councils will receive an annual rent budget that will cover current space, project-spe-

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Cost Containment continued from page 1

See Cost Containment on page 4

In annual appropriations hearings before Congress, (photo left to right) Administrative Office Director James C. Duff and Judge Julia Gibbons, chair of the Judicial Conference Budget Com-mittee, have explained not only the Judiciary’s financial needs, but also its cost-containment efforts.

Chief Judge Joseph F. Bataillon (D. Neb.)

The Third Branch n October 2007

cific funding for new courthouses, and a discretionary allotment to pay for their expansion space actions and space alteration projects, which enable more efficient use of space. All new courthouses or annexes, build-to-suit lease projects, requests for GSA feasibility studies, and prospec-tus-level repair and alterations proj-ects must still be approved by the Committee on Space and Facilities and the Judicial Conference.

“This is a sea change from how we’ve done business in the past,” said Bataillon. “We’re giving the circuit judicial councils more fiscal responsibility for the rent in their circuits. Now it will be incumbent upon the circuit councils to make sure they spend their dollars as wisely as possible.”

In addition, a major overhaul of the U.S. Courts Design Guide was recently completed with reductions in space requirements for judges’ cham-bers and staff. A courtroom utiliza-tion study is underway. The need for additional courtrooms is a primary factor in determining a need for addi-tional facilities.

Thanks to these initiatives, the rate of growth in the Judiciary’s rental payments has slowed in compar-ison to pre-cost-containment proj-ects. In 2004, the total cost of rent was estimated to rise 37 percent to $1.2 billion by 2009. Because of cost-control actions, in January 2007 the projected rent expense for 2009 fell by 13 percent from the original estimate to $1.09 billion.

Judiciary Personnel CostsCurrent workload projections,

staffing formulas, and compensation policies call for a growth of almost $1.4 billion in court support staff costs above current levels by fiscal year 2017. Long-range budget projec-tions will not support this level of funding. Reducing the rate of growth in the number of staff is one way to

reduce those costs, but another option is to reduce the growth in compensa-tion.

At its September 2007 meeting, the Judicial Conference approved recommendations for a major court job classification and compensa-tion study, which will affect staff positions nationwide. The Confer-ence also voted to give local courts greater autonomy in managing and paying their personnel, to limit the number of career law clerks—who are typically paid more than term law clerks—and to modernize its Court Personnel System benchmarks, which will affect the classification and grading of staff positions nationwide. The approved measures may save up to $300 million from FY 2009 through FY 2017.

“What we’re doing,” said Judge W. Royal Furgeson (W.D. Tex.), who chaired the Judicial Resources Committee until October 1, 2007, “will not necessarily take one employee off the rolls. What it will do is constrain the growth of sala-ries in our system and arrest some of the trends that have had us spending more money toward the top range of our salary structure.”

The Judicial Resources Committee has endorsed a comprehensive and rigorous work-measurement process to update court unit staffing formulas. The resulting formulas will

help define future staffing require-ments. In addition, the Criminal Law Committee proposed and the Conference approved modifications to work requirements of probation and pretrial services offices. These changes reduced staffing needs.

Effective Use of Technology“We are not spending money

on gadgets,” said Judge Thomas I. Vanaskie (M.D. Pa.), chair of the Judicial Conference Information Technology Committee, “we’re spending money on technology that makes us more productive.”

Containing information tech-nology costs while still pursuing useful advancements is the challenge. The key is to invest funds for infra-structure, applications and devices that will deliver these benefits.

The Judicial Conference has linked investments in information tech-nology to service improvements and efficiency savings. For example, the Conference endorsed the rapid implementation of the Case Manage-ment/Electronic Case Files system, which has made staffing efficien-cies possible and even affected the size of clerk intake areas and records storage.

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Cost Containment continued from page 3

Judge W. Royal Furgeson (W.D. Tex.)

Judge Thomas I. Vanaskie (M.D. Pa.)

The Third Branch n October 2007

Putting the Strategy Together In FY 2004, the Judiciary’s fi nal appropriations

were insuffi cient to support onboard court staff, and the courts subsequently suffered reductions in personnel nationwide. Obviously, policy and opera-tional changes would be needed for the Judiciary to maintain staffi ng and live within its budget in the future.

