Case in Point 2015-2016

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Annual Report2014

3 · The Magazine of The National Judicial College · Case in Point 2015-2016

10 Dark Money and the Future of Judicial Elections

14 Drones: The Latest Threat to the Right of Privacy

18 Jody Arias and the Cost of Seeking the Death Penalty

20 What Judges Need to Know About the Affordable Care Act

24 Why Can’t We Be Friends? Judges’ Use of Social Media

27 The Future of Water Law

29 Growing and Learning: Applying Obergefell in State Courts

The Magazine of The National Judicial College

2015-2016

5 From the President

6 From the Chief Academic Officer

8 The NJC by the Numbers

32 2016 Course Schedule

34 NTJC News

37 NJC News

44 In Memory

55 NJC Boards

60 Donors

63 From the Archives

begins on page 49

THE NATIONAL JUDICIAL COLLEGE Judicial College Building/MS 358 Reno, NV 89557

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BOARD OF TRUSTEES Matt Sweeney, Esq. Chair Kim Dean Hogrefe, Esq. Secretary Wm. “Bill” T. Robinson, III, Esq. Treasurer and Chair-Elect Peter J. Neeson, Esq. Immediate Past Chair Peter Bennett, Esq. Alan R. Brayton, Esq. Elizabeth J. Cabraser, Esq. Hon. Toni E. Clarke Hon. Larry Craddock Hon. J. Michael Eakin Ann Thornton Field, Esq. Hon. J. Matthew Martin Tony F. Sanchez, III, Esq. Walter L. Sutton, Jr., Esq. Mark G. Tratos, Esq. Hon. John M. Vittone (Ret.) Hon. Christopher T. Whitten Sandra S. Yamate, Esq.

BOARD OF VISITORS Robert L. Parks, Esq. Chair James R. Bartimus, Esq. Vice Chair Jack Balagia, Esq. Timothy R. Donovan, Esq. A. Clifford Edwards, Esq. Stephen F. English, Esq. Hon. Sophia H. Hall John L. Holcomb, Esq. William H. Hurd, Esq. Irvin A. Molasky John H. Mowbray, Esq. J. Edward Neugebauer, Esq. Peter Chase Neumann, Esq. Charles E. Patterson, Esq. James W. Quinn, Esq. Marsha Y. Rabiteau, Esq. Patricia K. Rocha, Esq. Hon. James D. Rogers (Ret.)

FACULTY COUNCIL Hon. Don R. Ash Chair Hon. Andre M. Davis Immediate Past Chair Hon. Steve L. Smith Chair-Elect Hon. Jennifer Gee Secretary Hon. Toni T. Boone Hon. Elbridge Coochise (Ret.) Hon. Jane D. Fishman Hon. William G. Kelly Hon. Daniel P. Ryan Hon. V. Lee Sinclair, Jr. (Ret.)

NJC StaffEXECUTIVE OFFICEHon. Chad Schmucker PresidentLonnie Shodeen Executive Assistant

ACADEMIC DIVISIONJoy Lyngar Chief Academic OfficerWilliam J. Brunson Director of Special ProjectsJoseph Sawyer Director of Distance LearningKatheryn Yetter Academic Director

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Case in Point is published once a year by The National Judicial College. Articles and information that appear in Case in Point do not necessarily reflect the official position of The National Judicial College. Publication does not constitute an endorsement of views expressed. Readers are invited to address comments and suggestions to Jeanne Hill at [email protected]. We cannot guarantee the publication or return of unsolicited manuscripts.

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DESIGN & PRODUCTION Erik Flippo

ON THE COVER With apologies to Stanley Kubrick, we adapted the “bone cut” scene from 2001: A Space Odyssey to highlight the “future of justice” theme in this year’s Case in Point. While the iconic scene has any number of interpretations, we subscribe to the notion that regardless of how knowledgeable humankind becomes, it’s how we use that knowledge that matters most. Illustration by Erik Flippo.

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2015-2016

Since 1963, The National Judicial College has been the nation’s leading provider of judicial education. Our mission remains as relevant as ever: education, innovation and advancing justice.

The National Judicial College is an Equal Opportunity/Affirmative Action, ADA organization, and admits participants of any age, race, color, religion, gender, gender identity, sexual orientation, and national or ethnic origin.

© 2015 The National Judicial College. All rights reserved.


Dear Friends,

Forty years ago, in May of 1975, I started working in the courts. I was still in law school while I was working as a court officer and law clerk for a general jurisdiction judge. We have certainly seen major change in the courts in the last 40 years. Let’s look at some of the most significant changes.

Technology played a minor role in most courts 40 years ago unless you consider a Selectric typewriter technology. Even when I became a judge in 1991, the use of technology in the courtroom was quite limited. We had technology in the clerk’s office and in some of the staff offices, but I soon discovered that my courtroom didn’t even have electric outlets for projectors and laptop computers.

Today we are so dependent on technology that if the network is down, we can’t even hold a hearing. Another change affecting many courts has been the rise of self-represented litigants. In the general jurisdiction court I worked in Michigan in 1975, it was a novelty and was sometimes met with hostility. Today the increase has been dramatic and courts have had to adapt to handle this trend. It’s still troubling to some judges, and it creates challenges for them.

Perhaps the biggest change is the increased expectations of society together with the reluctance to adequately fund our courts. Forty years ago we expected judges to be good lawyers who would be fair and work hard. But today we want much more of our judges. We expect the community to have a drug court. We want judges to understand domestic violence, substance abuse, and mental-health issues. Judges also need to understand case management, alternative dispute resolution, and scientific evidence. To be an excellent judge today you need to understand sentencing, procedural fairness, implicit bias, and how to work with self-represented litigants. Sadly, most judges today need to know something about court security. Yes, it’s a much different job than it was 40 years ago.

And it will certainly be a different job in another 40 years, if not sooner. This is why we focused this issue of Case in Point on the Future of Justice. We put the question to our experienced NJC staff and asked them to develop story ideas that highlight evolving issues in justice.

Not surprisingly, technology advancements play a key role in articles dealing with the impact of drones on privacy rights and the increasing use of social media. Socioeconomic concerns dominate stories that explore the death penalty, healthcare resources for justice populations, same-sex marriage, and the influence of big money on judicial elections. We also offer a perspective on where water law may be heading.

So, I hope you enjoy these and the other stories in the magazine. I hope this issue gives you something to ponder. And I hope it also illustrates that regardless of how technology evolves, it is only as beneficial as those who employ it. I am happy to report that the NJC staff is as dedicated and talented a group of people as I could have hoped to lead. I’m proud to be the president.

From the President

Hon. Chad Schmucker

2015-2016 Case in Point · The Magazine of The National Judicial College · 6

I’m pleased to report that the academic programming at NJC is as strong as it has ever been. With many states shaking off the doldrums of the Great Recession, we experienced record enrollment in 2014, educating more than 6,000 judges and other court service professionals in person, and another

3,800 over the web.

I dedicate this success to our investors. Whether you have attended a course, participated in a webcast, taught a session, or donated to the College, you have invested in the success of NJC. We have been good stewards of your investment during some financially challenging times for this country. Here are the top 10 ways the academic division has managed to come out on top:

1. Amazing Faculty. Since 1963, the NJC has used a method of “judges teaching judges,” and this model has been adopted by all 50 states. More than 250 individuals make up the NJC’s faculty each year, and the vast majority of them are judges. Ninety percent of our faculty members volunteer to prepare, travel and teach for us. We calculate the value of donated time each year at $1.4 million. What motivates them? The chance to help the next generation of jurists attain excellence? The warm and collegial atmosphere? The opportunity to improve their own skill by teaching? I’m not sure, but I am certain that we would not exist without the wonderful men and women on our faculty.

2. No Talking Heads. Few people are “natural born” teachers. We provide annual faculty development opportunities to help individuals who already have subject matter expertise (usually judges) develop their presentation skills. We know that adults learn differently than children do, so we teach our faculty how to engage all types of adult learners. This increases participant engagement, which helps with retention. At the end of the day, it means our courses have a better chance of leading to better judges, and ultimately, better justice.

3. Smorgasbord of Choices. We offer educational opportunities for all types of judges on a wide array of topics. Need a two-week course for a new judge? We have that. Need a four-day course to study evidence? We have that, too. We continue to offer courses on the basic skills of judging (decision making, logic, writing, conducting a trial), as well as emerging issues (iPad apps for judges, medication-assisted treatment, judges using social media). We offer many skills-building “nuts and bolts” courses, as well as rejuvenating professional development courses for more seasoned judges.

4. Tell Us What You Really Think. We ask you to evaluate our courses at the end of every session. We ask for your input on the content, as well as the method of instruction. For select courses, we send out an outcome evaluation six months later to find out if you have been able to use the skills and abilities you learned. We ask for your ideas for new courses. We use this information faithfully to continuously improve the quality of everything we offer.

5. Eggs in Many Baskets. In financial-speak, we have a diversified portfolio to ensure long-term stability. We have several different academic product types. We are most famous for our “tuition-based” products: courses in Reno, other cities, or on the web where individual judges pay a tuition fee to attend. During the recession, we realized it would be increasingly difficult for judges to attend tuition-

From the Chief Academic Officer


Joy Lyngar

based courses, so we made a strategic effort to obtain federal funding to offer “grant-funded” courses. We were able to continue to offer free or low-cost educational opportunities during the most difficult years. In addition, we offer “custom-built” courses, tailored for a specific state or administrative law agency.

6. Sterling Reputation. Judges can attend our programming with confidence that the NJC has a long-standing reputation for being serious about education. We strictly adhere to the program schedule to honor our students’ time, as well as our faculty’s contributions. We require attendance at all sessions to obtain a Certificate of Completion. We run a tight ship. We don’t want any judge to ever face questions about the true purpose of his or her attendance at an NJC course.

7. Networking Across State Lines. The College offers something you can’t get at an in-state conference: the opportunity to have lunch at a table with 10 judges from 10 different states, sharing stories and ideas. Also, a regular component of NJC courses is small discussion group break-outs, where participants have the opportunity to delve more deeply into material and connect in a more intimate setting.

8. Partnerships. The NJC has ongoing relationships with more than 40 entities, from funding agencies, to allied organizations, to private foundations. Our ability to collaborate is another method of ensuring our ongoing economic success, plus it helps us keep our finger on the pulse of emerging issues that impact the judiciary.

9. Learn Without Leaving Your Chambers. We offer many different types of web-based education, from one-hour live webcasts, to six-hour self-study courses, to six-week models that combine do-at-your-own-pace segments with live sessions (blended learning model). The NJC has been at the forefront of online education for judges, and we have a national reputation for the excellence of these products.

10. On the Road Again. It might surprise you to know that only 20 percent of the people we taught last year came to Reno. Eighty percent of our participants were educated at locations around the country, whether at tuition-based away courses or custom-built courses designed for a specific state. We want to reach as many judges as possible with The NJC Experience, and we know Reno is not an easy destination for many of you.

These are the main reasons we came through the recession with flying colors. These are also the reasons that we are well-situated to continue to educate, innovate, and advance justice in the years ahead. Thank you for your investment in the College.

20%

The NJC by the Numbers 2014

184Number of courses o�ered — held onsite in Reno, across the nation, around the world, and online.

39Number of custom programs created for requesting jurisdictions.

6,077Number of in-person judicial o�cers educated by the NJC, exceeding 6,000 for the �rst time in College history.

$609,456

457

52

Total amount of scholarships awarded.

Number of individuals who received scholarship assistance.

109,589Number of professional judicial education certi�cates awarded to qualifyingjudges since 1963.

Number of years The National Judicial College

has been the nation’s leading provider

of judicial education.

3,800Number of judicial o�cers who participated in the NJC’s webcasts and online self-study courses.

of those we taught in-person came to Reno.

Scholarship funding is critical to the College in order to provide quality educational programming to the nation’s jurists. On average, 75% of judges cite lack of funding as the reason they would not be able to attend another course at the NJC.

80% of our participants were educated at locations around the country, whether at tuition-based away courses or custom-built courses designed for a speci�c state.



The Futureof Justice


The Future of Justice

Dark Money and the Future of Judicial Elections

Melody Luetkehans, Esq.NJC Program Attorney

In April, the United States Supreme Court held in Williams-Yulee v. Florida Bar that a state may limit a judicial candidate

or a judge’s right to personally solicit campaign funds. The 5-4 majority opinion was written by Chief Justice

Roberts, who emphasized the need to ensure the public’s perception of the integrity of the judicial system does not wane with the increasing costs of judicial campaigns.

In Williams-Yulee, the Court found that a state has a compelling interest in preserving public confidence in the integrity of its judiciary. The power of the court relies solely on the willingness of the populace to adhere to its decisions. The court has no way to persuade the public by either the purse, as in our legislative branch, nor by the sword, as in our executive branch. If the public’s perception is that a judge can be bought through campaign funding, that perception will erode the public’s confidence in the integrity of the court and will undermine our three-branch system of justice. The Court stressed the necessity of preserving public confidence by allowing states to keep the judge out of the campaign money fray. Williams-Yulee addresses the two-edged sword of public misperception when a judge personally asks for funds. The first side is the concern that a judge will favor donors in his or her judicial decisions; the second that donors may fear judicial retaliation if they do not contribute when asked for money by the judge.

For the judge or judicial candidate, raising money for elections can be fraught with ethical pitfalls and is open to easy misperception by the public regarding the influence donors have on the judge.

Though the Court only addressed the involvement of the judge in personally soliciting campaign funds, the discussion over the efficacy of judicial elections is being heard in every state. Campaigns cost money and judicial elections are becoming more and more expensive.

Currently, 39 states provide for some form of judicial

election. These elections occur on both partisan and non-partisan ballots. Seven states elect their final appellate court (supreme court) justices in partisan elections. Many more states allow partisan ballots for trial court seats.1 But beyond the spending in judicial races by political parties, the largest increase of money raised was from special interest groups.2

The National Judicial College reached out to two judges for their thoughts on the impact of money, especially big money, in judicial elections. Our first viewpoint is from NJC alumni Justice Sue Bell Cobb (AL), who in 2006 was elected chief justice of Alabama and at the time ran the most expensive judicial campaign in U.S. history. She discusses the awkwardness and the pressures of raising campaign money. Our second viewpoint is from Justice James Nelson (MT), who was appointed to his supreme court seat in 1993 and retired in 2012. He discusses his view on “dark money” in judicial elections and its potential to change the way judges decide cases.

For information on what money has been spent in your state in judicial elections, visit bit.ly/1CHnkUf.

