Vol. 39, Number 8 — August 2007

Coming this Fall

Members of Congress were in their home districts during August, but they return after Labor Day, hopefully to take up a number of legislative items that could have an impact on the federal courts.

Bail Bond Fairness Act of 2007

The House passed H.R. 2286, the Bail Bond Fairness Act of 2007 in June. The bill would amend 18 U.S.C. and the Federal Rules of Criminal Procedure to limit judges’ authority to declare bail bonds forfeited except “where the defendant actually fails to appear physically before the court as ordered” and not where the defendant violates some other collateral condition of release.

According to bill language, judges now order bonds forfeited in cases in which the defendant fails to comply with some collateral condition of release. As a result, bail agents must guarantee the defendants’ general good behavior, not simply their physical presence. This has caused the industry to adhere to strict underwriting guidelines, requiring full collateral in most cases, and, according to the industry, depriving some defendants of the bail bond option. The Judicial Conference opposes this legislation, and Magistrate Judge Tommy E. Miller (E.D. Va.) testified in June 2007 that its passage would likely increase the number of persons incarcerated pending trial.

The Court Security Improvement Act of 2007

The House passed H.R. 660, the Court Security Improvement Act of 2007, in mid-July. The Senate passed its own version, S. 378, in April. Both bills contain provisions supported by the Judicial Conference, including authorization for the Conference to redact sensitive information from judges’ financial disclosure forms, new penalties for the malicious filing of fictitious liens against federal judges or law enforcement officers, and a requirement that the U.S. Marshals Service consult with the Conference on matters of court security. Several differences between the two bills still must be worked out in conference. For example, the House bill amends the REAL ID Act of 2005 to allow federal judges to use their courthouse address instead of their home address when applying for such state-issued documentation as driver’s licenses. The Senate bill does not address this security concern.

Judgeships

In March 2007, the Judicial Conference asked Congress to create 67 new federal judgeships—15 for the courts of appeals and 52 for the district courts. The Conference also requested that Congress make permanent five temporary judgeships and extend one temporary judgeship by another five years.

No single bill has been introduced with all of the recommended judgeships.

S. 1327 was introduced in the Senate to address the Conference request for the addition of temporary judgeships in the Eastern District of California and the District of Nebraska, and the extension of temporary judgeships in the District of Hawaii, the District of Kansas, and the Northern District of Ohio.

S. 1192, the Federal Criminal Immigration Courts Act of 2007, would create eight permanent judgeships and two temporary judgeships: one temporary and four permanent judgeships in the District of Arizona; two permanent judgeships in the Southern District of Texas; one permanent and one temporary judgeship in the District of New Mexico; and one permanent judgeship in the Western District of Texas. Although S. 1192 does not include all of the judgeships recommended by the Judicial Conference, all the judgeships in the bill are supported by the Conference. For a list of the judgeships recommended by the Judicial Conference, visit www.uscourts.gov/judges/2007recommendations.html.

Federal Judiciary Salary Restoration Act of 2007

S. 1638, the Federal Judiciary Salary Restoration Act of 2007, was introduced in June 2007 by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and now has eight co-sponsors from both parties, including Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY). S. 1638 would adjust the annual salary of district court judges to $247,800, the salaries of courts of appeals judges to $262,700, and the salaries of Supreme Court justices and the Chief Justice, respectively, to $304,500 and $318,200. A similar salary restoration bill is expected to be introduced in the House when Congress returns after the August recess.

Support for pay restoration for judges has been expressed by the American Bar Association, law school deans, and many legal and professional associations, including organizations as diverse as the Sierra Club, the AFL-CIO, Yahoo, Inc., and the U.S. Chamber of Commerce. Over 60 corporate counsels, among others, support a substantial salary restoration for federal judges.

Patent Reform Act of 2007

Both the House and Senate Judiciary Committees reported out their versions of the Patent Reform Act of 2007 in mid-July. The Judicial Conference has not taken a position on patent reform legislation and does not have a position applicable to the pending proposals.

Current patent reform legislation would largely affect administrative proceedings within the U.S. Patent and Trademark Office; however, certain provisions of the related bills, H.R. 1908 and S. 1145, would affect the federal courts. Interlocutory appeals of claim construction decisions to the U.S. Court of Appeals for the Federal Circuit would be possible at the discretion of the district judge. The venue provision in 28 U.S.C. § 1400(b) would be replaced with new criteria for determining where a patent case may be brought, including a special provision for suits by universities. In addition, provisions would be amended that govern the award of damages and determinations of willful infringement in federal courts. Finally, the House bill would require the Administrative Office, working with the Federal Judicial Center, to conduct a study on the use of special masters in patent litigation.

Sunshine in the Courtroom Act of 2007

Bills have been introduced in both the House and Senate that would allow cameras in the Supreme Court, courts of appeals and district courts at the discretion of the presiding judges. It is anticipated that the House Judiciary Committee will hold a hearing on its bill, H.R. 2128, some time this fall.

H.R. 2128 is identical to S. 352, which was introduced in the Senate. Both would permit the “photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides.” Televising of jurors would not be allowed, and non-party witnesses could ask that their faces and voices be obscured. The bills provide that the Judicial Conference may promulgate advisory guidelines on the management and administration of photographing, recording, broadcasting or televising. Authority for cameras in district courts would sunset three years after enactment of the legislation.