As a member of the Judicial Conference’s Budget Committee for more than a decade and chair of its Economy Subcommittee for the last four years, Judge Robert C. Broomfi eld (D. Ariz.) acknowledged that some Conference committees were more active in containing costs than others.

“Over time it became apparent that with the funding increases Congress was giving us—or, more accurately, not giving us—there was going to be a substantial defi cit in the long term,” said Broomfi eld. “It was at that time the Chief Justice decided he needed to ask the Executive Committee to become involved in the effort.”

“We knew we needed to look at our overall spending requirements from a Judiciary-wide perspective rather than on a piecemeal basis and make an effort to cut them. I mean a serious effort,” said Judge Carolyn Dineen King (5th Cir.), who chaired the Executive Committee at that time. “But the Executive Committee didn’t have the authority to charge an ad hoc group of judges with the responsi-bility to develop an integrated strategy,” she said. “So we put together a summary of the relevant information and went to see Chief Justice Rehnquist. I went through the numbers with him; I don’t think it took more than 15 minutes to lay it all out. And he looked at me and said, ‘Well, why can’t you do this?’

He gave the Executive Committee the authority and we gave the Conference committees with budget responsibility about four months to identify the factors that were driving costs and what could be done to control them or cut them. We also asked chief judges and court unit executives how they thought we could control costs.”

“We wanted the cuts to be the committees’ ideas—not the Executive Committee’s and not the AO staff’s ideas,” King said. “We believed that the people who needed to be making the decisions about the cuts were the people on the committees with budget respon-sibility. I was extremely impressed with the overall sense of willingness on the part of judges to do what was asked.”

By the September 2004 meeting, the Judicial Confer-ence was ready to consider the Executive Committee’s comprehensive strategy for cost containment and a number of sweeping cost-containment measures recom-mended by its committees, even as Judiciary leaders

continued to work to secure necessary funding from Congress. “I remember sitting next to Chief Justice Rehnquist at the meeting,” King said,

“and I didn’t know what was going to happen. Amazingly, the cost-containment strategy was unanimously approved. The Chief Justice turned to me and said, ‘Could you ever have expected that? Congratulations.’ And that was that. We had all of the basic components in place.”

Although IT is only about 6 percent of the total Salaries and Expenses account, cost pressures are substantial due to constant demands for more advanced technologies. In 2004, a key cost driver was the delivery of many national applica-tions by installing them on servers in every court location. Improve-ments in the national data commu-nications network have allowed the consolidation of servers, which is already saving money. Running the Jury Management System (JMS) on the same server with CM/ECF has produced a savings of $2 million in the fi rst year.

“Servers are expensive pieces of equipment,” said Vanaskie. “In the case of JMS, you were elimi-nating 94 servers and their cyclical replacement. And we’ve also seen that with PACTS, the case manage-ment systems used in probation and pretrial services offi ces. All of the probation and pretrial services offi ces in the nation now are running their PACTS systems on consolidated servers, with a projected savings in the same magnitude as JMS.”

A signifi cant savings also is expected from the consolidation of the servers for the Judiciary’s accounting system, FAS4T.

“I think we have to recognize that we’re investing when we spend on technology,” Vanaskie said. “It’s intended to have a positive impact on how work is processed.”

Program Modifi cations Produce SavingsProbation and pretrial services: Less costly drug-testing method-ologies and treatment services are being pursued, along with ways to improve program evaluation data. Co-payments may be required from defendants and offenders who have the ability to pay for services.

Prior to the cost-containment effort, law enforcement-related costs were

5See Cost Containment on page 6

ideas—not the Executive Committee’s and not the AO ideas—not the Executive Committee’s and not the AO staff’s ideas,” King said. “We believed that the people staff’s ideas,” King said. “We believed that the people who needed to be making the decisions about the cuts who needed to be making the decisions about the cuts were the people on the committees with budget respon-were the people on the committees with budget respon-sibility. I was extremely impressed with the overall sense sibility. I was extremely impressed with the overall sense of willingness on the part of judges to do what was of willingness on the part of judges to do what was asked.” asked.”

ence was ready to consider the Executive Committee’s ence was ready to consider the Executive Committee’s comprehensive strategy for cost containment and a comprehensive strategy for cost containment and a number of sweeping cost-containment measures recom-number of sweeping cost-containment measures recom-Judge Robert C.