Sue Bell Cobb, Former Chief Justice of the Alabama Supreme Court

Judging, as we all know, is not a vocation for the faint of heart. Pressure comes in many forms: to uphold the highest

1 Partisan Election of Judges, Ballotpedia, http://bit.ly/1ehcyhM, verified as of May 13, 2015.

2 Bannon, Alicia et al. The New Politics of Judicial Elections, 2011-12: How new waves of special interest spending raised the stakes of fair courts, Brennan Center for justice, Oct. 2013.


standards of conduct, to solve legal puzzles of tremendous complexity and difficulty, and — above all — to dispense justice. At times, judges even face threats to their physical safety and that of their families. That is pressure of a sort no one enjoys (I know; my home was firebombed by a disgruntled litigant when I was a trial court judge), but as judges we persevere and do our duty to the law and the ideal of justice. From the time of Hammurabi down to Solomon and to the present day, it was ever thus. But a new kind of pressure that many judges face is more troubling than any of these traditional challenges: the pressure to raise vast sums of money to run campaigns in judicial elections that grow ever more expensive.

And here too, I speak from unpleasant experience. When I ran for chief justice of my state in 2006, it was the most expensive judicial election in U.S. history. I raised $2.6 million, much of it from lawyers and interests with issues likely to come before the court. I did so for one simple reason: I had to. If I wanted to be competitive in the election, I had to raise the money, and those were the only

sources available to me.Contrary to the headline the editors of one national

publication applied to an article I wrote for them, I am not “ashamed” of anything I did in that campaign or while on the bench.3 I followed the rules. I never directly solicited a contribution, because I was uncomfortable doing so. And as a judge I dispensed impartial justice to the best of my ability, which is all any of us can do. But I will never forget the pressure this broken system placed on me. First the pressure to assemble the resources my campaign required. Although I never solicited a contribution, I spent hundreds of hours calling friends and lawyers I knew, starting conversations that my campaign committee would later steer toward one about money. Then, after my election, came the pressure to explain to the public that the ridiculous amounts of money my opponent and I had reassembled (he raised far more than I) did not prevent me

3 Bell Cobb, Sue, I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There. On The Bench: Politico online magazine, March/April 2015. http://politi.co/1eYvQcu


from upholding the highest standards of judicial conduct. The difficulty of this challenge was brought home to me by my first interview following the election, when a reporter asked me not about my status as our state’s first female chief justice or my reform agenda, but rather the unseemly appearance of the fundraising arms race in which I had so recently been engaged.

And then finally, after I took office, there was the pressure to administer justice as if the whole ordeal of money and politics had never happened. This may have been the greatest pressure of all. I know that I turned my mind against any form of bias with all my strength, and never consciously let politics intrude on the judicial process. Unconsciously? Well, by definition, I’ll never know for sure about that. I do know that studies by academics are increasingly finding a statistical correlation between campaign spending and judicial decisions as more and more money floods into elections.

So what are judges to do until this broken system is fixed? At a minimum, we must scrupulously follow the rules in our states regarding campaigns and fundraising. Each of us should also ask ourselves the tough ethical questions that those rules leave open. Are we comfortable soliciting contributions from lawyers and parties likely to appear before us? If so, what is the cost to the public’s perception of our courts? And we should each do what we can, according to our individual circumstances and personal beliefs, to reduce the role of money and politics in our judicial elections.

Jim Nelson, Former Justice of the Montana Supreme Court

Current cosmological theory predicts that some 74% of the known universe is composed of a pervasive dark energy — an invisible substance that may ultimately accelerate the universe into expansive oblivion.4

Not unlike dark energy, dark money spawned by the 2010 Citizens United 5 case has come to dominate the universe of judicial elections and, if left unchecked, may well drive our expectation of a fair, impartial and independent judiciary into extinction.

Dark money is a term used to describe “political spending by innocuously named groups whose own donors — the source of the money — [are] allowed to

4 See, Paul Davies, The Goldilocks Enigma: Why is the Universe Just Right for Life? A Mariner Book, Houghton Mifflin Company, 2006, pp 120-126.

5 Citizens United v. Federal Election Com’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed. 753 (2010).

remain hidden.” The source of these funds include 501(c)(3) groups and social welfare organizations — which, though required to report the amount of money they spend on electioneering — either directly or through contributions to super-PACs — are not required to disclose the identities of their donors.6 The Citizens United Court determined that money is a form of political speech protected by the First Amendment and, basically, that dark money organizations and super-PACs could expend unlimited sums of money to influence elections.7 The Court stated, while money contributed directly to a campaign breeds quid pro quo corruption, money expended indirectly for or against a candidate does not carry with it a corruptive effect.8

In his dissent to the Citizens United opinion, Justice Stevens predicted that the floodgates of money released as a result of the Court’s decision, would ultimately compromise the integrity of judicial elections as well.9 The justice’s fears were well-founded. As reported by the Brennan Center for Justice, “[o]n Election Day 2010, for the first time in a generation, three state supreme court justices were swept out of office in a retention election when voters expressed anger over a single controversial decision on same sex marriage.” The voter’s anger was fueled by a special interest campaign which poured nearly a million dollars into Iowa to unseat the justices.10 Matters only worsened. Since 2010, dark money spenders have expended significant amounts of money — funneled through the U.S. Chamber of Commerce, and special interest and partisan groups — to influence judicial elections in North Carolina, Alabama, Arkansas, Tennessee,11 and in Montana.12 The independent news organization, Mother Jones magazine, reports that donations to judicial candidates ballooned from some $83 million in the 1990s to $206 million in the 2000s. States affected included Texas, Alabama, Illinois, Ohio, Pennsylvania, Michigan, Mississippi, Louisiana, West Virginia, North Carolina and Florida.13

Non-Partisan groups that have studied influence that money has and is playing in judicial elections paint a bleak future for a fair, independent and impartial judiciary. A few

6 http://abt.cm/1g8eMRL, last visited April 6, 2010.

7 See, Citizens United, 130 S.Ct. at 900, 913.

8 See, Citizens United, 130 S.Ct. at 908-910.

9 See, Citizens United, 130 S.Ct. at 968.

10 Brennan Center for Justice, The New Politics of Judicial Elections: 2009-2010, http://bit.ly/1Nt4bMi, last visited April 6, 2015. (Hereafter, Brennan Center Report). [NJC Note: The three justices were David Baker, Michael Streit, and Chief Justice Marsha Ternus. Justice Ternus taught in the NJC’s course When Justice Fails: Threats to the Independence of the Judiciary, July 27-30, 2015, in Washington, D.C.]

11 See, http://ampr.gs/1IqMUDx, last visited, April 6, 2015.

12 See, James C. Nelson, It’s Time to Make a Change in Selecting Judges in a Post Citizens United World, Montana Lawyer, February 2015, p. 21, 26.

13 See, http://bit.ly/1g8hI0z, last visited April 7, 2015.


super-spenders are maintaining a dominant role in judicial elections. Increasingly, state judicial elections are being characterized by costly TV ad campaigns, character attacks, misinformation, attacks on merit selection of judges, and pushes to roll back public financing of judicial races.14 Studies have shown the mega-spending actually influences judicial decision making in civil15 and in criminal cases.16

Thirty-nine states elect their judiciaries. While it might be argued that the answer to the influence of big money

14 See, Brennan Center Report.

15 See, Joanna Shepherd, Justice at Risk, an Empirical Analysis of Campaign Contributions and Judicial Elections, http://bit.ly/1g8jdfs, last visited April 6, 2015.

16 See, Joanna Shepherd and Michael S. Kang, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, http://skewedjustice.org/, last visited April 6, 2015.

is merit selection, there are two problems: first, as noted above, the mega-spenders are attempting to roll back merit selection laws; and, second, the appointers, who typically include legislators, governors, and committees, are often also under the influence of dark money. Indeed, the likely only real solution to this corruption of all three branches of government is a constitutional amendment to require real campaign finance reform and to undo Citizens United.17

Will dark money ultimately annihilate our gold-standard of a fair, independent and impartial judiciary? If dark money keeps up its present exponential expansion, that result is likely. And, in the words of the dark money folks, you can take that to the bank!

17 See, for example, the work being accomplished on this solution by Free Speech for People.org. http://freespeechforpeople.org/, last visited April 7, 2015.

Sue Bell Cobb is a former chief justice of the Alabama Supreme Court. She served from 2007 until her resignation in August 2011. Cobb was the first woman elected as Alabama’s chief justice and had previously served from 1995 to 2007 as a judge on the Alabama Court of Criminal Appeals, the state court for criminal intermediate appeals. Before 1995, Cobb had served as a trial judge in state district court for many years.

Jim Nelson is a former justice of the Montana Supreme Court. He was appointed to that post in 1993 by Governor Marc Racicot, and retired from the bench on December 31, 2012. When Justice Nelson took the bench, he was a supporter of judicial elections. In the last years of his tenure, he has changed his opinion. Prior to 1993, he served as Glacier County Attorney as the county’s top prosecutor.

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Drones: The Latest Threat to the Right to Privacy

Jeanne M. HillNJC Director of Development/Communications

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual… the right to be let alone.”

That sentiment, which resonates strongly in today’s hyper-interactive America, was actually written in 1890 by Samuel Warren and Louis Brandeis in a Harvard Law Review article entitled The Right to Privacy. The authors sounded the alarm about the use of law enforcement surveillance of the data transmitted through the telegraph and telephone.

Fast forward to the 21st century and it’s not hard to conclude what Warren, a prominent Boston attorney of his day, and Brandeis, a future U.S. Supreme Court Justice, would think about the use of drones buzzing overhead equipped with technology to record and monitor your

every move. They could be justified in believing that drone technology had essentially eviscerated the privacy rights guaranteed in the Fourth Amendment.

Accurate? Depends upon whom you ask.According to the American Civil Liberties Union,

“drones deployed without proper regulation, drones equipped with facial recognition software, infrared technology, and speakers capable of monitoring personal conversations would cause unprecedented invasions of our privacy rights. Interconnected drones could enable mass tracking of vehicles and people in wide areas. Tiny drones could go completely unnoticed while peering into the


window of a home or place of worship.”In February 2015, the Federal Aviation Administration

(FAA), which previously passed a law to regulate drones as unmanned aircraft in 2012, reported that it had granted 1,428 drone licenses to entities in the United States. Of all the licenses approved, the majority have been granted to local and state law enforcement.

As of this writing, the U.S. Congress has not passed any legislation to address privacy concerns surrounding drone use by law enforcement.

In 2013, Congressman Ted Poe of Texas attempted to get H.R. 637: Preserving American Privacy Act passed which would require the attorney general to publish a list of all entities, public and private, that operate drones. The bill died in Congress.

Across the United States, many states and municipalities are not waiting for federal legislation and are drafting laws to balance personal privacy rights against the need for the public’s security. According to the National Council of State Legislatures, Arkansas, Michigan, Mississippi, North Dakota, Tennessee, Utah, Virginia and West Virginia have passed legislation. Alaska, Georgia and New Mexico have adopted resolutions related to Unmanned Aircraft Systems (UAS), also known as drones.

» Arkansas HB 1349 prohibits the use of UAS to commit voyeurism. HB 1770 prohibits the use of UAS to collect, photograph, or record information about critical infrastructure without consent.

» Michigan SB 54 prohibits using UAS to interfere with or harass an individual who is hunting. SB 55 prohibits using UAS to take game.

» Mississippi SB 2022 specifies that using a drone to commit “peeping tom” activities is a felony.

» North Dakota HB 1328 provides limitations for the use of UAS for surveillance.

» Tennessee HB 153 prohibits using a drone to capture an image over certain open-air events and fireworks displays. It also prohibits the use of UAS over the grounds of a correctional facility.

» Utah HB 296 allows a law enforcement agency to use an unmanned aircraft system to collect data at a testing site and to locate a lost or missing person in an

area in which a person has no reasonable expectation of privacy. It also institutes testing requirements for a law enforcement agency’s use of an unmanned aircraft system.

» Virginia HB 2125 and SB 1301 require that a law enforcement agency obtain a warrant before using a drone for any purpose, except in limited circumstances.

» West Virginia HB 2515 prohibits hunting with UAS.

If history repeats, don’t expect protections against invasive technologies like drones to become available through the courts in the short term.

First the case must go to trial, instead of ending with a plea bargain. If the defendant is convicted and chooses to

appeal on the grounds that the new technology constituted an illegal search, then the case works its way through the appeals circuits, and given the outcomes along the way, can end up in the Supreme Court.

Many previous cases dealing with new technologies that resulted in decisions upholding an individual’s right to privacy were decided in the U.S. Supreme Court, thereby paving the way for Fourth Amendment protection in lower courts as well. But the lag time between the initial incident and a court resolution was substantial.

Kyllo v. United States, 533 U.S. 27 (2001), held that the use of a thermal imaging, or FLIR, device from a public vantage point to monitor the radiation of heat from his home in 1992 was a “search” within the meaning of the Fourth Amendment, and thus required a warrant.

Riley v. California, 573 U.S. ___ 134 S. Ct. 2473 (2014), was a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital

Fourth Amendment to the U.S. Constitution

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.


contents of a cell phone during an arrest in 2009 was unconstitutional.

United States v. Jones, 565 U.S. ___ (2012), 132 S. Ct. 945, was a United States Supreme Court case which held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

Technological challenges to the Fourth Amendment are not new.

Warren and Brandeis were among the first to recognize the friction inherent in new technology and the right to privacy. In addition to police surveillance of telegraph and telephone data, the authors noted in the 1890 Harvard Law Review, “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops.”

Wiretapping was widely used by law enforcement and even sanctioned by the Supreme Court in 1928 through Olmstead v. United States. In A Social History of Wiretaps, David H. Prices notes the FBI and state governments wiretapped liberally through World War II and the Cold War periods. Then in 1967’s Katz v. US, the Supreme Court ruled that the Fourth Amendment protections against unreasonable searches extended to telephone conversations.

Despite this ruling it is widely believed that wiretapping increased through several presidencies. Then in 1994, Congress passed the Digital Telephone Act, which required all fiber-optic based switches be equipped to facilitate court approved wiretaps. Noted by Price in A Social History of Wiretaps, at the same time the government was wiretapping, the rise of the Internet enabled private companies to begin gathering personal data from computer users.

Passage of the Patriot Act after September 11, 2001 allowed government and financial institutions to examine electronic and computer records of anyone suspected of terrorist activities.

Over the years as more private data was being circulated through various technologies using satellites and the Internet, the public became comfortable with the convenience of using personal devices for communications and computing.

What issues with technology and the Fourth Amendment are courts grappling with today? How should they be handled?

We should understand how the new and relatively inexpensive technologies have changed the game for law enforcement, making long-term and wide-ranging surveillance relatively easy to accomplish even with limited resources.

