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June 1998

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


Finding the Balance in Federal-State Jurisdiction: An Interview with Judge Stephen H. Anderson

Judge Stephen H. Anderson was appointed to the U.S. Court of Appeals for the Tenth Circuit in 1985. A member of the Committee on Federal-State Jurisdiction since 1993, he steps down as chair of the committee in the fall after a three-year term.

Q: What are the responsibilities of the Committee on Federal-State Jurisdiction?

A: Broadly speaking, the committee reviews congressional initiatives affecting the jurisdiction of the federal courts and the allocation of jurisdiction between the federal and state courts. Additionally, the committee is charged by the Conference to serve as the liaison to the state courts. To enable us to perform this unique role effectively, the Chief Justice and the Judicial Conference authorized four state supreme court chief justices to serve among our 15 members. In addition, the committee works closely with the Conference of Chief Justices (CCJ), the policy-making body for the state courts, and the National Center for State Courts, its support organization.

Q: You've chaired the committee since 1995. In that time, what have been some of the significant issues with which your committee has dealt?

A: It is impossible in this interview to list all of the important issues that the Federal-State Jurisdiction Committee has addressed over the past few years. At any given time, we are following up to 20 bills, including both draft proposals and bills that have been introduced. Some of the more significant topics the committee has studied recently include property rights legislation, proposals to limit the remedial powers of the federal courts, prison litigation amendments, proposals to expand the jurisdiction of the Court of Federal Claims, mass tort litigation, and the constitutional structure of territorial courts. Also, many bills in Congress seek to alter the relationship between the states and the federal government. The committee studies such proposals to determine whether the unique roles of both court systems have been recognized.

Q: How have federal-state relations evolved during your tenure?

A: The relations between the federal and state judiciaries always have been good and have never been better. This positive relationship developed long before my tenure as chair, and I have sought to enhance this association. For example, I instituted for every committee meeting a Report from the State Courts, during which the senior chief justice member presents to the committee an overview of significant issues facing the state courts. Also, I have continued the valuable tradition of attending the annual and mid-year meetings of the CCJ. I have been joined in representing the federal Judiciary by Judge Fred Motz, who was then a member of the committee, and also more recently by Chief Judge Henry Politz, who has been designated by the Executive Judge Stephen H. Anderson Committee as a liaison to the CCJ, as well as to our committee. I must add that our state-federal relationship is strong, in part, because of the harmonious relationship between staff of the National Center for State Courts and staff in the Office of Legislative Affairs of the Administrative Office. I continue to believe that joint educational programs and seminars are excellent tools to improve the understanding of the inter-relationship of such courts.

Q: How do the views of the Conference of Chief Justices compare to those of the Judicial Conference?

A: In recent years, the views of the two policy-making bodies have been similar on numerous occasions, such as in the areas of property rights legislation, victims' rights, and health care legislation. But such consistency, when it occurs, is not entirely coincidental. Instead, I believe that it is one of the positive by-products of the strong relationship we are fostering between the state and federal judiciaries. We have listened to each other's viewpoints and thus have been able to develop more fully our recommendations to the Conference. When mutual concerns emerge, this commonality enhances congressional receptivity to the views of the Judicial Conference, particularly when our view suggests that certain jurisdiction lies more appropriately in the state courts.

Q: How has the allocation of jurisdiction between federal and state courts shifted?

A: This allocation has been of central concern to the com-mittee. During the past 10 years, Congress has sought frequently to create federal court jurisdiction in areas traditionally exercised primarily by the state courts. This often occurs with respect to specific criminal activity and has led to many debates and state-federal conferences concerning federalization. But "federalizing" a cause of action also can be applied generally when Congress creates federal jurisdiction for traditionally state court civil actions. The Federal-State Jurisdiction Committee has studied numerous proposals that would shift litigation from the state courts to the federal courts. A guiding principle for us has been the view of the Judicial Conference as stated in the Long Range Plan for the Federal Courts. Congress should be encouraged to conserve the federal courts as a distinct judicial forum of limited jurisdiction. While certain criminal and civil actions occasionally may justify expansion of federal jurisdiction, such federalization effonts typically are driven by political and popular pressures that can be expected to continue. As a result, I think it will be important for the Judiciary tocontinue to encourage Congress to consider the unique role intended by the constitutional framers for the federal courts.

Q: As a representative of the Judicial Conference, you've testified before congressional com mittees a number of times on a variety of issues considered by your committee. Generally, how has Congress received the Conference views on legislation?

A: Very favorably. Whether I have testified in support or opposition to a bill, members of Congress have been receptive to the views of the Conference. A mutual respect exists between the legislative and judicial branches, and any opportunity to foster our communication is appreciated on both sides. While letters often are sent to congressional leaders sharing our views of the Conference, testifying before Congress is an excellent opportunity to engage in a give-and-take on the potential implications of legislation for the federal courts. It reminds me, in a way, of oral arguments and the chance to explain with conviction the decisions of the Conference. Being subject to a five-minute time limit also is a humbling reminder of the restrictions we as judges place on lawyers appearing before us. Before we move on, I would like to take this chance to compliment the outstanding work of the staff of the AO's Office of Legislative Affairs, under the fine leadership of Mike Blommer, and in particular the staff of our committee, Karen Kremer and Mark W. Braswell. Much of the informational sharing with Congress occurs at a staff level, and these effonts are ongoing and overwhelming. The Judiciary should be aware of the valuable and effective behind-the-scenes work that is done by the Administrative Office staff, under the careful direction of Leonidas Ralph Mecham.

Q: You also testified during the last congressional session on H.R. 1544, the Federal Agency Compliance Act. The bill has Conference support. Why?

A: Simply stated, the Conference supports this bill because it brings respect to the rule of law. This support was announced officially in the Long Range Plan for the Federal Courts, when the Conference approved a recommendation calling upon Congress to pass legislation that would generally prohibit agencies from adopting policies of non-acquiescence to controlling precedents of appellate courts. As an appellate judge, I have welcomed the opportunity to testify on the act and bring congressional attention to this issue. We were delighted that Representative George Gekas (R-PA) introduced this legislation and moved it successfully through the House of Representatives. Our committee staff now is providing assistance to the office of Senator Ben Nighthorse Campbell (R-CO), who has introduced a similar bill.

Q: As an out-going chair, what advice would you share with new committee chairs?

A: Act cautiously. I cannot think of any two words that could better describe what might serve as a dependable compass for others. So many issues come before the chair and the committee, many of which demand immediate attention. It is often tempting, for example, to oppose immediately a bill or a provision that seems to be an attack on the Judiciary. Calm study, however, leads to a reasoned comment that will help the Conference, and in turn Congress, to contemplate a bill's impact on the courts. As long as full debate is encouraged and seasoned advice is sought on an issue, I believe that committees can act with the degree of due process and careful deliberation that we have come to expect in our courtrooms.