Broomfi eld (D. Ariz.)

Judge Carolyn Dineen King (5th Cir.)Judge Carolyn Dineen Judge Carolyn Dineen King (5th Cir.)King (5th Cir.)

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projected to increase 10 percent per year, reaching $130 million by 2009. With these cost-containment measures, in January 2007 it was estimated that law enforcement-related requirements will be $94 million in 2009.

Law Book Expenditures: Computer-assisted legal research is expanding and law book collections are being limited. In 2004, it was estimated that law books requirements would increase 19 percent to $45.6 million by 2009. With cost containment, law books requirements are now esti-mated to be $38.4 million in 2009.

Defender Services: Among the cost-containment initiatives underway is a pilot project to assess the extent to which case budgeting advice may help reduce appointed counsel costs in capital and non-capital high-cost cases. Economies in defense repre-sentation are being promoted by the adoption of policies in capital cases—one to reduce the compen-sation rate when a case ceases to be death-eligible and another to encourage more timely Justice Department decisions about whether to seek the death penalty. Estimates in 2004 indicated that defender services budget require-ments would rise 72 percent by 2009, reaching $1.1 billion. The January 2007 long-range budget estimate is $970 million in 2009, $130 million less than initially estimated.

Magistrates Judges System: The recommended number of new magistrate judges has been sharply reduced by the Judicial Conference Committee on the Administration of the Magistrate Judges System, and courts with lower workloads are urged not to fill vacant positions.

Court Security: Cost-containment efforts in the area of court secu-rity have saved approximately

Cost Containment continued from page 5 2007 AO Committee Award Recognizes TwoAllen Brown, Chief of

the Policy and Strategic Initiatives Office, Office of Human Resources; and Nick DiSabatino, Chief of the Probation and Pretrial Services Technology Division, Office of Probation and Pretrial Services, are the recipients of the 2007 Leonidas Ralph Mecham Award for Exemplary Service to the Courts. The award recognizes indi-vidual Administrative Office staff for significant accomplishments that have improved court administration, internal controls, program effec-tiveness, communica-tions, or efficiency in the courts or the AO.

Judge Roger L. Gregory, chair of the Judicial Conference Committee on the Administrative Office, presented the awards.

Brown was selected for his efforts in designing and coor-dinating the Court Compensa-tion Study. The study examined compensation and classification policies for 27,200 employees across the court system, and involved nearly 600 judges and employees, along with the Court Compensation Study Working Group and the Judicial Resources Committee. This extensive effort has resulted in recommenda-tions to the Judicial Conference that have the potential to achieve a cost savings of approximately $330 million between 2009 and 2017.

Judge W. Royal Furgeson, Chair of the Judicial Resources Committee, wrote that, without Brown’s leadership, “the study would not have been completed so timely nor would the resulting

recommendations have been unani-mously accepted by the Working Group.”

DiSabatino’s nomination for the 2007 award was endorsed by 86 chief pretrial services officers. Several wrote to say, “We would not be where we are as a system without his vision and leadership;” “He has guided extraordinary advances in the Judiciary’s automation programs”; and “The IT infrastruc-ture improved almost overnight after Nick was appointed.”

DiSabatino was instrumental in the enhancement of the national Probation/Pretrial Services Auto-mated Case Tracking System (PACTS), which has saved the courts hundreds of thousands of dollars in operating and maintenance costs by warehousing data in one loca-tion. He also improved communi-cation by establishing an Informa-tion Technology Working Group, which brings together probation and pretrial services officers from around the country to develop inno-vative strategies to accomplish the work of the probation and pretrial services offices.

See Cost Containment on page 9

The 2007 award winners, Nick DiSabatino (photo left) and Allen Brown (photo right) with AO Committee chair Judge Roger L. Gregory (4th Cir.).

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The U.S. Court of Appeals for the Federal Circuit–Could Rising Appeals Swamp the Court?

The U.S. Court of Appeals for the Federal Circuit is, in many ways, thriving. It has a full complement of 12 judges in regular active service and four active senior judges, all of whom are writing more opinions than ever before. And they have reduced their backlog of argued cases.

But a cloud threatens on the horizon.