Justice Samuel Alito, concurring with the judgment of the Supreme Court in United States v. Jones, said, “In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case — constant monitoring of the location of a vehicle for four weeks — would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”

To address the issue of the ease of long-term monitoring with new technology, some legal experts have adopted the “mosaic theory” of the Fourth Amendment. The “mosaic theory” states that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not.

According to Orin S. Kerr, a professor of law at George Washington University Law School, “This idea which was suggested by the concurring opinions in United States v. Jones, is that surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment.”

So if newer technologies such as GPS, infrared imagers, digital cameras and audio recorders threaten privacy under the Fourth Amendment, then drones which can carry all


these technologies simultaneously, and fly for many hours at very low cost, represent the trifecta of challenges to that privacy.

Law Professor Tom Clancy, who teaches The Fourth Amendment: Comprehensive Search and Seizure for Judges at The National Judicial College, sees the challenge that drone technology brings to the Fourth Amendment.

“Drone technology can be utilized for surveillance so invasively and for 24/7/365 at minimal cost. Plenty of police departments are experimenting with drones and there is currently no case law to protect us.”

Attorney Richard M. Thompson, writing for the Congressional Research Service on Drones in Domestic Surveillance Operations said, “The constitutionality of domestic drone surveillance may depend upon the context

in which such surveillance takes place. Whether a targeted individual is at home, in his backyard, in

the public square, or near a national border will play a large role in determining

whether he is entitled to privacy. Equally important is the sophistication of the technology used by law enforcement and the duration of the

surveillance. Both of these factors will likely inform a reviewing court’s reasoning as to

whether the government’s surveillance constitutes an

unreasonable search in violation of the Fourth Amendment.”

An issue to be examined when discussing the intrusion of technology into one’s privacy is the concept of privacy itself.

Many Americans today have a small modicum of privacy. If they have a smart phone with the GPS function enabled to navigate, post to Facebook or LinkedIn or shop on Amazon, they leave electronic footprints that law enforcement can legally trace. These Americans, it turns out, understand the intrusions on their privacy as a side

effect of using the Internet. That doesn’t mean they like it. A recent Pew Research Center survey, The Future of

Privacy, caught the attention of Judge Herbert B. Dixon and he wrote about it in the spring 2015 Judges’ Journal, published by the American Bar Association. He reported that 55 percent of Pew’s 2,500 respondents said that “privacy as we know it is disappearing. More than half believe their private interests are in jeopardy, that tracking of people’s personal lives for commercial profit will increase and that the government’s access to personal information will increase.”

He said, “There is no question that this new notion of privacy will impact Fourth Amendment issues. With new technologies, we can no longer ask what James Madison would say about (it).”

Paul Ohm, associate professor and associate dean for academic affairs at the University of Colorado Law School, writes in The Fourth Amendment in a World Without Privacy, 81 Miss. L. J. 1309 (2012): “In a world without privacy, a Fourth Amendment focused on privacy becomes nearly a dead letter. Today’s Fourth Amendment has been built around the reasonable expectation of privacy test, but no expectation of privacy will be deemed reasonable in a world

without privacy.”Despite this pessimism about the future of

privacy, a Reuters poll conducted in January 2015 on the use of police drones found surprising support. Sixty-eight percent of the 2,405

respondents said they support flying drones to solve crimes, and 62 percent support using them to deter

crime. NJC faculty member Hon. V. Lee Sinclair, Jr., said

drones versus privacy is a combination of many issues wrapped up into one.

“The first is the flight in air space that raises questions. Then we have the visual capability to hone into micro private areas. Add to this the ability to pick up sound. These are complicated issues with many constitutional concepts. Start with Katz. Add in Kyllo and Ciraolo. Then throw in US v. Jones on tracking devices and this will be the subject of Fourth Amendment junkies for some time.”

By the time the protections are written on the regulation of drones vis a vis the Fourth Amendment, the next new technology challenging the right to privacy will have already been invented.



Jody Arias and the Cost of Seeking the Death Penalty

Hon. Kent Cattani and Hon. Paul J. McMurdie

Recently, Arizona was in the national spotlight for the sensational trial of Jodi Arias, who killed her former boyfriend. She was headline news locally, and the topic of national debate for Nancy Grace and other court watchers. Arias’ guilt was never in doubt. The only question in

the case was whether she should spend the rest of her life in prison or be executed for her horrific crime. Two juries could not resolve the issue, and she was ultimately sentenced to life without the possibility of release.

And the cost for Arizona taxpayers? The Maricopa County Legal Defender has reported expenditures exceeding $3 million to retain counsel on Arias’ behalf for the first trial alone. The overall cost of prosecuting and defending this case will obviously far exceed that amount.

Had Arias received the death penalty, the costs would have continued to mount. The death penalty process in Arizona includes state post-conviction and federal habeas corpus proceedings that generally span a period of more than 20 years, and such proceedings would have added hundreds of thousands of dollars in costs for the prosecution and defense, not to mention judicial costs.

Death penalty proponents understandably chafe at arguments raised by defense attorneys and death penalty opponents urging the cost of the death penalty as a reason for doing away with capital punishment. The increasing cost of the death penalty arguably reflects added protections and efforts to increase the fairness of the process, and the cost thus does not add any moral dimension to an argument against the death penalty. Nevertheless, the cost of the death penalty should not be ignored.

The old adage that the death penalty is cheaper than housing murderers in the department of corrections is simply wrong. The Arizona Department of Corrections reports that the cost of housing a prison inmate is around $24,000 per year. If Arias lives to the age of 70 it will cost the State of Arizona $840,000. The first trial alone cost considerably more than that.

In Arizona, as in most jurisdictions, the decision to seek the death penalty is made by a local prosecutor — the elected county attorney. And the primary cost for the trial is borne by the county. But once a death sentence is imposed, the case shifts to the state attorney general’s office, and most of the costs associated with the approximately 20-year appeals process are borne by the state.

The process for determining what type of punishment to seek in a criminal case was put in place when Arizona became a state in 1912 — at a time when the cost of pursuing a death sentence was relatively insignificant and


the appeals process lasted for months, rather than years. Given the dramatic increase in the cost of seeking the death penalty, and the extraordinary changes to the death-penalty appeals process that have transpired since statehood, thought should be given to whether the process should be changed, including whether the state should have input into the charging decision and a concomitant responsibility to pay for the entire process.

Public support for the death penalty in Arizona and in other parts of the United States will likely continue for the foreseeable future, primarily because there are cases, such as terrorist bombings carried out by people like Osama Bin Laden and Timothy McVeigh, for which a life sentence is viewed to be an inadequate punishment. But such support does not necessarily extend to unbridled discretion to seek the death penalty in other types of cases, particularly where the costs of that decision will be borne by taxpayers to

whom the decision maker does not directly answer. At a minimum, the decision whether to seek the death penalty in

any given case should be made by someone or by a group of people accountable to those who pay for the process.

Several years ago, Robert Blecker, a criminal justice professor at New York Law School who supports the use of capital punishment (albeit to a lesser degree than it is currently being pursued in the United States), explained his views as follows: “I always knew Hitler deserved the death penalty. The question for me was, ‘Who else deserves it?’” That question remains pertinent today — perhaps even more so in light of constitutional arguments that the current death penalty process does not adequately narrow the class of individuals subject to the penalty. As to Jody Arias, there are some who believe that her crime evidenced a degree of brutality that warranted the death penalty. Others believe that Arias is not the type of person who posed a threat to anyone other than her victim, and that resources would have been better spent on other, more dangerous criminals. Certainly debates regarding what types of murders and murderers warrant the death penalty, and whether resources are better spent elsewhere, are discussions worth having.

Also relevant is the likelihood that a death sentence will be carried out. A recent study from researchers at the University of North Carolina at Chapel Hill reports that the most likely outcome for a capital case once a death sentence has been imposed is that the defendant’s conviction or sentence will be reversed on appeal. Execution is only the third most likely outcome. Of the 8,466 people sentenced to death from 1976 to 2013, 38 percent (3,194) had their sentences or convictions overturned. Thirty-five percent (2,979) remained on death row at the time of the study. Fewer than one in six defendants — 16 percent (1,359) — were executed. The rest died on death row of suicide or natural causes, had their sentences commuted, or were removed from death row for various reasons.

Given the current cost of pursuing the death penalty and given the current rate at which the punishment is actually carried out, maintaining the status quo makes little sense. The time has come to rethink the process by which the decision to seek the death penalty is made, including the determination as to how often and in what cases capital punishment should be sought.

Editor’s Note: Since this article was submitted, Nebraska lawmakers voted in May to abolish the death penalty, and the Connecticut Supreme Court ruled the death penalty violated its state constitution’s cruel-and-unusual-punishment provision, making them the 19th and 20th states to ban capital punishment.

Oklahomans will vote in this fall ’s general election on whether the death penalty should be enshrined in that state’s constitution. The U.S. Supreme Court ruled in June that the use of midazolam for lethal injections does not violate the U.S. Constitution’s ban on cruel and unusual punishment.

Judge Kent Cattani was appointed to the Arizona Court of Appeals on February 9, 2013. At the time of his appointment, Judge Cattani was an assistant Arizona attorney general, serving as solicitor general, overseeing civil appeals, criminal appeals, and capital litigation.

Judge Paul J. McMurdie was appointed to the bench of the Maricopa County Superior Court in 2005 by Arizona Governor Janet Napolitano. Previously he was a prosecutor for the Arizona Department of Water Resources, the Arizona Attorney General’s Office, and the Maricopa County Attorney. Judge McMurdie has served on the faculty of The National Judicial College since 2007.



What Judges Need to Know About the Affordable Care Act

Maureen McDonnell

The future of justice may be increased access to treatment for criminal defendants.

Criminal courts across the country are beginning to tap into the promise that our changing healthcare system holds for individuals with drug addiction and mental health issues. In the recent past, court and jail systems in most states have had very limited capability to establish access to treatment for those with addictions and mental illnesses. Evidence1 suggests, however, that increased community-based healthcare2 access for justice-involved individuals is linked to decreased recidivism and increased public health and safety. Innovations such as drug courts were developed as a result of this understanding, but they are expensive and difficult to expand system-wide.3 Because most criminal courtrooms see large numbers of high-need substance-abusing offenders, the courts need strategies to reach all offenders, not just those who participate in drug courts.

Enter the federal Medicaid expansion — an initiative with the potential to spur a substantial increase in access to community-based healthcare services in participating states. Court systems in these states are now presented with the opportunity to lead a crucial systems change and expand

1 As cited in Peter Coolsen & Maureen McDonnell, Anticipating the Impact of Health Care Reform on the Criminal Justice System, 27 Ct. MaNager 32 (Spring 2013), http://bit.ly/1ejCadG: “Critical findings have been distilled by the National Institute on Drug Abuse (NIDA), part of the National Institute of Health; the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services; the Bureau of Justice Assistance (BJA) and the National Institute of Corrections (NIC), which are part of the U.S. Department of Justice. NIDA’s Principles of Drug Abuse Treatment for Criminal Justice Populations distills these findings into key applications for justice agencies, community service providers and health care purchasing agencies” See National Institute on Drug Abuse, Principles of Drug Abuse Treatment for Criminal Justice Populations. (Published Sept. 1, 2006, Revised Aug. 2012.)

2 We use the phrase “community-based healthcare” to refer to the collection of healthcare service providers operating in a city, county or region, and outside the confines of the local criminal justice system. Providers that specialize in mental health and addiction treatment services tend to be best-suited to meet the needs of justice-involved individuals who have recently or will soon be covered by Medicaid.

3 Peter Coolsen & Maureen McDonnell, State Courts and the Promise of the Affordable Care Act in TreNds iN State Courts, located at http://bit.ly/1PXVhaT (Dec. 2014)

the set of tools that the justice systems use to manage and rehabilitate non-violent offenders. The result will be lowered costs and recidivism reduction for criminal justice systems, as well as improvements in health and family reengagement for those seeking to reintegrate as productive members of society.

The Promise of Expanded Healthcare Resources for Justice Populations

The Affordable Care Act (ACA) expands insurance coverage through: 1) the expansion of Medicaid to newly eligible low-income individuals and 2) the creation of healthcare “exchanges” — private insurance markets that facilitate education and choice for individuals looking to purchase health plans. Twenty-nine states have accepted the federal Medicaid subsidy at the time of this writing. In those states, it is estimated that the number of people in the justice system who are eligible for coverage will rise from one in ten, to nine in ten.4

This expanded coverage changes the game for community providers of behavioral healthcare services, laying the foundation for the healthcare system to constructively impact the criminal justice system at a system-wide level.5 Those receiving coverage under Medicaid expansion or through an exchange will be afforded important health benefits, including substance use and mental health treatment. As a result, providers

4 Rodriguez, Pamela. “A Call to Action for Counties: Improve Population Health and Reduce Recidivism by Rebalancing System.” Corrections>Coverage>Care: From Jail Enrollment to Healthcare Conference. Chicago, IL March 17, 2015

5 Coolsen & McDonnell. December, 2014.


will have an increasing financial incentive to expand their community-based services and serve the new influx of covered individuals. Expanded coverage also opens up the opportunity for innovations to emerge from partnerships between criminal justice agencies and healthcare providers. One such example is the recently implemented concept of “health homes” that were established specifically to serve individuals in the justice system with chronic and persistent mental illness.6

For the remaining 21 states, the ACA “exchanges” themselves may still have an impact on the justice system; a single adult making more than $11,170/year will be eligible to purchase subsidized insurance, resulting in lower premiums, deductibles, and co-payment costs.7 In these states, a focus on identification and voluntary enrollment of the justice population in the marketplace will yield positive

6 Id.

7 Id.

results. Practitioners in these states can also begin making preparations for the future arrival of Medicaid expansion.

Early Successes Cook County (including Chicago), Illinois was granted

the opportunity to implement an early prototype version of the Medicaid expansion, and already has taken steps toward healthcare and criminal justice systems integration. The work serves as an example for other jurisdictions to study. Judge Paul Biebel, Jr., presiding judge of the Criminal Division of the Circuit Court of Cook County, partnered with Treatment Alternatives for Safe Communities (TASC) to develop the Justice and Health Initiative (JHI). Together, they organized a steering committee and working groups that included the Cook County Sheriff’s Department, the Cook County Adult Probation Department, the


Cook County Health and Hospitals System, the Illinois Department of Healthcare and Family Services, and the Illinois Department of Human Services. These agencies have taken major steps to integrate healthcare enrollment

processes into the jail and probation systems, and have established the Access to Community Treatment Court, a “health-care-reform-ready” court model. Cook County’s experience will yield lessons8 for other cities and counties seeking to similarly increase access to substance abuse and mental health services for justice-involved populations.

