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April 2009

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This article is in the news archives --- for current news go to the Third Branch News.


An Interview with Chief Justice Margaret H. Marshall, President of the Conference of Chief Justices

Margaret H. Marshall is the Chief Justice of the Supreme Judicial Court of Massachusetts. Appointed to her position in 1999, she is the first woman to serve as Chief Justice and the second woman appointed to serve as an Associate Justice. She became President of the Conference of Chief Justices in July 2008.

Q: In January 2009, the Conference of Chief Justices (CCJ) celebrated its 60th Anniversary. What is the primary role of the CCJ with respect to the state courts?

A: Over the past thirty or so years, largely as a result of nationwide court reform movements, local, county, and state courts have evolved into state judicial branches. In parallel with those developments, the CCJ has emerged as the most effective organization where the heads of the Third Branch of government in all fifty states, the District of Columbia, and five United States territories meet to share experiences, learn from each other, and work together to improve the administration of justice.

The overwhelming amount of judicial business in the United States takes place in state courts. For 2007, which is the most recent year for which I have comparative data, the total number of cases filed in all federal district and appellate courts, including the United States Supreme Court, not including bankruptcy cases, was 384,330. In state courts, the comparable number was 47.3 million cases, not including traffic offenses. In other words, tens of millions of Americans experience justice—or the lack thereof—in state courts.

In his 2008 Year End Report on the Federal Judiciary, Chief Justice John Roberts, Jr. wrote that it is particularly when the nation faces pressing economic problems that people turn to the courts. All state Chief Justices would concur. The judicial branch plays an essential role in our democracy at all times, none more so than during times of economic crisis. During the current crisis, we have seen a dramatic rise in a number of cases filed in state courts: mortgage foreclosures, domestic violence cases, cases of elder abuse, criminal cases, evictions, child support payment modifications—a wide array.

How does the CCJ respond? The CCJ provides the best and most efficient way for all state Chief Justices to learn from each other about how to meet the challenges of rising caseloads, budgets that are in free fall, staff positions that must be eliminated, and judicial vacancies left unfilled. Our states are very different. Our challenges are remarkably similar. Because of CCJ, each Chief Justice does not have to keep reinventing the same wheel. What one Chief Justice does successfully can be replicated by another.

One example: in the State of Ohio, Chief Justice Thomas Moyer recently established a separate court session for handling the great increase in mortgage foreclosure cases. That model was quickly followed by other Chief Justices. Another example: CCJ recently established a task force on elder abuse to provide guidance to Chief Justices on how to respond to the increase in those cases.

Many Chief Justices, I believe, think of our “day” work as managers, the chief executive officer as it were, of a branch of a state government. Our “night” work is adjudicative, with almost all of us carrying close to a full load of cases. CCJ is particularly helpful to Chief Justices in our “day” work: all of us want to be effective managers of our state judicial systems. Resources are scarce; we want to use them wisely. New challenges arise each day; we look to our counterparts for advice and guidance. Together we can, and do, develop policies of common interests, exchange information … and learn some of the skills not taught in law schools.

Immediately behind the CCJ, of course, stands the National Center for State Courts (NCSC). NCSC is a vibrant, living monument to Chief Justice Warren Burger and Chief Justice William Rehnquist, both of whom were remarkable in their commitment to ensuring the health of the state judiciaries. As your readers surely know, the Chief Justice is the Chief Justice of the United States, not the Chief Justice of the United States Supreme Court.

Q: Some CCJ members are members of the Judicial Conference Committee on Federal-State Jurisdiction and some serve on the Advisory Rules Committees. How does the interaction benefit state courts?

A: The interaction among federal and state judges has been extraordinarily helpful. Let me give you some examples.

With the advent of electronic discovery, problems with existing discovery rules quickly surfaced. While the Federal Rules Committee was formulating an appropriate rule for electronic discovery in the federal courts, the CCJ established its own working group on electronic discovery. Justice Nathan L. Hecht of the Texas Supreme Court served at the time on the federal committee. He was immensely helpful to CCJ as we formulated our guidelines, helping to ensure that (as far as possible) the federal and state protocols were compatible. Given the wide range of litigation in the states courts, CCJ needed to fashion electronic discovery guidelines in an appropriately careful way. I chaired the committee that proposed the guidelines and I recall several telephone conferences in which Justice Hecht participated, most helpfully apprising us of the federal perspective. That kind of federal-state exchange occurs repeatedly.

Another example: three members of the United States Judicial Conference have regularly attended and addressed our CCJ meetings. At present Judge Janet Hall, from the District of Connecticut, Judge Lawrence Piersol from the District of South Dakota, and Judge Ronald Lee Gilman from the Sixth Circuit Court of Appeals participate as the Conference’s representatives. The formal, as well as informal, conversations with the federal representatives that take place at our meetings has sparked lively debate and always insightful exchanges.

Q: When did this interaction between the CCJ and the federal courts begin?