A perfect storm of cases is building in certain courts and federal administrative boards whose decisions can be appealed to the Federal Circuit. In fiscal year 2006, filings in the Federal Circuit grew to the highest level since 2002, with increases in filings reported from eight of eleven sources of appeals. One of those sources is the U.S. Court of Appeals for Veterans Claims. Last year, the number of appeals to the Federal Circuit from that court increased 90 percent over the previous year.

This surge of veterans’ appeals stems from a substantial rise in the lower court’s own caseload. As of June 2007, the Court of Appeals for Veterans Claims received more filings than in any other two-quarter period in its 19-year history.

“My six fellow judges, five retired recall-eligible judges, and I are deciding about 300 appeals a month,” said Chief Judge William P. Greene, Jr., of the Court of Appeals for Veterans Claims. Cases come to his court from the Board of Veterans’ Appeals, which last year decided nearly 40,000 cases. Denials of bene-fits by the Board in 2006 totaled more than 18,000, nearly twice the number reported in 2004. “We estimate that our court receives about 10 percent of the total cases reviewed by the Board,” Greene said.

Most appeals to the Veterans Court are not related to current

military conflicts. In fact, Greene says appeals are largely from deci-sions on VA claims by veterans of World War II, the Korean conflict and the Vietnam War. Once claims from current conflicts move into the system, he said, “The potential number of cases coming to the court could be astronomical.”

According to Chief Judge Paul R. Michel of the Court of Appeals for the Federal Circuit, veterans’ cases are now the third largest category of cases handled by his court—with patent cases in first place and government personnel cases in second place. He expects the number of veterans’ cases to increase sharply in the next few years. And, although recent decisions in several lead cases each led to the adjudication of dozens of pending veterans’ appeals, Michel doesn’t believe that the bulk of new cases will be so easily resolved.

“There are no broad rules to cover most of the appeals that are working their way to our court. The pros-pect is that they will require indi-vidual, case-by-case adjudication. They could, in fact, swamp our court before year’s end.”

And he anticipates another increase in the Federal Circuit’s case-load will come in approximately two years when claims from military members who served in either Iraq or Afghanistan arrive.

“Unlike our other cases, our court’s review in veterans’ cases is only on the interpretation of statutes or regulations. Some appeals will be dismissed because they raise factual issues. But the percentage is impos-sible to predict,” said Michel.

The Federal Circuit has a new mediation program to deal with some portion of these and other cases. The program is mandatory

and rigorous. Two full-time media-tors are assisted by 15 trained, pro bono mediator/attorneys. Michel credits the program with helping to maintain the speed and quality of decisions in the face of increasingly complex and numerous cases.

The court is currently at full strength, which allows more three-judge panels to be scheduled each month. Since last September, visiting judges have also assisted each month and are scheduled through 2007 and 2008. According to Michel, the visiting judges like the experience they get, especially on the court’s many patent cases.

“These cases are very chal-lenging,” he says. “Our visiting judges learn the different dimensions of patent cases—which helps them with such cases when they return to their home courts.”

Michel’s main concern is the court’s continuing ability to decide increasing numbers of appeals in a timely manner with consis-tently high quality. “It doesn’t pay to panic—at least not yet,” he says wryly.

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

CONTRIBUTORDick Carelli

PRODUCTIONLinda Stanton

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of October 1, 2007

Courts of Appeals

Vacancies 16 Nominees 10

District Courts

Vacancies 32 Nominees 14

Courts with“Judicial Emergencies” 18

For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.

Appointed: William L. Osteen, Jr., as U.S. District Judge, U.S. District Court for the Middle District of North Carolina, September 19.

Appointed: Martin K. Reidinger, as U.S. District Judge, U.S. District Court for the Western District of North Carolina, September 17.

Appointed: Janis Lynn Sammartino, as U.S. District Judge, U.S. District Court for the Southern District of California, September 21.

Appointed: Craig A. Gargotta, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Western District of Texas, October 1.

Elevated: U.S. District Judge Jennifer B. Coffman, to Chief Judge, U.S. District Court for the Eastern District of Kentucky, succeeding U.S. District Judge Joseph M. Hood, October 15.

Elevated: U.S. District Judge David R. Herndon to Chief Judge, U.S. District Court for the Southern District of Illinois, succeeding U.S. District Judge G. Patrick Murphy, October 3.