Judges as Leaders of Change

As conveners, courts have the potential to bring these

positive changes to scale. Judges are already beginning to influence policy and spur needed partnerships and collaborations. Given the newly available healthcare

8 Harvard and Johns Hopkins Universities are currently studying the impact of these initiatives.

resources, these new collaborations will bring about impressive results. Judges are embarking on this work by asking the following questions:

» Is there a group of community stakeholders currently working to build partnerships between healthcare providers and criminal justice practitioners?

» What would a steering committee responsible for the implementation of this integration of services look like?

» How can the justice system organize the healthcare enrollment of individuals under criminal supervision?

» How will individuals with serious mental conditions and substance use disorders be screened and linked to community-based providers, caseworkers and other needed services?

» How can justice systems partner with substance use, mental health and medical treatment providers such that the latter organizations will be incentivized to build capacity in targeted communities and meet existing demand for services?

» How can the benefits of healthcare expansion be applied to diversionary, “no-entry” efforts within the justice system?

As jurisdictions across the country begin this work, technical assistance provider organizations such as the Center for Health and Justice (CHJ) at TASC are supporting their efforts as partners, and are building a knowledge base of replicable innovations and best practices related to the expansion of service. Healthcare coverage alone will not cure all ills for criminal justice in the U.S., but the expansion represents an important step toward a system characterized by rehabilitation rather than recidivism.

Editor’s Note: In June 2015, the U.S. Supreme Court ruled that federal subsidies offered through the Affordable Care Act were in fact legal.

Maureen McDonnell serves as director for business and health care strategy development for TASC, Inc. (Treatment Alternatives for Safe Communities), based in Illinois.

Before 2014 1 in 10 individuals appearing in court had healthcare coverage

Today 9 in 10 individuals appearing in court are eligible for healthcare coverage due to the Medicaid expansion

Related Courses

The NJC partners with CHJ at TASC on a two-day multi-disciplinary team-based course on emerging addiction science and systems change through the Justice Leaders Systems Change Initiative. There may be funding available to bring this course to your state. If you are interested, contact Joy Lyngar at [email protected].

If you are a judge interested in implementing a systems change improvement initiative, such as the one described in this article, the NJC offers a four-day course, Leadership for Judges, taking place August 22-25, 2016.

To learn more about addiction and mental health, we recommend Co-Occurring Disorders Advanced, a course offered August 22-25, 2016.


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Why Can’t We Be Friends? Judges’ Use of Social Media

Alisa Sparkia Moore, Esq.

Issues involving communication — in whatever format — are at the heart of many ethical concerns involving the judiciary.

The current hot topic is, of course, how and when it is appropriate for judges to participate on electronic social media (ESM) or social networking sites such as Facebook and Twitter, blogs (such as those on WordPress), professional sites (LinkedIn), and photo/video-centric sites like Instagram and YouTube. Law and technology rarely keep pace, and new social media technologies appear on a seemingly daily basis.

The wonderful and treacherous aspects of social media are that, using most of them, one may communicate with just one person or with a host of people, depending on how the sites are utilized. However, the user of any social media site must take great care to understand the ethical implications of taking any actions on any site. Using different ESM may raise diverse or overlapping ethical concerns guided by the ethical canons, recognizing that there are various levels or degrees of concern.

In 2013, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 462 (Judge’s Use of Electronic Social Networking Media), noting that electronic social media “has become an everyday part of worldwide culture” and “can be beneficial to judges to prevent them from being thought of as isolated or out of touch.” Referencing the ABA Model Code of Judicial Conduct, the Committee aligned judicial responsibilities using such platforms with communications that occur using “the U.S. mail, telephone, email or texting.”

The U.S. Courts Committee, in Codes of Conduct Advisory Opinion 112, summarized that “[i]n short, although the format may change, the considerations regarding impropriety, confidentiality, appearance of impropriety and security remain the same” (2014, 112-2).

Jennifer Gee, district chief judge, U.S. Department

of Labor, Office of Administrative Law Judges in San Francisco, said “security is my primary concern.” Although she is active on LinkedIn, she explained that “I’ve been to a number of conferences where court security presenters encourage judges not to be active in social media. I only got involved with LinkedIn because I volunteered to be a mentor for my law school, and they wanted all mentors to sign up for LinkedIn. With regard to my activities on LinkedIn — I have not posted or received any posts about cases before me, decisions I’ve made or anything related to my work. If I got anything, I would ignore it.”

Advisory Opinion 112 provides a specific list of ethical concerns for judges (and judicial employees) using social media:

(1) confidentiality; (2) avoiding impropriety in all conduct; (3) not lending the prestige of the office; (4) not detracting from the dignity of the court or reflecting adversely on the court; (5) not demonstrating special access to the court or favoritism; (6) not commenting on pending matters; (7) remaining within restrictions on fundraising; (8) not engaging in prohibited political activity; and (9) avoiding association with certain social issues that may be litigated or with organizations that frequently litigate (p. 1).

The essence of the issues is consistent: regardless of the technology, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”1

State court interpretations of the ethics canons reflect

1 Model Rules of Prof’l CoNduCt R. 1.2.


the same concerns. Opinions addressing the issue of judicial participation on social networking sites contain comments that range from South Carolina’s “[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge,”2 to Oklahoma’s more limiting rule that “a judge who owns an internet-based social media account may not add court staff, law enforcement officers, social workers, attorneys and others who may appear in his or her court as ‘friends’ on the account.”3

Generally the consensus of opinions concludes, as Ohio did, that “[a]s with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the... Code of Judicial Conduct.”4

The Honorable Don R. Ash, senior judge of the Circuit Court in Murfreesboro, Tennessee, noted that although he has a personal Facebook page, he does not discuss cases or what he does for a living on that site, having tried to make it private. He has never had anyone discuss a case on his “page,” saying “if it was a pending case, I would disclose

2 Advisory Committee on Standards of Judicial Conduct, Op. No. 17-2009, located at http://bit.ly/1F4qByf (South Carolina).

3 Judicial Ethics Advisory Panel, JudiCial EthiCs Op. 2011-3, located at http://bit.ly/1NYTp0h (Oklahoma).

4 Board of Commissioners on Grievances and Discipline, Op. 2010-7 (Dec. 3, 2010), located at http://1.usa.gov/1UbTULD (Ohio).

(the communication) on the record; depending on the situation, I might recuse.”

From the district court in Kentwood, Michigan, the Honorable William G. Kelly said, “I am active personally on Facebook to keep in contact with family and friends. I have not ‘friended’ any attorneys.” He continued that although he had had requests from attorneys to join them on LinkedIn, he had not done so because “I don’t have time to keep up with another social media site, and I am concerned about potential conflicts which could arise.”

Most states reviewed permit judges to have social networking accounts, providing they:

1. avoid “friending” attorneys who were or could appear before them, or at least take steps to ensure that there is no impression that attorneys who were “friends” were in a special position to influence the judge, and to avoid even an appearance of impropriety – as California Judicial Ethics Committee Opinion 66 notes, “[i]t is the nature of the [social] interaction that should govern the analysis, not the medium in which it takes place” (2010, p. 11).

2. exercise an appropriate degree of discretion in how he/she uses the social network, including not allowing participation in discussion on such sites to “impair the judicial officer’s ability to decide impartiality issues that come before the judicial

“ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”

— ABA Formal Opinion 462


officer.”5 For instance, “friends,” “likes,” “posts,” “tweets,” “fundraising appeals,” or “support for an organization” may indicate impropriety or the appearance of impropriety — the impression that the participant is in a special position to influence the judge.

3. stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules, including taking such steps as limiting privacy settings to avoid unintended audiences or “unfriending” attorneys who appear or will appear before the judge. “[N]ever assume any of the information they are transmitting or receiving is private or accessible to only the intended recipients.”6

Issues related to online interaction may be addressed by the judge through disclosure or, if necessary, recusal. Participating in ESM is not grounds for disqualification, per se, because the “ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”7 Disclosure is usually required. The judge must use the same standard of analysis whether the connection with a person is a social media one or some other personal or professional relationship the judge might have, and the same disclosure requirements exist.8

5 Ethics Advisory Committee, Op. 09-05 (Nov. 17, 2009), located at http://1.usa.gov/1EnXn2q (Washington).

6 Judicial Ethics Committee, Op. 66 (Nov. 23, 2010), located at http://bit.ly/1hmdlPM (California).

7 American Bar Association, Formal Op. 462 (Feb. 21, 2013), located at http://bit.ly/1JCecCJ.

8 Id.

The National Center for State Courts (NCSC) tracks the growth of social media use in the state courts and provides training for court personnel, state judges and others on what social media is, what the ethical issues related to social media are and the impact of new media on the courts. NCSC is also the home of the Center for Judicial Ethics, directed by Cynthia Gray, who authored “Judges and Social Networks” in the Fall 2012 edition of Judicial Conduct Reporter.

Gray notes that participation on the professional site LinkedIn may result in alternate conclusions from judicial ethics committees, such as the Utah committee which held that “a judge may maintain a profile on LinkedIn that identifies himself or herself as a judge and identifies the court on which the judge serves and may join law-related or other LinkedIn groups.9 The Utah opinion also discussed, and Gray detailed, the LinkedIn “recommend” feature, allowing but with some limitations, judges to “recommend” attorneys, attorneys to “recommend” judges and judges to “recommend” judges.10

The use of electronic social media by members of the bar in election campaigns is another more narrow issue that raises potential ethical conflicts. ABA Formal Opinion 462 addresses those concerns, noting that “Rule 4.1(A)(8) prohibits a judge from personally soliciting or accepting campaign contributions other than through a campaign committee authorized by Rule 4.4. The Code does not address or restrict a judge’s or campaign committee’s method of communication.”11

The opinion further holds that “[w]ebsites and ESM promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”12

Social media is ubiquitous. Electronic communication is here to stay, encouraging and supporting a global exchange of information. As always, judges have to exercise care in utilizing those modes of technology that might raise the question of impropriety, exercising vigilance, and following this conversation closely.

9 Utah Courts, JudiCial EthiCs INformal Op. 12-1 (Aug. 31, 2012), located at http://bit.ly/1KSZ3xP.

10 Id.

11 American Bar Association, Formal Op. 462 (Feb. 21, 2013), located at http://bit.ly/1JCecCJ.

12 Id. (citing Fl. Sup. Ct. Judic. Ethics. Adv. Committee Op. 2010-28 [July 23, 2010]).

Alisa Sparkia Moore, Esq. serves as director of communications and PR for the San Bernardino Community College District.

Social Media Resources for Judges

American Bar Association (2013, February 21) Formal Opinion 462 retrieved from bit.ly/opinion462California Judicial Ethics Committee Opinion 66 (November 23, 2010) retrieved from bit.ly/1JxWTs1Gray, C. (Fall 2012) Judges and Social Networks, Judicial Conduct Reporter, retrieved April 27, 2015 from bit.ly/1LII71ZNational Center for State Courts: Social Media and the Courts Network, retrieved from bit.ly/1KtEqgqPodgers, J., (2013, May 1) ABA opinion cautions judges to avoid ethics pitfall of social media, ABA Journal retrieved from bit.ly/1LIIqtEU.S. Advisory Opinion 112 (2014) retrieved from 1.usa.gov/1KtEKM0



The Future of Water Law Christal Keegan, Esq.

NJC Program Attorney

An Interview with California Court of Appeal, Third Appellate District, Justice Ronald B. Robie and Colorado

Supreme Court Justice Gregory J. Hobbs, Jr. Q: What do you think is the most important change in water law or water management that you have seen since the 1990s?

Hobbs: I think the most important change in water law has been the over-appropriated surface water and ground water. Water law is driven by water law availability for the various uses that state and federal law allow to be formulated in the water rights regime. For instance, in Colorado and in most western states, water is held in general and public ownership subject to the ability of the states to settle, allocate, assign, and use rights for the public’s water resources. Mother Nature and legal arrangements (such as interstate water compacts) determine how much water is available for all these uses, including recreational, instream, agriculture, municipal, industrial and hydropower.

Robie: I think the most important change in water management has been the concern for instream uses, fisheries, and environmental factors. Most of California’s water rights were established without regard to instream uses. The best example is in the late 1950’s when Friant Dam was built. It cut off the San Joaquin River and with it all downstream use including fisheries.

Hobbs: I would add to that the integration or non-integration of tributary groundwater in conjunction with surface water. In the past 20 years, Dividing the Waters sessions have been involved in environmental and fishery uses, increasingly with the interaction of the surface water resource and ground water resource where there is a hydraulic connection.

Robie: In California we have no real regulation of ground water yet. It is very dramatic right now during the

drought. There is a raging debate over whether agriculture should be coming up to the table for all the cuts being proposed. In the San Joaquin Valley when all your surface water rights are not available you just dig a well. It’s very much like the Wild West in California.

Q: What will be the most important change that water judges in the next quarter century will encounter?

Robie: Climate change is going to disrupt the order of things when we learn more about it.

Hobbs: That is very important because the timing of agriculture wanting earlier diversions may be dramatic. Then you have the problem of hotter temperatures and more evaporation, even in the traditional agricultural season scenario.

Robie: In California they are talking about more water coming through precipitation rather than snow pack but you have to be able to catch and store it and you don’t know if you can or not.

Hobbs: Sure — catch it, recharge it into the aquifers or store it in surface storage or a combination of both. But getting a permit to build a new storage facility is very difficult.

Robie: California has approved a big water bond issue and one of the features of it is the potential for building more storage facilities. The question is how effective they can be given the current situation.

Hobbs: There’s the Clean Water Act overlay where section 404 requires on private land, as well as public land, a dredge and fill permit from the Army Corps of Engineers to be able to build any significant storage or diversion feature. That kicks in the National


Environmental Policy Act and the Endangered Species Act. Another very notable change in the past 25 years has been the slowdown in being able to get new storage and diversion projects built because of the length of time it takes to get these 404 permits and to do the National Environmental Policy Act analysis.

Robie: It’s a fact of life. There are going to be changes in the California delta. There are already 10 lawsuits and hundreds of lawyers involved. There’s always litigation and not just from environmentalists but from people who feel they will be adversely affected by new water projects.

Hobbs: One enduring trend here, and we are all watching California, is the extent and limits of conservation.

Robie: California’s water board has said we haven’t conserved enough. We are going to start seeing dead lawns. We have been laissez faire about irrigation in urban areas.

Hobbs: Landscaping is going to change dramatically. In Colorado, we have outlawed any covenants that require lawns. You can’t have a new covenant where some of these developments require lawns although we haven’t declared that retroactive. It’s obvious with climate change that new water projects for landscaping are going to dramatically change because about half of Colorado’s water supply for municipal use is on landscaping.

