May 2007

 

Interview: Interview with Judge John R. Tunheim

Judge John R. Tunheim, of the U. S. Dis- trict Court for the District of Minnesota, has served as chair of the Judicial Conference Committee on Court Administration and Case Management since October 2005

Q:  What is the jurisdiction of the Committee on Court Administration and Case Management (CACM)?

A:  The Court Administration and Case Management Committee, as it name implies, has one of the broadest jurisdictional grants of any Judicial Conference Committee. As a result, it has been involved in governance issues relating to court administration, such as the composition of circuit councils, the combining of functions between district and bankruptcy courts clerks’ offices and the role of the chief judge in overseeing court operations. The Committee has jurisdiction over a number of court operational areas such as clerks’ offices, Alternative Dispute Resolution, attorney admission and discipline, miscellaneous and filing fees, law books and libraries, records management, places of holding court, court reporting and interpreting, and juries. The Committee has been active in all these areas and in recent years has reviewed and increased miscellaneous fees in a number of areas, trimmed the budget for law books, promoted and encouraged the use of electronic records, established a privacy policy for remote access to electronic records, and recommended legislation to allow circuits and districts where emergencies arise to hold court in other circuits or districts when necessary. In the area of case management, the Committee has supported the increased use of Case Management/Electronic Case Files system (CM/ECF), considered the issue of courtroom usage, and overseen the Civil Justice Reporting Act statistical reporting program and expanded it to include bankruptcy and Social Security appeals.

Because the Committee’s jurisdiction encompasses so many areas, of necessity, the Committee also has worked closely with a number of other Conference committees on a number of these issues.

I have very much enjoyed working on the Committee and now serving as chair. CACM has an exceptional staff and really outstanding Committee members.

Q: The operation of grand and petit juries comes under CACM’s jurisdiction. Is your Committee considering any initiatives to promote jury service in the courts?

A: Yes, the Committee has recently been asked by the Executive Committee to look at ways to make jury service less burdensome and more cost effective. Two of the issues suggested by the Executive Committee are: whether measures
can be taken to relieve the economic hardships experienced by some jurors and other methods for summoning jurors such as the “one day, one trial” procedure used in some federal courts, which would lessen the uncertainty and service time for jurors.

Our jury subcommittee will be considering theses issues as well as whether more can be done to ensure that jury service will not cause employment problems for jurors.

Jury service has always been considered an important civic duty involving some sacrifice on the part of those who serve, but it doesn't mean that we shouldn't be looking for ways to lessen its burden. Some state courts have established funds to assist jurors serving on long trials and have provided more employment protection for jurors by increasing the penalties for employers who take punitive measures against juror employees. The subcommittee will be examining these and other options to improve jury service.

Q: Identity theft is a real concern. How does the federal Judiciary address privacy and security concerns relating to the electronic filing of document and the public availability of documents filed electronically?

A: The Committee has worked on privacy-related issues for over five years. As the courts have moved into the realm of electronic case files, the Committee has worked to ensure that there is a viable policy in place to balance both the public right to access court case files and the need to protect privacy interests contained within those case files.

First adopted in 2001, the Judicial Conference policy on privacy and access to electronic case files allowed remote electronic public access to documents in case files as long as certain pieces of personal information are redacted. That information is the same information typically used in identity theft, such as Social Security numbers, financial account numbers, names of minor children, and dates of birth. One type of case was determined to contain too much sensitive information to be made available to the public electronically: Social Security benefits cases. Those case files are only available at the courthouse.

The Conference originally deferred granting electronic public access to criminal case files until a study was conducted to ensure no harm would be caused by providing access. In 2003, after receiving study results that showed no harm from the public access, the Conference approved a policy to allow access to documents filed in criminal case files, with one additional piece of data to be redacted: home addresses. Appellate cases are treated as they are in the lower court level.

The policy has worked quite well, and as a result, the Rules Committee has incorporated many of its provisions into new Federal Rules of Procedure, scheduled to go into effect (absent Congressional action) on December 1, 2007.

Q: Will there come a day when a member of the public can find transcripts of all trial court proceedings online?

A: The Committee has devoted significant time and effort to making transcripts of court proceedings available to the public through the PACER system. It is especially critical to provide online access to transcripts now that the courts of appeals are migrating to CM/ECF. Briefs with hyperlinked citations to transcripts—instant access to the record—will be an amazing efficiency once transcripts are filed online.