Senior Status: U.S. District Judge Edward R. Korman, U.S. District Court for the Eastern District of New York, October 25.

Senior Status: U.S. District Judge Stephen M. McNamee, U.S. District Court for the District of Arizona, October 1.

Senior Status: U.S. District Judge Joseph M. Hood, U.S. District Court for the Eastern District of Kentucky, October 14.

Retired: U.S. Senior District Judge William L. Osteen, Sr., U.S. District Court for the Middle District of North Carolina, September 14.

Retired: U.S. Magistrate Judge Charles B. Smith, United States District Court for the Eastern District of Pennsylvania, September 30.

Retired: U.S. Bankruptcy Judge Jo Ann Stevenson, U.S. Bankruptcy Court for the Western District of Michigan, October 2.

Deceased: U.S. Senior Court of Appeals Judge H. Emory Widener, Jr., U.S. Court of Appeals for the Fourth Circuit, September 19.

Deceased: U.S. Senior Judge Thomas A. Flannery, U.S. District Court for the District of Columbia, September 20.

Deceased: U.S. Senior Judge C. A. Muecke, U.S. District Court for the District of Arizona, September 21.

The Third Branch n October 2007

Government Appropriations bill in June and the Senate Appro-priations Committee approved its version a month later. By the end of September, the Judiciary’s 2008 funding measure had yet to make it to the Senate floor for a vote and because of the limited number of legislative days remaining, it is unlikely to be considered by the full Senate prior to conference with the House.

The Judiciary is not alone in entering the new fiscal year without

The Judiciary’s Pending FY 2008 Funding at a Glance

House Passed Level: $6.257 billion

Senate Appropriations Committee Mark: $6.337 billion

FY 2008 Full Requirements for the Judiciary: $6.372 billion

Public Comment Received on Draft Rules

The Judicial Conference Committee on Judicial Conduct and Disability held a public hearing in Brooklyn, New York on September 27, 2007, to take testimony on a set of 29 draft rules that, if adopted by the Judicial Conference, will apply to judicial conduct and disability proceedings in the federal courts. Judge Ralph K. Winter (above), chair of the Committee, presided at the hearing. Matters covered by the draft rules include complaint initiation and review, venue, confi-dentiality, publication, remedies, the conduct of investigations, and the rights and roles of par-ticipants in the process. The draft rules were posted to www.uscourts.gov, with a request for written comments from the public, for a 90-day period ending October 15, 2007. Before submitting the rules for Conference consideration, the Committee will revise them, taking the comments into account.

appropriations. Although the House has passed all 12 of its appropria-tions bills, the Senate has passed just four. In previous years, to move the process along, Congress often incor-porated all the remaining appro-priations bills into an omnibus bill, voting up or down on the entire package, and sending the bill to the President for approval. President Bush already has warned that he would not approve such an omnibus bill if it exceeds his FY 2008 budget request.

This is the first fiscal year the Judi-ciary has been included in a Finan-cial Services and General Govern-ment appropriations bill. Previ-ously, the federal courts have been funded in the Transportation, Trea-sury, Housing and Urban Develop-ment, the Judiciary, and Independent Agencies appropriations bill.

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2008 CR continued from page 1

Cost Containment continued from page 6

$20 million with a district-wide review of Federal Protective Service charges.

Long-Term VigilanceJudge Gibbons lauds the Judicial

Conference committees, court staff, and the AO for their efforts. “With cost containment we can take a look at what is important in terms of our function and our mission,” she said, “and make reasonable policy deci-sions that make sense for the Judi-ciary. Cost containment is a strategy that helps us plan for our future.”

And what does the future look like?

“Thanks to these efforts, the anticipated gap between estimated budget requirements and funding levels has shrunk,” said Administra-tive Office Director Jim Duff, “but continued vigilance will be neces-sary for the long term.”

“I think we’re going to be living in a very challenging budget envi-ronment,” Gibbons adds. “Without cost containment, we’re not going to be able to get enough money from Congress to meet our needs. Cost containment happens to be the right strategy—and the right thing to do. We have an obligation to be good stewards of the taxpayers’ money.”

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Pretrial Services Act Turns 25

“You are the gatekeepers at the front door of the halls of justice,” Chief Judge James G. Carr (N.D. Ohio) told the hundreds of federal pretrial services officers gathered from across the nation.