Robie: One of the things California’s Governor Brown has done as part of the drought was to issue an executive order that you can’t prevent someone from having their lawn go dry or brown. Homeowner’s Associations say you can’t have a brown lawn. Well, now you can.

Hobbs: That’s just the fact of life in the west. We’re in the desert and we’ve lived as if we weren’t. Along the Front Range of Colorado we’ve looked like a mid-western or eastern state with lush lawns and tree canopies that weren’t here originally. There were just cottonwoods and sagebrush in the one-third that is the high plains along the Front Range eastern slope of Colorado.

Robie: The entire south coastal plain of California where a vast majority of people live is a semi-desert. People forget. We have palm trees all over Los Angeles.

Hobbs: That’s the symbol of Hollywood. One of the other profound things that has happened is a cooperation among the seven Colorado River Basin states. People don’t think about litigation as an alternative; they think about cooperation. This has extended to Mexico based on the Tijuana earthquake which disrupted their delivery systems. Now we have storage of Mexican water in Lake Mead. Who would have thought?

Robie: It’s just amazing. Peace on the Colorado is the most important factor.

Q: What about some of the other states?

Hobbs: We have Washington and Oregon that have a wet side and a dry side; Idaho is a very interesting combination of mountain, high plains, arid areas and humid areas. The Rocky Mountain states extending from Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming can be identified as sharing the same kind of problem: rocky mountain arid climate, high-desert mountains that have good watersheds, and highly variable years.

Q: Do you have any closing remarks?

Hobbs: One of the great things about Dividing the Waters is that the conferences it offers have taken us around the entire west and southwest. During these conferences judges and hearing officers examine water law and management, science and technology, and effective case management. Dividing the Waters has been the only and most unique aspect of education for generations of water decision makers about how the states, feds, and these structures operate. It’s been an incredible resource to judges in states that otherwise couldn’t afford to have such judicial education. We would be sitting in solitary pods trying to do these things and not have the benefit of learning what the tools are that judges or hearing officers absolutely need when they hear one of these complex cases.

The full transcript of Ms. Keegan’s interview with Justices Robie and Hobbs can be found on the Dividing the Waters website: www.judges.org/dtw

Questions developed by Alf W. Brandt, executive director of Dividing the Waters



Growing and Learning: Applying Obergefell in State Courts

Alisa Sparkia Moore, Esq.

On June 26, 2015, the United States Supreme Court issued their highly anticipated decision in Obergefell v. Hodges, the “same-sex marriage” case.

In a 5-4 decision, the Court held that the denial of marriage licenses and recognition to same-sex couples violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.1

Now, with the decision in Obergefell, state courts will have to consider the same issues for same-sex married couples as they have for opposite-sex married couples: full-faith-and-credit recognition by states of marriages, divorces and custody arrangements between parents; intestate succession; and matters related to spousal privilege, to name a few.

Professor Todd Brower,2 faculty for The National Judicial College in judicial ethics, comments on additional ways that state courts may need to shift the way they view married same-sex couples in court. “Other issues will need more nuanced solutions,” Brower explained. “For example, same-sex domestic violence cases have existed in courts for years. The dynamics of abuse can take different forms in same-sex situations, requiring a differentiated response by the court. Marriage may or may not change the way that judges will handle those cases.”

Asked specifically about the impact of Obergefell on medical issues, Brower answered, “Like [with] any married couple, the law assumes that a spouse (of whatever sex) is the default person to make medical decisions for someone not able to make the decisions themselves. This is not always respected, but a same-sex married couple should be treated legally the same as an opposite-sex couple. The issue will be whether practically that is true.”

1 Obergefell v. Hodges, 576 U.S. ___ (2015).

2 Professor Todd Brower has been a professor of law at Western State College of Law since 1983 and serves as the judicial education director for the Williams Institute at UCLA School of Law. In this role, he provides assistance with educational programming, curriculum development, and other resources for dealing with the varied sexual orientation and gender identity issues and challenges that appear in the courts. Contact him at [email protected].

Some more challenging issues may be the intersection of marriage and religious freedom concerns. Professor Brower asks, “How will the courts, court personnel, judges all reconcile ethical obligations and canons, job duties, religious beliefs, and their impact on the public and procedural fairness demands? These challenges are already playing out in the courts and will come to the forefront as American society in various locales integrates the decision and its aftermath into daily life.”

Almost half of the states have enacted religious freedom restoration acts (RFRAs) and a dozen more are considering similar laws.3 Generally, such laws prohibit the state from burdening any person’s right to exercise his or her religion. There are many opportunities for state RFRAs to collide with same-sex marriage issues and for those conflicts to be heard in the state courts.

Professor Brower notes, “Some judges may have moral, religious, or personal issues about whether or not they will participate in same sex marriages.” Particularly sensitive

3 For statistics and descriptions, visit the National Conference of State Legislatures’ website at http://bit.ly/1hL2cIP

DC

Same-Sex Marriage Law in the U.S. Prior to Obergefell

Legal

Banned

Legal statusin disputeBan ruled unconstitutional,decision stayed inde�nitely


to the potential judicial ethics questions raised by these issues, he encourages judges to look to the ethics canons for guidance, including those that speak to promoting confidence in the judiciary, bias, prejudice and harassment, and extrajudicial activities in general.

Joseph Sawyer, director of ethics and fairness courses at The National Judicial College, agrees. “The issues that will be litigated now are whether states may exempt state employees and judges from performing same-sex marriages on the basis of personal religious beliefs or whether businesses, licensed by the state, may refuse service to same-sex couples on the basis of personal religious grounds.”

Some issues raised by the decision are simply administrative in nature. Professor Brower states that “longer term, the inclusion of same-sex couples within the institution of marriage and the institution of the court system will no doubt raise some ‘growing pains’ that will be addressed going forward. Easy fixes will be things like changing forms and language to ensure access to the courts and court system for all married couples and their families.”

“Courts already have many tools to deal with some questions, once they get advice on how to use them appropriately. For example, jury questionnaires and other jury issues already ask about marriage, family, and other relationships; they will now include all marriages, families, and relationships. The trick is how to differentiate between times when the identical tools can be used and when they must be modified slightly,” Brower added.

The NJC also is ensuring its compliance with the Court’s holding. Chief Academic Officer Joy Lyngar explained, “While the definition of spouses has changed, all the laws in place around marriage are gender neutral. However, the NJC will be updating curricula in several courses to take into account the SCOTUS decision including Current Issues in the Law; Ethics, Fairness, and Security in Your Courtroom and Community; and Managing Challenging Family Law Cases.”

When seeking out additional resources on the ruling, Professor Brower said that “among the most significant resources available to judges and courts in this area is the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy located at UCLA School of Law.”4 The Williams Institute is dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy. As a national think tank, the Williams Institute produces high-quality academic research with real-world relevance and disseminates it to judges, legislators, policymakers, media,

4 [http://williamsinstitute.law.ucla.edu].

and the public. State courts new to the idea of same-sex marriage need

not feel isolated. Since same-sex marriage was enacted in individual states starting in the early 2000’s, several states have experience interpreting and implementing these laws. As Professor Brower observed, “Starting in 2003, various lower court decisions, state legislation, and popular referendums legalized same-sex marriage to some degree in 37 states, in one U.S. territory, and in the District of Columbia. Many states have been performing same-sex marriages for several years. They would have experience in dealing with these issues.

“In the short term, state courts and court personnel will see same-sex couples, their marriages, and their families in courts and in courtrooms in all the same situations that they have always seen opposite-sex couples, their marriages, and their families. There is no longer same-sex marriage and opposite-sex marriage; there is just marriage.”

Supreme Court Marriage Decisions

Obergefell was not the first time the Supreme Court held the right to marry is protected by the Constitution, nor was it the first decision related to marriage that was without controversy. Here are a few examples cited in the decision:

» Loving v. Virginia, 388 U. S. 1, 12 (1967). Invalidating bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

» Zablocki v. Redhail, 434 U. S. 374, 384 (1978). Held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying.

» Turner v. Safley, 482 U. S. 78, 95 (1987). Held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry.

The Court has also ruled on the constitutionality of governmental discrimination against same-sex couples. In United States v. Windsor, the Court ruled 5-4 that section three of the Defense of Marriage Act (DOMA) was unconstitutional, barring the federal government from discriminating against married lesbian and gay couples for the purposes of determining federal benefits and protections. Professor Brower notes that more than 1,000 federal benefits and obligations were impacted by the Windsor ruling, including immigration, federal employee benefits, military and veteran spousal benefits, income and estate taxes, Family Medical Leave Act, Social Security, Medicaid and Medicare benefits, welfare and food stamps, student aid and bankruptcy filings.



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An Interview with Stan Wolfe, Director, Administrative Office of the Seminole CourtOn February 19, 2015, the Seminole Tribe of Florida took an historic step with the inauguration of its new judicial officers for their appellate and trial courts. NTJC Program Attorney Ashlei Neufeld and NTJC Director Christine Folsom interviewed Stan Wolfe, Director of the Administrative Office of the Seminole Court, on the long journey to the court’s creation.

Q: Tell us a little bit about the structure of your court system. What jurisdiction does the court exercise?

A: The Seminole Tribe of Florida amended their Constitution and Bylaws in 1983 in order to vest the judicial powers of the Seminole Tribe of Florida in a tribal court. The Constitution and Bylaws of the Seminole Tribe of Florida allows for both civil and criminal jurisdiction.

Q: Why did the Seminole Tribe decide to develop their court system?

A: The need for a tribal court came to the forefront in 2005 when the Florida Department of Children and Families (DCF) came upon the Seminole Tribe of Florida reservation to investigate an abuse and neglect allegation involving the grandchild of the Chairman, Mitchell Cypress. The original goal was to regain jurisdiction over those cases that involved child abuse and neglect of the children on Seminole land.

Q: How did you incorporate the community in the development process?

A: The chairman charged a small group of individuals with discussing how to develop a tribal court to handle child abuse and neglect cases. It was this group that made the decision to form a court committee. The committee would consist of at least one member from each of the Seminole clans, a representative from each major reservation (Hollywood, Big Cypress, Brighton), and two advisors (myself and the chairman’s policy advisor). Meetings were open to the tribal membership and held

on each of the three reservations on a rotating basis. Once a model was developed, that model was taken to the communities for their input. The final design and ordinance establishing the court was then discussed in tribal council before final approval and implementation.

Q: What was the biggest challenge that you encountered setting up your court? How did you overcome the challenge?

A: One of the biggest challenges to setting up the tribal court was politics. Competing interpretations of the Seminole Constitution were used

Seminole Tribe of Florida

During their swearing-in ceremony, new Seminole Tribe of Florida judicial officers stand in front of the tree where the tribe’s first constitution was signed.

NTJC NewsNews


to slow and inhibit the development of the tribal court. However, by gaining community support early in the process and gaining the support of federal officials, we were able to overcome the political resistance and move forward.

Q. What has been the biggest success in developing the court?

A: Getting the court in place was the biggest success. It has been part of the Seminole Constitution since 1983 and has never been implemented.

Q: Florida is a Public Law 280 State, how did that factor into how you developed your court? What is your working relationship like with the surrounding state courts?

A: Being in an optional PL 280 state allowed us to focus only on the civil court, leaving the criminal to remain with the State of Florida. However, with an early focus on child abuse and neglect cases there is a separate committee that has been charged with developing the Child Welfare Code. This committee has been able to develop working relationships with those state court judges who handle

cases of child abuse and neglect that occur on Tribal lands. Many of them are willing to help in our development, and are eager for the day when those cases can be transferred to the Seminole Court.

Q: How many employees does the court have? How many cases do you anticipate the court handling in your first year?

A: The Seminole Court consists of the appellate court and the trial court. Each court consists of three judges. There is also a Clerk of Court, a Deputy Clerk, and a Judicial Advisor for the Trial Court judges. In addition there is a Director who handles the administration of the Seminole Court. Therefore, we have at present 10 employees with three more positions unfilled at this time.

Q: What approach did you take in the development of your court system? Western, traditional, a balance of both?

A: The decision of the court committee was to go with a more Western style of court. It was the philosophy of the committee that if

you wanted to handle your matters in a traditional manner, then you would not be going to court and it would be handled within their traditional clan system.

Q: What advice would you give to other tribes looking to start their own court system?

A: Make sure you have the buy-in of all of those in power to approve the court system. Determine what your tribe’s needs are and use that need to push the process forward. Finally, make sure it is developed by and for your tribe.

The NTJC would like to especially thank Stan Wolfe, all the Seminole Tribal Court staff, justices and judges for their kind and continued support of our courses and conferences. We are honored to number the new justices and judges of the Seminole Tribe among some of our most frequent participants in 2014. The Administrative Office of the Seminole Court graciously assisted financially with an event in North Carolina earlier this year and we are truly grateful for their generosity.

Professor Sarah Deer named a 2014 MacArthur FellowSarah Deer, professor of law at the William Mitchell College of Law, is one of the 21 exceptionally creative individuals who make up the 2014 class of MacArthur Fellows. Professor Deer focuses on violent crimes on Indian reservations and has written books on the matter. The MacArthur Foundation says that her work has

leveraged a deeper “understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.” Fellows each receive a no-strings-attached stipend. The Fellowship comes

with no stipulations or reporting requirements, and allows recipients maximum freedom to follow their own creative visions. Professor Deer first attended the College in 2001 and later taught for The National Tribal Judicial Center in 2006.

The State of Tribal Gaming TodayChristine Folsom, Esq.

Ashlei Neufeld, Esq.

Tribal gaming operations can positively impact communities by increasing the tribe’s ability to provide governmental programs and services while strengthening opportunities for economic development in other areas that may firmly set the tribe on the path to greater autonomy. According to a 2013 National Indian Gaming Commission chart, 26 out of 449 total gaming operations made in excess of $250 million in revenues.1 Revenues from gaming may also be directed toward philanthropic giving. The National Tribal Judicial Center at The National Judicial College has been fortunate in receiving such gifts that have helped us continue our mission to enhance educational offerings to tribal court judges and personnel, improve justice in Indian Country, and increase understanding and respect between Tribal courts and U.S. courts.

While tribes aim to primarily support their citizens as well as government

programs and services that directly benefit them, they also look outward to assist where there is a need. Gaming

tribes in Washington assist tribal members and

non-members

throughout the state, extending a helping hand to build community centers, sustaining educational programs, and providing financial assistance to individuals in need.2 The Choctaw Nation is recognized for donating to domestic and international relief efforts.3 Some tribes, like the Shakopee Mdewakanton Sioux Community have donated money to other tribes to help them move forward.4 Arizona’s gaming tribes contributed $14.2 million to the state’s coffers in the last quarter of 2014.5 These are great gifts of goodwill and compassion that highlight the tribes’ generosity and their valuable place in this country.