I have found that nearly everyone “has a dog in this hunt,” and as a result, it has been a challenge to reach an agreement acceptable to all. The Committee is close to such an agreement, and I am now quite confident that we will soon have transcripts online.

Q: As the lingual diversity of our nation grows, are federal courts well situated to accommodate litigants who do not speak English and, if so, how is that accommodation provided?

A: The federal Judiciary has long been recognized as a leader in providing the best possible interpretation services for non-English speaking defendants in criminal cases, and as a model for certifying court interpreters in Spanish. However, the provision of these services, by statute, is limited to interpretation in cases initiated by the United States.

The recent census indicates a substantial increase in the percentage of the population who understand a language other than English and do not understand English "very well." The Committee believes that the Judiciary must recognize the changing nature of the population and respond by expanding our efforts to assist those with limited English proficiency (LEP) in understanding the courts and the justice system. We see it as an access to justice issue that needs to be addressed, just as we did when the Committee recommended measures in 1996 to assist persons with communications disabilities due to speech or hearing impairment.

A number of federal courts have already undertaken initiatives to translate court forms into Spanish and other languages. At the request of the Committee, the Administrative Office (AO) has gathered information on court forms that have been translated and is making them available for use by all courts. In addition, a subcommittee will be working with court personnel and the AO in identifying the forms that will provide the most assistance to those with LEP and developing uniform translated versions of these forms. Of course, all official forms will still be in English, but the Committee believes that translation of these forms will greatly help the courts in their efforts to address the need for this type of assistance and improve access to justice.

Q: In March, the Conference adopted CACM’s recommendation on a pilot project involving digital audio recordings of court proceedings. Would you tell us about this pilot project?

A: At its meeting last December, the Committee endorsed a pilot project to link audio files of court hearings to the docket in CM/ECF, and to make those audio files available through PACER. Pursuant to our recommendation, the Judicial Conference endorsed a six-to-12 month pilot project in which several courts will make digital audio recordings of courtroom proceedings publicly available online through PACER.

Since the pilot project has been announced, a fair number of courts have expressed interest in participating, and selection criteria for participation has been established. That criteria includes a requirement that at least one Article III judge (as opposed to magistrate judges only) participate in the pilot for district courts, and that the judge already be using digital audio recording as the official means of taking the record.

The pilot is limited to six courts—three bankruptcy and three district—in order for the AO to provide and control the technical architecture needed. These include the bankruptcy courts for the Eastern District of North Carolina, the District of Maine, and the Northern District of Alabama, and the district courts in the Eastern District of Pennsylvania and the District of Nebraska. The pilot will begin with these five courts. Should another district court volunteer and meet the criteria, it will be added.

A method for providing the audio file through PACER, which was developed by the Eastern District of North Carolina Bankruptcy Court, will be used for the pilot. Staff from the bankruptcy court and the AO’s CM/ECF District Court Development Team are building the additional pieces of necessary software. A chambers module will interface with a digital audio log sheet that will permit a judge to select which hearing(s) he/she would like to make available via PACER at the end of each day. The digital audio files from the selected hearings will be automatically copied from the court’s digital audio system to the CM/ECF server and, using software, a docket entry will be made in the court’s CM/ECF system with the audio file attached. The AO will provide model procedures that the presiding judge may wish to use for informing parties of the potential of having the audio recording of the hearing available via PACER.

The pilot project is scheduled to begin in all five courts on July 1, 2007. At its June 2008 meeting, the Committee will be provided with an evaluation of the pilot

Q: Last year, the Federal Judicial Center (FJC) began a courtroom usage study at the request of your committee. Why was it begun and when do you expect a report?

A: The courtroom usage study is one of the Committee’s largest and most important projects. Members of Congress who provide the funding for courthouse construction projects have made very clear that appropriations will slow or stop until the Judiciary conducts a study demonstrating how our courtrooms are being used today. Lacking any real data, the Committee asked the FJC to design and implement a careful study which captures kind of detailed information the Committee needs to analyze whether changes need to be made to traditional courtroom assignment policies and what impact such changes would have on how judges do their work.

The data collection phase of the study will be completed in July. Twenty-six randomly selected courts, large, medium, and small, are participating and staff are busy recording every scheduled and actual courtroom event. The study has resulted in a tremendous amount of data that will take the FJC time to analyze. The Committee has been very impressed both with the incredible detail of the study and how well it has been implemented. FJC staff and local study court staffs have done terrific work.

The Committee expects to receive an interim report from the FJC by this fall and hopes to work with other committees and be ready to report findings to the Judicial Conference and Congress in 2008.