“How you do your job is going to affect . . . the willingness of the defen-dant, found guilty or not, incarcer-ated or not, to accept that the system is fair, compassionate and considerate of his rights and the welfare of all of us,” Carr said.

The officers met in Cleveland for two days in September to commemo-rate the 25-year anniversary of the Pretrial Services Act, the law Carr called “one of the most significant advances in simple justice that our system has ever witnessed.”

The first federal pretrial services officers were part of a pilot program authorized by the Speedy Trial Act of 1974, but the Pretrial Services Act that authorized these vital functions for judicial districts nationwide was not passed by Congress until the fall of 1982.

In the intervening quarter century, the core responsibilities of pretrial services officers have remained constant: Identifying and addressing the risks of a criminal defendant’s flight and the risks of danger to the community if that defendant is released pending trial.

“What you do for the Judiciary is at the very heart and soul of the judicial system,” Administrative Office Director James C. Duff told the pretrial services officers, “because you enhance the human touch, the human element in what the Judi-ciary does. Our judges, especially the magistrate judges, have really come to expect having verified information about defendants who appear before them, and having someone to super-vise those released pending trial.”

He added: “Pretrial services gives judges alternatives to simply locking people up or letting them out without supervision.”

In the year following the law’s enactment, 15,000 cases were handled by pretrial services officers. Today, pretrial services officers handle nearly 100,000 cases each year.

“We’re firmly established as a function in the federal judicial system,” said Carol Miyashiro, chief pretrial services officer for the District of Hawaii. “Pretrial services exist in all 94 judicial districts. Depending upon the district, pretrial services is administered by either a separate pretrial services office or as part of the probation office.”

Dan Ryan, retired Operations Branch chief of the AO’s old Federal Corrections and Supervision Divi-sion, remembers a time when the future of pretrial services was in doubt.

As he traveled from district to district to explain the then-new phenomenon, Ryan said he encoun-tered “a lot of healthy skepticism. There were some districts where I just couldn’t wait to get out of there. I mean, it was really a hostile audience in places,” he said.

Astounding efficiency helped win over the skeptics. In the 25 years since passage of the Pretrial Services Act, less than 2 percent of the 1.5 million cases handled have resulted in a released defendant’s failure to appear for trial or a released defen-dant being re-arrested.

“Thank you for your work,” Carr told the pretrial services officers. “We admire you greatly.”

He said judges depend on pretrial services officers “to give us your best judgment, not to try to anticipate my predilections as a judge, what you think I might want to do with this particular defendant, and certainly not to simply go along with and accept whatever the prosecutor or the defense attorney wants . . . Make the best inquiry you can, and give us the best advice you can.”

John Hughes, the AO’s assistant director for the Office of Probation and Pretrial Services, sees pretrial services officers as protectors of a fundamental tenet, the presumption of innocence.

“You have to be a change agent,” Hughes told the pretrial services officers in Cleveland. “Your job is not simply to process defendants and write reports.”

Administrative Office Director James C. Duff addressed pretrial services officers at the 25th anniversary of the Pretrial Service Act in Cleveland, Ohio in September. The meeting was attended by pretrial services officers from around the country.

The Third Branch n October 2007

11

“We make it messy, and we should make it messy. It’s a big deal to lock someone up,” he said. “Pretrial services officers should help the court so that pretrial detention is truly the last resort.”

The passage of time has seen enormous changes in the type of cases, and the kind of defendants, encountered by pretrial services offi-cers. No longer are federal criminal defendants predominantly accused of “white collar” offenses. Most face charges linked to drugs and firearms.

“Our clientele has changed a lot since I started in the system 20 years ago,” said Greg Johnson, chief proba-tion officer for the Northern District of Ohio. His district has begun an outreach program aimed at people Johnson says “are predisposed to drug and firearm crimes.”

The Project Penalty Awareness program in Cleveland’s public schools explains the severe penalties such crimes can draw in the federal justice system. The program soon may be part of the social studies curriculum throughout Ohio’s public schools.

“I think pretrial officers need to be much more proactive and need to be looking at prevention,” Johnson said.

Technological advances—innova-tions such as electronic monitoring, global position satellites, and hand-held drug-testing devices—have proved cost-effective by adding to the available alternatives to pretrial detention.