Tribal courts also benefit greatly when supported by tribal revenues and the certainty of continued funding. The ability to build and sustain a justice system is a hallmark of a thriving sovereign government that is forward-thinking and concerned with protecting the rights of its citizens and fairly

treating those who are

doing business with the tribe. Gaming can open the doors to other revenue streams like retail operations, tourism, manufacturing, business support services, aerospace, construction and healthcare services to name a few of the endless possibilities. Hand-in-hand with this tremendous opportunity for financial growth and stability comes an obligation for tribal courts to be equipped to handle cases that arise out of these business relationships.

The goal of the NTJC is to create lifelong learners of our colleagues across Indian Country. We endeavor to raise the benchmark of education for tribal judges. We invite you to accept the challenge and attend a course at the NJC where you will develop new skills and increase your confidence at the side of colleagues and expert faculty.

The story continues at www.judges.org/tribalgaming

Christine Folsom is the director of the NTJC and a citizen of the Choctaw Nation.

Ashlei Neufeld is a program attorney with the NTJC.

1 http://1.usa.gov/1Cu5IRu There 240 tribes in 28 states engaged in gaming.

2 http://bit.ly/1J6Gw0b

3 See http://bit.ly/1CsfseP and also http://bit.ly/1dOVq2m

4 E.g., http://bit.ly/1eKhg7H

5 http://bit.ly/1NRYuaf

The ability to build and sustain a justice system is a hallmark of a thriving sovereign government that is forward-thinking and concerned with protecting the rights of its citizens and fairly treating those who are doing business with the tribe.


Judicial Studies Graduate Program: “One of the Best Educational Experiences… Ever”The National Judicial College, in collaboration with the University of Nevada, Reno, has been serving judges a unique educational opportunity since 1986, the graduate degree program in Judicial Studies. The Judicial Studies Program has had a distinct impact on the field of judicial education and has graduated 142 judges with their master’s degrees and 12 judges with their Ph.D.s.

The courses in the program include offerings from the NJC, and specialized seminars developed by the University which are taught by top professors from around the country. Judges in the program give high marks to all the offerings, and gain valuable knowledge through their participation.

Gary Clingman is a district judge in southeast New Mexico who completed a Master’s in 2014. He was able to use his thesis on Preemptory Excusal of Judges to influence the New Mexico Supreme Court: “If you file or are served in New Mexico you can excuse the assigned judge for no reason,” Judge Clingman said. The supreme court was about to severely limit this right but changed their proposed rules after reading his thesis.

“I wrote that the court shouldn’t limit a right that the voters and legislators had put in place many years ago,” he said.

Judge Clingman called the Judicial Studies Program the most satisfying educational experience of his lifetime and he encourages new judges he meets while facilitating in the General Jurisdiction course at the NJC to enroll in the program.

“It was a privilege to be taught by the brightest, top-flight instructors,” he said.

A current student of the program, Judge Egan Walker from Nevada, agrees. “The program is one of the best educational experiences I have ever experienced. It has helped with all my skills that I use while on the bench.”

The program also allows for judges to meet and collaborate with other judges from around the country and world. “The most interesting thing about the program is the commonality throughout the types of judges. I have been able to meet with many other judges and talk about some of the common challenges we have and how they dealt with the issues. You really benefit from all the other judges’ knowledge as well as the instructors,” Judge Walker said.

— Ashley Cook

To learn more about the program, contact Professor Jim Richardson, director of the Judicial Studies Program, at (775) 784-6270 or visit www.judicialstudies.unr.edu

NewsTentative 2016 University of Nevada

Judicial Studies Course Offerings

January 4-14 JS 750 – Criminology Matthew Leone, University of Nevada

June 20-30 JS 720 – Comparative Law Lisa Hilbink, University of Minnesota

July 11-21 JS 710 – History and Theory, Part 2 Faculty from UC Berkeley

July 11-21 JS 725 – Medical Legal Issues Richard Bjur, University of Nevada

July 25-Aug 4 JS 730 – Law and Economics Michael Gilbert, University of Virginia

July 15 Thesis Orientation Elizabeth Francis, University of Nevada


Longtime National Judicial College board member Lydia I. Beebe, Chevron Corporation’s corporate secretary and chief governance officer, was honored with the Advancement of Justice Award at a private reception attended by distinguished attorneys and judges from around the country in San Francisco on March 19. The Advancement of Justice award is presented to those who have demonstrated dedication to improving justice in the judiciary.

Beebe served as a member of the NJC’s Board of Trustees from 2008 to 2014. During that time she held the position of Board Secretary and was a member of the development, executive, nominating, and finance and governance committees.

While on the NJC board, Beebe shepherded numerous generous gifts from Chevron to the Pillars of Justice Fund, which provides unrestricted giving directed to projects such as the Resource Guide for Managing Complex Litigation.

Beebe’s dedication to the advancement of justice includes her eight years of service on the California Fair Employment and

Housing Commission, (FEHC) five years as chairman. The seven-member commission is a quasi-judicial body responsible for enforcing California’s civil rights laws as they affect employment and housing. Beebe received a Civil Rights Hero award from the state of California during their Tribute to Legends and Pioneers of Civil Rights for her leadership of the FEHC. She also served on the San Francisco Bar Association’s No Glass Ceiling in the Legal Profession task force, was named a Fellow of the American Bar Association, and received the Legal Momentum Award as a Woman of Achievement.

“While many care about well-educated judges and efficient and effective courts, not everyone steps up like Lydia Beebe,” NJC President Chad Schmucker said.

Beebe noted that the College’s more than half-century of providing judicial education, and its continuing affiliation with the American Bar Association gives the NJC credibility and prestige within the legal community. She also believes the more people learn about the College, the more they will want to become engaged.

“You know when you’re dealing with the NJC, you will be working with high quality, educated professionals in their respective fields,” Beebe said. “The board members, the faculty, the staff — I find them all to be very dedicated.”

— Jeanne Hill

Advancement of Justice Award Presented to Lydia I. Beebe

NJC News

NJC President Chad Schmucker, Lydia Beebe, Marybel Batjer, and Peter Neeson

The NJC Board of Trustees with Marybel Batjer and Lydia Beebe (front row center)


Nearly 200 people gathered at the U.S. Supreme Court last year to celebrate the accomplishments of The National Judicial College and to spotlight the high court’s role in the College’s founding more than 50 years ago. The event was made possible by Supreme Court Justice Antonin Scalia.

The September 29 event was held in the Upper Great Hall of the Supreme Court and attended by NJC donors, supporters, faculty, staff, the Board of Trustees, and the Board of Visitors. Peter Neeson, chair of the NJC Board of Trustees, opened the proceedings by pointing out the appropriateness of the D.C. venue given that the College may not have been created in 1963 but for the recommendation of Supreme Court Justice Thomas C. Clark. Not only was Justice Clark a staunch advocate for a national college for judges, but he subsequently served as the first chair of the NJC Board of Trustees from 1963-1970.

“This event provided a great opportunity for the NJC to highlight our important work in the nation’s capital,” said NJC President Hon. Chad Schmucker. “We are profoundly grateful to Justice Scalia and our Board of Trustees for making this event possible.”

Justice Scalia noted his familiarity with the NJC: “I support what you do, and I hope you have another successful 50 years,” he said.

— Hon. William J. Caprathe (Ret.)

Justice Scalia Welcomes the NJC to the U.S. Supreme Court

James Bartimus and Lyn Parks

Hon. Toni E. Clarke, Kim Dean Hogrefe, Matt Sweeney, Justice Antonin Scalia, Mark Tratos, Peter Neeson, and Hon. John Vittone

Ron Cass, Justice Antonin Scalia, and Peter Neeson

Hon. Herbert Dixon, Hon. William Caprathe, Phoebe Dixon, Hon. Toni E. Clarke, Karen Lockwood, and Hon. Christopher T. Whitten


Early Adopter of Technology Improved Court’s Caseflow

An intensive four-day course on caseflow management for state judges at the NJC was led by a retired judge whose early adoption of technology dramatically improved caseflow in his own home state court. Effective Caseflow Management, designed for judges, administrators, and court managers, provides a rigorous examination of the components of effective caseflow management. Hon. Chad Schmucker, the NJC’s president, offered opening remarks on how a large backlog of cases (the result of poor case management) sacrifices procedural fairness, counsels’ time and clients’ money, efficient jail operations, court resources, and peace of mind for the judge and court staff.

State Supreme Court Justice Finds ‘Other Side of the Bench’ Experience FulfillingNevada Supreme Court Justice Mark Gibbons discussed his experience from “the other side of the bench” on May 6, 2015, during an academic course for new judges. Justice Gibbons related his experience as a juror to over 70 new judges from around the nation during NJC’s two-week General Jurisdiction course on the University of Nevada Reno campus. The class gave attending judges an opportunity to listen to and question Justice Gibbons as well as Ms. Kris Hansen and Ms. Linda Cross — who had recently served on northern Nevada juries. Gibbons called sitting on a jury “a fulfilling experience.”

Nevada’s First Court of Appeals Judges Seek The NJC ExperienceJust weeks after being sworn in as justices in Nevada’s newly created Court of Appeals, Chief Judge Michael Gibbons, Judge Jerome Tao and Judge Abbi Silver enrolled in two courses at the NJC for professional development. The courses involved building their overall judicial skill sets and — an integral component of those skills — judicial writing. “The courses at the NJC are helpful for me, since there were no judges to guide us on the rules and procedure for the Court of Appeals,” said Judge Tao. The goal of the Judicial Writing course is to achieve a style that is simple and understandable to those who read judicial documents.

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New NJC Website Both User- and Mobile-FriendlyThe College debuted its new website on May 5, 2015. Rebuilt from the ground up on a WordPress foundation, the site adjusts its layout on-the-fly to display optimally on screen sizes ranging from smart phones to large desktop monitors. The site has also been completely reorganized to help users find what they need most with a miminum of clicks. It also provides a new home for stories from Case in Point and The Judicial Edge, the NJC’s monthly email newsletter. The site was designed and built in-house by the NJC’s graphic and web designer, Erik Flippo.

NJC News


Judge David Shakes Named Recipient of Sandra Day O’Connor AwardJudge David Shakes, who first attended the NJC in 2000, was named recipient of the Sandra Day O’Connor Award for the Judicially Speaking program he helped start in 2009.

Judicially Speaking is a collaborative program made possible by 100-plus judges and educators who have dedicated their time and creativity

to improving public education. Judge Shakes and the program have helped reach thousands of middle and high school students. The program has been integrated into Colorado’s social studies curriculum.

The Sandra Day O’Connor Award for the Advancement of Civics Education is presented annually by the National Center for State Courts.

Honors & Awards

Robert L. Parks, Esq. Receives 2015 Legal Legend AwardVeteran trial attorney and NJC Board of Visitors Chair Robert L. Parks received the 2015 Legal Legend Award from the HistoryMiami 11th Judicial Circuit Historical Society.

The award recognizes members of the legal community who have made significant contributions to the law,

legal system or the administration of justice in the 11th Judicial Circuit for at least 25 years. A nationally recognized trial attorney with more than 50 years of experience, Parks is a highly respected advocate in the courtroom and a leader in the community.

NJC President Authors Chapter on Judicial Education for ABA BookPresident Chad Schmucker of The National Judicial

College has been tapped to write a chapter for The Improvement of the Administration of Justice, set to be published this fall by the American Bar Association.

President Schmucker has authored the chapter on “Judicial Education” in cooperation with attorney William Brunson, Director of Special Projects, who has worked in

the academic division of the NJC for more than 20 years.According to the ABA’s Chief Counsel for the Judicial

Division, Peter Koelling, “Chad was asked to author the chapter as the President of the NJC, the most significant judicial education institution in the United States.”

The book will be available from the ABA online store at shop.americanbar.org.


Baker Donelson Shareholder Matt Sweeney Named Chairman of the NJC Board of Trustees

Former judge Matt Sweeney, shareholder in the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, was recently named chair of The National Judicial College board of trustees. Sweeney has been a member of the board of trustees since 2011. “I was fortunate to attend the NJC General Jurisdiction course as a young judge. By far, it was the best and most useful judicial education I ever received. I am honored to now serve as board chair, which allows me to further advance the college’s mission. The NJC supports and sustains the American judiciary by providing ongoing training and education to underpin the rule of law and promote public confidence in the judiciary.”

Nevada Court of Appeals Oral Arguments to be Heard in OctoberThe Nevada Court of Appeals will be holding Oral Arguments in the model courtroom of The National Judicial College on Oct. 21, 2015 from 10 a.m. to noon. This will be the first time that the Court of Appeals will convene at the NJC. The bench and bar are invited to attend. Contact the Chambers of Chief Judge Michael Gibbons at (702) 486-9304 or (775) 684-1520 for more information.

Senator William J. Raggio Honored at the NJCThe Senator William J. Raggio Endowment has been established by Mrs. William Raggio to honor his leadership in bringing the NJC from Colorado to Reno in 1964, and to highlight the significant part he played in securing financial support for the NJC during his long tenure in office. As a Republican member of the Nevada Senate from 1972 in 2011, he is the longest-serving member in state history.

He passed away in 2012. Those who wish to contribute to the Endowment can do so online at www.judges.org/donate or by contacting Jeanne Hill at (775) 327-8257 or [email protected].

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Honors & Awards

Judge Michael R. Morgan Receives NJC Teaching AwardNational Judicial College President Chad Schmucker was on-hand at the North Carolina Bar Association annual meeting in Ashville, N.C. on June 19, 2015 to present the prestigious V. Robert Payant Award for Teaching Excellence to the Hon. Michael R. Morgan, a superior court judge in the General Court of Justice for the State of North Carolina.

Early in his career, Judge Morgan attended Administrative Law: Fair Hearing, a course that is still very popular today. He became a member of the NJC faculty in 1993, teaching the same course he took years before. He has continued to teach at the College every year since. From 2006 to 2008, Judge Morgan served as a member of the NJC Faculty Council, a governing body that ensures that quality teaching standards are maintained and that the curricula offered are relevant, challenging and invigorating to the College’s participants.

Prior to his election to the superior court bench in November 2004, Judge Morgan served as an elected district court judge in North Carolina’s Tenth Judicial District and as a state administrative law judge with the North Carolina Office of Administrative Hearings.

NJC News

Judge Michael R. Morgan (left) receives the 2014 V. Robert Payant Award for Teaching Excellence from NJC President Chad Schmucker.