A: To my knowledge—and when I learned this, I found it most interesting—formal interaction began only recently, in 1990. That year the Judicial Conference and the CCJ met for the first time to address problems common to the two court systems. That initial meeting led to the establishment of the National Judicial Council on State and Federal Courts, which met regularly until 1997. The National Council was abandoned that year, but not because it was ineffective. To the contrary. state judicial councils of federal and state judges had been established at the local level, and were working well. In Massachusetts, we do not have a formal state-federal judicial council, but we do have regular exchanges among state and federal trial judges and between the Supreme Judicial Court and the First Circuit. We confer regularly.

There are many areas where our interests converge. Guidelines for electronic filings are one such area: we want to make sure our filing requirements are compatible with the requirements of the federal courts. Another is courthouse construction standards. The work of GSA has been most helpful in that regard, with NCSC developing guidelines for state courthouse construction.

Security in courthouses is another example. Trial judges in state courts are particularly vulnerable because they often deal with cases that raise deeply emotional issues for the parties, for example, child custody disputes, evictions, or domestic violence cases. Advice from our federal counterparts has been beneficial in determining adequate levels of courthouse security.

Q: In recent years, the state courts, like the federal Judiciary, have expressed views on particular legislative proposals that have potential to affect the administration of justice. How does the CCJ decide when to comment on legislative proposals, and do you believe that the resolutions of the state chief justices make a difference in the legislative process?

A: When it sets policy, the CCJ does so in broad terms. Some of the factors we consider in setting Conference policy include: does an issue affect directly or indirectly the volume or the complexity of the workload of state courts? These are issues on which we work closely with COSCA, the Conference of State Court Administrators. A joint CCJ/COSCA Government Affairs Committee tracks national policies that will affect state courts as they are being developed in Congress. Federal legislation may from time to time have a significant impact on the work of state courts. An example is the issue of congressionally mandated reporting requirements by state courts. Congress may implement a reporting requirement, not recognizing that not all state courts have the technological capability to comply, or to comply easily. We work with staff on Capitol Hill, and sometimes with the Federal Judicial Center, to coordinate and inform Congress of the views of state courts. Bringing a national, CCJ perspective to Congressional policymakers is more efficient than having each state do so. Another example: NCSC and CCJ supported legislation to permit the IRS to deduct payments owed on child support from tax rebates. The enforcement of child support orders in our highly mobile society is extraordinarily challenging for the state courts. Federal legislation to facilitate that enforcement benefits everyone. CCJ, COSCA, and NCSC worked together to advance that interest.

Q: We constantly hear that most citizens know little if anything about their courts. One study showed that only one third of Americans could correctly name the three branches of government. How would you describe the judges’ role in addressing the public’s understanding and perception of the courts?

A: You have touched on a passion of mine, civic education, especially education concerning the role of the Third Branch in our democracy. Here again, the CCJ has been a wonderful resource. Many Chief Justices are leading the way with innovative and exciting civic education programs in their states. We all exchange ideas, “stealing” the best from each other.

In Massachusetts, the John Adams Courthouse, home of our appellate courts, has become a center for all kinds of civic education. Every Monday morning, one of the first items that I see in my e-mail is a listing of all of the events that have been scheduled for the coming week. We have theater groups performing reenactments of great trials, bar associations holding monthly meetings, docent tours of our beautifully restored building, moot courts, lectures, exhibitions—people come to the John Adams Courthouse all day, every day, to learn about government and the role of our courts in the democratic process. John Adams would approve, I am confident.

The CCJ and NCSC have been helpful in other ways, assisting many state supreme courts to develop web pages, facilitating more effective communication with the bar and the public. Many state courts of last resort now make their oral arguments available on the web. Massachusetts was one of the first to do so, a decision widely applauded by practitioners, the public, scholars, and the media. In many states, including Massachusetts, our appellate courts are going “on the road,” so to speak, holding sessions in law schools or local trial courts. All of these programs help foster the public’s understanding of the judicial system. CCJ is the place to examine how these programs may have worked, or not, in another state.

Q: How has your life experience influenced your advocacy of judicial independence?

A: I was born, raised, and educated in South Africa under the system of apartheid, a system of racial supremacy, where the rule of law had no meaning. Many unjust laws were enacted by parliament, laws which judges had to uphold. I saw and experienced firsthand what it felt like to be in a country where one could be arrested or detained, could “disappear,” without access to a lawyer. I saw people forced off their land or out of their homes upon order of the government with no recourse to the courts. Under apartheid, the vast majority of South Africans, black South Africans, could not travel in their own country, could not visit a friend or relative in a different state. Apartheid was a draconian system. Having grown up under that system, I bring to my work an appreciation of, and wonder at, the American constitutional system. I sometimes remind my native born friends that justice is like oxygen: while you are breathing it, you barely notice it. Cut off the supply, and you will notice the loss more quickly than you realize. Strengthening state courts, especially during a time of economic crises, will ensure that the oxygen keeps flowing smoothly.