“The changing face of technology does affect our core responsibili-ties, but technology does not replace those responsibilities,” Johnson said.

In helping commemorate the Pretrial Services Act’s silver anni-versary, AO Director Duff told the assembled officers, “Your services are more crucial today than they ever were, 25 years ago.”

Election Season Brings Reminder of Political Prohibitions

Ah, the election season. Candi-dates are stumping, party fund-raisers are soliciting, campaign posters are sprouting on lawns. Is it time to get out and campaign for your favorite candidate? The answer, for judges and most judicial employees, is no.

Partisan political activities are prohibited by Canon 7 of the Code of Conduct for U.S. Judges, and Canon 5 of the Code of Conduct for Judi-cial Employees. Under both codes, a judge or judiciary employee should not act as a leader or hold any office in a political organization; make speeches for a political organi-zation or candidate, or publicly endorse or oppose a partisan political organi-zation or candi-date. Neither should they solicit funds for or make a contribu-tion to a polit-ical organiza-tion or candi-date or event.

The prohibition includes displaying a campaign picture, sign, sticker, badge or button for a partisan political candidate or organization or acting as a recorder, watcher, challenger, or similar officer at the polls in a partisan political election. Judiciary employees also may not authorize use of their name as an endorsement; initiate or circulate a nominating petition for a candi-date in a partisan political election; or participate in a partisan political convention, caucus, rally, or fund-raising activity.

Judges are further prohibited from attending political gatherings or purchasing tickets for political

party dinners or other functions and should resign their judicial office when he or she becomes a candidate either in a primary or in a general election for any office.

Nonpartisan political activities also are prohibited for members of a judge’s personal staff and certain court unit heads. For them, the prohibitions concerning partisan political activities generally apply to nonpartisan political activities as well.

Of course, all judicial employees may register and vote in any primary or general election, and they may register as a member of a polit-

ical party. Employees are also entitled to voice,

although privately, their opinions

regarding a polit-ical candidate or party. Participa-tion is allowed in the nonpo-litical activities

of a civic, chari-table, religious,

professional, educational, cultural,

avocational, social, fraternal, or recreational

organization. Judicial employees who are not

covered by the Code of Conduct for Judicial Employees should consult the codes and ethical standards appli-cable to them for guidance on partic-ipation in political activities. Ques-tions concerning political activity may be directed to the AO’s Office of General Counsel or the Judicial Conference Committee on Codes of Conduct.

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JUDICIAL CONFERENCE OF THE UNITED STATES, September 18, 2007

Seated (LtoR): Chief Judge Michael Boudin (1st Cir.); Chief Judge Dennis Jacobs (2nd Cir.); Chief Judge Anthony J. Scirica (3rd Cir.); Chief Judge Karen J. Williams (4th Cir.); Chief Justice John G. Roberts, Jr.; Chief Judge Edith Hollan Jones (5th Cir.); Chief Judge Danny J. Boggs (6th Cir.); Chief Judge Frank H. Easterbrook (7th Cir.); Chief Judge James B. Loken (8th Cir.) Standing, Second Row (LtoR): Judge Ernest C. Torres (D. RI); Chief Judge Kimba M. Wood (S.D. NY); Chief Judge Garrett E. Brown, Jr. (D. NJ); Chief Judge Douglas H. Ginsburg ( D.C. Cir.); Chief Judge Paul R. Michel (Fed. Cir.); Chief Judge Mary M. Schroeder (9th Cir.); Chief Judge Deanell R. Tacha (10th Cir.); Chief Judge J. L. Edmondson (11th Cir.); Judge David C. Norton (D. SC); and Chief Judge Glen H. Davidson, N.D. Miss.). Standing, Third Row (LtoR): Judge Charles R. Simpson III (W.D. Ky.); Judge Wayne R. Andersen (N.D. Ill.); Judge Charles R. Breyer (N.D. Cal.); Judge Alan B. Johnson (D. Wyo.); Judge Lawrence L. Piersol (D. SD); Chief Judge Robert L. Hinkle (N.D. Fla.); Chief Judge Thomas F. Hogan, (D. DC); Chief Judge Jane A. Restani, (Int’l Trade); and James C. Duff, Director, AOUSC.