The National Judicial College has served the educational needs of judges not only from around the U.S. but also from more than 150 countries. In recent months, as part of the U.S. State Department’s International Visitors’ Leadership Program, the NJC, in conjunction with the Northern Nevada International Center, played host to delegations from Romania, Panama, Costa Rica, Moldova, and Brazil.

Each country’s representatives come to the United States to gain a greater understanding of the U.S. justice system. They learn how the U.S. adjudicates cases and how the NJC educates judges. Each project is carefully designed to reflect the international visitors’ professional interests as well as support U.S. foreign policy goals.

International Visitors’ Leadership Program

Moldova

Brazil

Panama and Costa Rica Romania


Felix F. Stumpf, Esq. Honored with Memorial Fund

Attorney Felix Stumpf, a long-time academic employee of The National Judicial College, passed away on August 16, 2015. Mr. Stumpf served as director of the NJC’s Academic Department from 1973 to 1984 and as academic liaison officer from November 1990 to October 1991. He later served as a project consultant and publications manager. During his tenure at the NJC he wrote Inherent Powers of the Court and Bench Trial Skills and Demeanor, two publications that are still available from the NJC. He received the NJC Award for Teaching Excellence in 2001.

In recognition of his many years of service to the NJC, the College is establishing The Felix F. Stumpf Memorial Fund. Anyone wishing to honor his service can donate to this fund online at www.judges.org/donate or by contacting Director of Development Jeanne Hill at [email protected] or 775-327-8257.

In Memory

Hon. Timothy C. Murphy

Judge Murphy of Glens Falls, New York, long-time member of the NJC Faculty, Faculty Council and Board member, passed away on January 8, 2015 at the age of 85. Murphy served 20 years as faculty, six years on the Faculty Council, and six years as a Board member at the NJC.

Judge Murphy graduated from St. Michael’s College in Vermont, Georgetown Law School and The George Washington University. He began his Civil Service at the National Labor Relations Board and in 1960 became an Assistant U.S. Attorney for the DC Court of General Session. In 1966 he was appointed by Lyndon Johnson as a Federal Judge for the Court where he served for nearly 40

years, later returning to the DC Superior Court where he served as Senior Judge until he retired.

A champion of the justice system, he also was a donor to the NJC for more than 24 years and designated a legacy gift to the college upon his passing.

Joseph M. Nolan, Esq.

Mr. Nolan of Mantoloking, New Jersey, a former member of the NJC’s Board of Trustees, passed away on January 27, 2015 at the age of 95. Nolan served as a member of the board from 1989 through 1995, and was held in high regard for his respect and love of the law.

Mr. Nolan served in the United States Coast Guard during WWII. He graduated from New York University and Rutgers

University School of Law. In 1954, he started his own law firm Nolan, Lynes, Bell, & Moore in Newark. Mr. Nolan was a member of the American, New Jersey, Essex, and Ocean County Bar Associations and served as President of the NJ State Bar. He was a Life Member of the Fellows of the ABA and a permanent member of the Judicial Conference of the United States Court of Appeals for the Third Circuit.

NJC News


In Memory

Hon. Robert C. BibbJuly 1, 2015 Seattle, Washington

Hon. Karen K. BraatenOctober 4, 2014 Grand Forks, North Dakota

Hon. Michael B. CalvinNovember 29, 2014 St. Louis, Missouri

Hon. J. Ernest Kinard, Jr.May 19, 2015 Camden, South Carolina

Hon. Larry J. KingSeptember 15, 2014 Olympia, Washington

Hon. Claudia House MorcomAugust 17, 2014 Detroit, Michigan

Hon. Paul W. SchnakeNovember 12, 2014 Colorado Springs, Colorado

Prof. Alan J. Winters, Ph.D.January 16, 2014 Clemson, South Carolina

Hon. Eugene W. SalisburyMarch 27, 2013 Blasdell, New York

How will your judicial legacy continue...

...after you’veleft the bench?

�e National Judicial College was there for you when you began your career, it provided continuing education when you needed it most, and for some judges, it allowed you to return as faculty to prepare the next generation of adjudicators.

�rough your will, a charitable remainder or life trust, or by naming the NJC as the bene�ciary of your life insurance or IRA, you can help the NJC continue to provide judges with the knowledge, skills and abilities vital for their role on the bench.

Name the NJC as a bene�ciary in your estate plan and become a member of the NJC Legacy Council.

You don’t need great wealth to support the NJC. By taking care of your family �rst in your will or bequest, then leaving a remainder of your estate to the NJC, you can create a meaningful legacy that matches your interests and circumstances.

For more information contact Jeanne M. Hill at [email protected] or (775) 327-8257


NJC Awards 2014-2015

Graduates

Judicial Studies Program

Master’sHon. J. W. Looney (AR)Hon. Ross P. LaDart (LA)

Professional Certificate in Judicial Development

Administrative Law Adjudication SkillsHon. Steven D. Olmstead (Ret.)State Board of Equalization (WY)

Hon. Gary E. ShapiroU.S. Postal Service (VA)

Hon. John S. TomlinsonIdaho Transportation Dept. (ID)

Dispute Resolution SkillsHon. Patrick B. AugustineU.S. Occupational Safety & Health (CO)

Hon. Sheldon P. DornDept. of Motor Vehicles (NY)

Hon. Andrew H. HendersonU.S. Navy- Marines Corps Trial Judiciary (CA)

Hon. Melvin R. Hughes, Jr.Circuit Court (VA)

Hon. Gary E. ShapiroU.S. Postal Service (VA)

General Jurisdiction Trial SkillsHon. Denise Barela-ShepherdDistrict Court (NM)

Hon. James G. BodifordSuperior Court (GA)

Hon. Michael J. BordalloSuperior Court (GU)

Hon. Michael N. DeeganDistrict Court (WY)

Hon. Christopher M. GreerU.S. Navy-Marine Corps Trial Judiciary (NC)

Hon. Richard T. GurleyDistrict Court (CO)

Hon. Mary Katherine HuffmanCourt of Common Pleas (OH)

Hon. Richard B. KayneMunicipal Court (WA)

Hon. Nicholas MartzU.S. Navy-Marine Corps Trial Judiciary (NC)

Hon. Robert H. Montgomery, Jr.Court of Criminal Appeals (TN)

Hon. Jeffery R. NanceU.S. Army Trial Judiciary (KS)

Hon. George W. RiggsU.S. Navy-Marine Corps Trial Judiciary (NC)

Hon. Brendan J. SheehanCourt of Common Pleas (OH)

Hon. Tim D. TuckerCircuit Court (SD)

Hon. Netti C. VogelSuperior Court (RI)

Special Court Trial SkillsHon. April J. SilversmithMagistrate Court (NM)

Hon. Gregory D. SmithPawnee Nation Supreme Court (TN)

Hon. Milton ZackiosDistrict Court (MH)

Tribal Judicial SkillsHon. Marina L. Fast HorseShoshone-Bannock Tribal Court (ID)

Hon. Leonard R. LivingstonNavajo Nation Ramah Judicial District Court (NM)

Staff Excellence AwardsRebecca BluemerCat Todd (retired in September 2015)

V. Robert Payant Award for Teaching ExcellenceHon. Michael Morgan

Advancement of Justice AwardLydia Beebe, Esq.

Faculty Awards

35 Year Award

Hon. Tom D. Capshaw (IN)Hon. W. Michael Gillette (OR)

25 Year Award

Hon. Gregory Holiday (MI)

20 Year Award

William H. Anderson, Ph.D. (NV)Hon. William F. Dressel (HI)Hon. Jennifer Gee (CA)Hon. Leslie A. Hayashi (HI)Hon. Daniel P. Ryan (MI)

15 Year Award

Hon. Don R. Ash (TN)Hon. Toni T. Boone (OR)Hon. Eileen A. Kato (WA)Hon. James A. Morrow (MN)Mr. Robert Redmond (DC)Dr. Philip M. Stahl (AZ)

10 Year Award

Hon. Elizabeth H. Drews (TX)Prof. Jules Epstein (DE)Hon. Anita M. Fogle (OH)Ms. Lisa P. Jaeger (AK)Hon. Daniel S. Jurkowitz (AZ)Hon. John C. Lenderman (FL)Hon. Alli B. Majeed (FL)Mr. Andrew Mintzer (CA)Dr. Melissa Piasecki (NV)Hon. Marshall A. Snider (CO)Prof. Yvonne Stedham, Ph.D. (NV)Hon. David T. Suntag (VT)

Mr. Mark L. Zyla (GA)

5 Year Award

Hon. Archie E. Blake, Ph.D. (NV)Mr. Alf W. Brandt (CA)Prof. Terence C. Coonan (FL)Hon. Patricia K. Costello (NJ)Hon. Susan L. Formaker (CA)Hon. Lisa M. Rau (PA)

NJC News


The NJC Welcomes New StaffJeanne Hill, Director of Development and CommunicationsJeanne Hill is a 20-year educational advancement professional from California who joined the NJC in February 2015. Hill spent nearly 15 years at Moorpark College in California, first as the public information officer and then as director of the Moorpark College Foundation. In 2011 Hill became the director of development at Villanova Preparatory School, a Catholic High School in Ojai, CA. Hill received her BA in Public Relations/Environmental Studies from SUNY Plattsburgh.

Cathy Hill, Deputy Finance DirectorCathy Hill moved from Orange County, CA to Reno, NV in 1990, working as an accountant for a local moving company. From there she was the business manager for Sage Ridge School. She joined the NJC in May 2015, having previously served as the fiscal administrator of the Second Judicial District Court in Reno, working with 15 Judges, five Masters and two Commissioners. She earned a BS in accounting and an MBA from the University of Nevada, Reno. She also holds a Professional Human Resources certification.

Megan Downs, Communications CoordinatorMegan Downs joined the NJC in August 2015. She served as director of communications for the Howard R. Hughes College of Engineering at the University of Nevada, Las Vegas, and as a media relations specialist for UNLV. She also worked as a communications coordinator for Eastern Florida State College and as an education reporter at Florida Today newspaper. She holds an MA and BA in journalism from American University and the University of Nevada, Reno, respectively.

Michael Jacobs, Program Attorney Michael D. Jacobs joined the NJC as in January 2015, following careers as an administrative law judge with the state of California and as a park ranger on Mt. Tamalpais in Marin County. Jacobs has served as a trial attorney for the California Department of Transportation, legal counsel for the California Emergency Medical Services Authority, a pro tem judge in the Marin County courts, and maintained a private practice in California and New York. He received a bachelor’s degree in government from St. Mary’s College of California, JD from University of the Pacific, McGeorge School of Law, and Master of Judicial Studies from the University of Nevada, Reno.

Sarah Dahl, Distance Learning ManagerSarah Dahl, a Nevada native, began her career in supporting judicial education with the National Council of Juvenile and Family Court Judges in 2001 after graduating from the University of Nevada, Reno. After taking some time off to raise kids and run a small business, she returned to the field as the Membership and Events Coordinator at the State Trial Lawyer Association. She joined the NJC in November 2014, and is greatly enjoying facilitating distance and in-person learning.

Ashley Cook, Communications SpecialistAshley Cook joined The National Judicial College as the interim Communications Specialist in February 2015, and signed on full-time in May. Cook is a Nevada native, and recent graduate from the University of Nevada, Reno, holding a BS in Business Management. Prior to joining the NJC, she worked as a business specialist at Rite of Passage, a national provider of programs and opportunities for troubled and at-risk youth.

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AudioVisual Technologies

Annual Report2014

More than 6,000 judicial officers took in-person courses at the NJC and around the country in 2014. Another 3,800 judges and other court service professionals took programs online. We provided 561 judges and judicial personnel with $587,000 in scholarships to attend NJC courses, with a significant amount of that funding coming from individual and corporate donors like those of you who are reading Case in Point magazine.

Against the backdrop of historically high enrollments and increased need for scholarships, the College recently produced a Case for Support video.

We are grateful for each and every gift donated to the College and

encourage you to watch our new video to learn about the NJC’s accessibility: courses offered in Reno, around the country and online; courses led by sitting or retired judges from around the country and from every jurisdiction; and a comprehensive curriculum that offers educational opportunities for virtually every type of judge — at every stage of his or her career — on a wide variety of topics.

But perhaps one of the most significant benefits of The NJC Experience is the collegiality.

Peer-to-peer interaction is a hallmark of an NJC education. Our faculty are a resource that students will tap for years after they leave the course. And the networking that takes place is invaluable.

The NJC Experience — accessibility, veteran faculty, relevant courses, and collegiality — is why 98 percent of judges who take an NJC course say they would welcome taking future courses. However, of that total, 75 percent identified a lack of funding as the primary obstacle to pursuing continuing education.

Our board chair Matt Sweeney put it best: “Well-educated judges are essential to a strong court system, which fairly and promptly resolves the disputes that come before it. Your contributions to the College will help us satisfy that mission through programs and scholarships. Please be generous. Your donations to the College will make a difference.”

Please visit www.judges.org/giving today to see the video.

Making the Case for Giving to The NJC Experience

Hon. Chad SchmuckerPresident


2014 Revenue

2014 Expenses

$9,702,522

$10,010,855

Contributed Services 32%$3,097,028

Investment Income 3%$266,763

Grants 26%$2,519,517

Tuition 8.7%$1,196,744

Contributions 10%$982,398

Increase in Market Value of Investments 8%$771,470

Other Program Income 9%$868,602

Courses & Program Expense 74%$7,460,395

Fundraising Expense 8%$780,167

Pension Liability Change 11%$1,082,776

General Administrative Expense 7%$687,517

(audited)

(audited)

Annual Report2014


Assets as of December 31, 2014

$18,749,313

Investments 79%$14,833,233

Furniture, Fixtures and Equipment 2%$366,951

Cash 14%$2,672,151

Accounts Receivable 3%$562,909

Deposits, Prepaid Expense and Inventory 2%$314,069

Liabilities and Net Assets as of December 31, 2014

$18,749,313

Net Assets 77%$14,525,556

Deferred Revenue 2%$346,386

Pension Liability 18.0%$3,338,443

Accounts Payable and Other Liabilities 3%$538,928

(audited)

(audited)


The NJC educates the nation’s judges through a variety of modalities supported by various funding sources. Regardless of the delivery vehicle or financial resource, every program contributes to the College’s central mission of education – innovation – advancing justice in courtrooms across the country.

1. Tuition-based courses held at the NJC on the University of Nevada, Reno Campus

Judges who came to the NJC in 2014 took part in 30 residential courses ranging from one to two weeks. This figure includes courses offered through the NJC’s National Tribal Judicial Center. The NJC prides itself on educating its faculty on state-of-the-art adult learning principles and practices. Because of this background and education, the NJC’s diverse and experienced faculty are able to assist judicial participants in improving their core competencies through course content that the NJC evaluates and refreshes with the latest information.

The teaching emphasis on “learning by doing” and providing opportunities for judges to interact with their peers from around the country are key ingredients of The NJC Experience. This immersive approach enables judges to immediately use the new information when they return to their jurisdictions. The NJC Experience includes the College’s setting: the University of Nevada, Reno. Nevada is ranked as a national Tier 1 University by U.S. News and World Report. It is a distinction earned based upon the quality of students, faculty, research

activity, and degree programs. The campus features museums, a world-class library, a picturesque century-old oak-lined quadrangle, and ivy-covered buildings, including the historic Morrill Hall, built in 1886.

2. Courses Across the Country

The NJC offers several tuition-based courses in destinations around the country to satisfy the needs of more experienced judges who request specific academic subjects. The College makes it a practice to hold these enriching classes in locations that offer attractions for judges to enjoy in the off-hours. In 2014, the NJC conducted seven courses:

» Judicial Philosophy and American LawSedona, AZ

» Today’s Justice: The Historic Bases Washington, DC

» Current Issues in the LawNew Orleans, LA

» Ethical Issues in the Law: A Novel Approach Ashland, OR

» Enhancing Judicial Bench Skills Orlando, FL

NJC Programs

5,625The total number of instructional hours the NJC provided to 105 judges in the spring and fall sessions of General Jurisdiction in 2014.

63%The percentage of the NJC’s learners who are state judges. The remaining 37% of the College’s student body are administrative law, limited jurisdiction, tribal, and military judges, as well as court service professionals.

Annual Report2014


» Best Practices in Handling Cases with Self-Represented Litigants Santa Fe, NM

» Dispute Resolution Skills Charleston, SC

These courses also carry the elements of The NJC Experience: Experienced faculty, a learning-by-doing approach, and peer-to-peer interaction. And, as with the Reno-based classes, many seminars also provide credit toward the NJC’s certificate programs and Judicial Studies degree program.

3. Tuition-based web courses

The NJC was one of the first judicial education organizations to educate judges using distance learning beginning in 1999. Today, the College’s six-week Blackboard programs feature weekly web conferences via WebEx, quizzes, video clips, readings, simulations, rich discussions among the participants and faculty, and exercises — including the drafting of an opening statement for judges when they begin court — among many others. Each faculty-led program lasts six weeks and is taught by a team of three to six judges who are subject matter experts in the topics presented. In 2014, the College’s web courses included:

» Ethics for the Administrative Law Judge

» Selected Criminal Evidence Issues

» Evidence Challenges for Administrative Law Judges

» Handling Small Claims Effectively

» Ethics and Judging: Reaching Higher Ground

The College also uses Blackboard to present online pre-course and post-course components that complement the NJC’s face-to-face courses.

4. Custom-designed programs

For some agencies or courts, it makes financial sense to contract with the NJC to deliver a course in the agency’s or court’s state. To ensure a successful program, the NJC conducts a needs assessment and presents a custom-designed program at a location and date that is convenient for the contracting party. Contracting entities include federal and state administrative law agencies, court systems and judicial education organizations, among others. For instance, the Arkansas Administrative Office of the Courts annually funds a course for its limited jurisdiction judges focusing on traffic issues. In the administrative law context, the District of Columbia Department of Employment Security contracted with

$1.4 millionOn average, the amount the College’s 250 volunteer faculty members donate in teaching time annually.

28Number of states that have had — or have scheduled — a Human Trafficking: What Judges Need to Know workshop. For each jurisdiction, the NJC customizes the curriculum for that state’s particular statutes and cases.

2014 NJC Enrollment at-a-Glance

Tuition-Based Courses (In-Person, O�-Site, Tribal, Web) 43 1,056

Custom-Designed Courses 39 2,122

Federal Grant Initiatives 26 1,779

Collaborations and Private Grant Initiatives 16 1,173

Total 124 6,130

Live/Recorded Webcasts, Online Self-Study Courses (est.) 3,750

COURSES ATTENDEES


Since the beginning of The National Judicial College, tribal judges have attended the NJC’s courses, but in 1992 the College began offering courses specifically for the tribal judiciary. The NJC wanted to establish a separate center that focused solely on tribal justice, and so, in 2002 the NJC founded The National Tribal Judicial Center (NTJC). The Center is the result of meetings which took place between the NJC’s staff and tribal judges and leaders to define the best way to meet the tribal judiciary’s educational needs. Funding to support the NTJC came from a U.S. Department of Justice, Bureau of Justice Assistance grant.

the College to present a course on unemployment adjudication. In short, if the participants can’t come to the NJC, the NJC can come to them.

5. Federal grant programs and projects

The NJC is a leading resource for government agencies seeking assistance with judicial-related projects and programs. The NJC presents an average of 20-30 federal grant programs annually. Federally funded grant projects cover a wide range of subjects, including capital litigation improvement, caseflow management, sentencing sex offenders initiatives and human trafficking. A partial list of federal agency funders include the U.S. Department of Justice, Bureau of Justice Assistance; the State Justice Institute; the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; the National Highway Traffic Safety Administration; and the Federal Motor Carrier Safety Administration.

6. Collaborations and private grant projects

These projects are mainly collaborative programs with other entities such as the International Association for the Advancement of the American Legal System, the Center for Court Innovation, the National Center for Justice and the Rule of Law, the Center for Health & Justice at TASC (Treatment

Alternatives for Safe Communities) in Illinois, the Pretrial Justice Institute, and private funding sources such as foundations and charitable trusts. International programs are sometimes included in this category and sometimes funded by federal grants.

7. Internet-based education

Beyond its tuition-based web courses, the NJC offers other kinds of web-based tools to meet the needs of judges who may not otherwise have access to judicial education programming. For example, the College offers a series of 60- to 90-minute live webcasts on a variety of topics. Examples include:

» Notable Decisions of the U.S. Supreme Court

» Understanding Co-occurring Mental Health and Substance Abuse Disorders

» Mediator as Leader

» Procedural Fairness and Case Management

Also popular are the self-study recorded programs, including Taking the Bench: An Online Program for New Judges, and a series of traffic-themed webcasts.


NJC BoardsBoard of Trustees

The College has an appointed 18-member Board of Trustees, which sets policy, fosters a climate of excellence, promotes the development of innovative judicial education programs and provides leadership in achieving the NJC’s mission. Trustees are dedicated individuals from diverse fields encompassing the law and the judiciary, as well as business and corporate areas.

Matt Sweeney, Esq., ChairNashville, TNMediator and arbitrator; Shareholder and Conflict Counsel, Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C. Graduate, Seton Hall University and Vanderbilt University School of Law. Graduate of the NJC General Jurisdiction Program. Fellow of the Nashville Bar Foundation and the Tennessee Bar Foundation.

Peter J. Neeson, Esq., Immediate Past ChairPhiladelphia, PASenior partner and Chair of Rawle & Henderson’s Environmental, Toxic and Mass Torts Department. Graduate, University of Miami Law School. Past chair of the Tort, Trial and Insurance Practice Section (TIPS) of the American Bar Association. Founder of the ABA TIPS Leadership Academy and founder of the ABA TIPS Trial Academy.

Kim Dean Hogrefe, Esq., SecretaryWarren, NJSenior Vice President of Chubb & Son. He is the Worldwide Claim Technical Officer of Chubb’s Claim Department. Graduate, Yale University and the University of Pennsylvania Law School. Served as the Financial Officer and on the governing Council of the Tort Trial & Insurance Practice Section (TIPS) of the ABA.

Wm. T. (Bill) Robinson, III, Esq., Treasurer and Chair-ElectFlorence, KYMember-in-Charge, Northern Kentucky offices of Frost Brown Todd LLC. Inducted into the University of Kentucky, College of Law’s Alumni Hall of Fame. Was the 135th ABA President. Graduate, Thomas More College and the University of Kentucky, College of Law.

Mark G. Tratos, Esq.Las Vegas, NVFounding & Co-managing Shareholder of the Las Vegas office of Greenberg Traurig and founder of the law firm of Quirk & Tratos. Graduate, University of Nevada, Las Vegas and Lewis & Clark Law School. Teaches at University of Nevada, Las Vegas William S. Boyd School of Law. Serves as chairman of the BOV and Vice-Chair of the BOT for the Lewis & Clark School of Law.

Peter Bennett, Esq. Portland, MEManaging partner of The Bennett Law Firm. Graduated Harvard College with honors and Boston University School of Law and Graduate School of Management. Chair of the Standing Committee on Judicial Independence of the ABA. Past Chair of the Tort Trial and Insurance Practices Section (TIPS) of the ABA. Recipient of Numerous awards including Top 100 Most Powerful Employment attorneys in the Nation.

Alan R. Brayton, Esq. Novato, CASenior & Founding Partner of Brayton • Purcell in Novato, CA. Judge Advocate in the United States Air Force. Recognized as one of the West’s leading attorneys. Under his leadership, Brayton Purcell has become one of the premier trial firms in the western US.

Elizabeth J. Cabraser, Esq.San Francisco, CAPartner at San Francisco’s Lieff Cabraser Heimann & Bernstein. Graduated, U.C. Berkeley and Boalt Hall School of Law. Committees include the ABA’s Committee on Mass Torts, TIPS and the Federal Bar Association. Ranked as one of the 100 most influential lawyers in America.

Hon. Toni E. ClarkeUpper Marlboro, MDSeventh Judicial Circuit sitting in the Circuit Court for Prince George’s County, Maryland. Graduated, University of Maryland Frances Carey Law School and Pennsylvania State University. First African-American Female to serve as State’s Attorney for Prince George’s County. Chair of the Standing Committee on Diversity in the Judiciary, and is Chair-Elect of the National Conference of State Trial Judges of the Judicial Division of the ABA.


Hon. Larry Craddock (Ret.)Austin, TXFormer Administrative Law Judge in Texas. Graduated, University of Texas at Austin and University of Texas School of Law. Board Certified in Administrative Law by the Texas Board of Legal Specialization. Past president of the National Association of Administrative Law Judges (NAALJ); past chair of NCALJ, Judicial Division.

Hon. J. Michael EakinHarrisburg, PAJustice, Supreme court of Pennsylvania. Graduated, Franklin & Marshall College and Dickinson School of Law. Widener University School of Law adjunct professor.

Ann Thornton Field, Esq.Philadelphia, PAMember Gordon & Rees LLP. Prior to joining Gordon & Rees, Ms. Field was a partner at Cozen O’Connor and served on that firm’s Executive Committee and as Chair of the General Litigation Department. Board Member of the International Aviation Woman’s Association. Graduate, University of Houston Law Center.

Hon. J. Matthew MartinAsheville, NCAdministrative Law Judge with the Social Security Administration in Greenville, NC. Graduate, UNC School of Law and the University of Nevada, Reno. Recipient of the Livingston Hall Juvenile Justice Award, and the Franklin Flaschner Award as the Nation’s outstanding specialized Court Judge.

Tony F. Sanchez, III, Esq.Las Vegas, NVSenior Vice President of Government and Community Strategy at NV Energy. Graduate, University of Nevada, Las Vegas and Arizona State University College of Law. Vice-Chair of Nevada Partners, is on the Executive Committee of the Clark County Public Education Foundation, and serves on two Nevada System of Higher Education committees.

Walter L. Sutton, Jr., Esq.Dallas, TXAssociate General Counsel - Legal Administration and External Relations at Wal-Mart Stores, Inc. Graduate, University of Denver, university of Michigan Law School and University of Dallas. Chair of the National Bar Institute Board of Directors, ABA Diversity Center Board, the Board of Advisors of the Institute for the Advancement of the American Legal System.

Hon. John M. Vittone (Ret.)Silver Spring, MDServes on the Foreign Service Grievance Board after retirement as the chief judge of the U.S. Department of Labor. Graduate, University of Richmond and University of Kentucky Law School. Public member of the Administrative Conference of the US (ACUS); chair of the adjudication Committee for the ACUS.

Hon. Christopher T. WhittenPhoenix, AZGeneral jurisdiction trial court judge on the Superior Court of Arizona, where he serves as the Presiding Tax Judge for the State of Arizona. Graduate, University of Arizona and University of San Diego School of Law. Chair of the ABA’s National Conference of State Trial Judges; Secretary of the Board of Trustees for the Foundation for Blind Children.

Sandra S. Yamate, Esq.Chicago, ILChief Executive Officer of the Institute for Inclusion in the Legal Profession (IILP). Graduate, University of Illinois at Urbana-Champaign and Harvard Law School. Founding member of the Asian American Bar Association of the Greater Chicago Area and the National Asian Pacific American Bar Association.

NJC BoardsBoard of Trustees continued


Board of Visitors

The NJC’s Board of Visitors is a nationally recognized and select group of individuals charged with furthering the quality of education offered by the NJC. They are renowned professionals who bring a cross-section of perspectives to improve the administration of justice through education. Members also serve as goodwill ambassadors of the NJC by enhancing awareness of the College and assisting with fundraising efforts. We are proud to include the following as members of the Board of Visitors.

Robert L. Parks, Esq., ChairMiami, FLPrincipal, Law Offices of Robert L. Parks Law. Past President of the International Academy of Trial Lawyers, a Fellow in the American College of Trial Lawyers and a Fellow of the International Society of Barristers. Graduate, Georgetown University.

James R. Bartimus, Esq., Vice ChairKansas City, KCPartner, Bartimus, Frickleton, Robertson & Goza. Past president of the Civil Justice Foundation, Missouri Association of Trial Attorneys, Missouri Institute for Justice and the Kansas City Metropolitan Bar Association. Graduate, University of Missouri-Kansas City.

Jack Balagia, Esq.Dallas, TXVice-President and General Counsel, ExxonMobil Corporation. Member of the Board of Trustees of the Center for American and International Law. Past member of the Board of Directors of the Institute for Legal Reform of the U.S. Chamber of Commerce. Graduate, University of Texas at Austin.

Timothy R. DonovanLas Vegas, NVExecutive Vice President, General Counsel and Chief Regulatory & Compliance Officer of Caesars Entertainment Corporation. Director of John B. Sanfilippo & Son Inc. Former director of Allied Waste Industries, Renowned Auto Products Manufacturers Ltd, and a member of the American and Chicago Bar Associations. Graduate, Capital University.

A. Clifford Edwards, Esq.Billings, MTPartner, Edwards Frickle & Culver. Secretary-Treasurer of the International Academy of Trial Lawyers, member of the American College of Trial Lawyers and chapter member of the American Association for Justice. Graduate, University of Montana.

Stephen F. English, Esq.Portland, ORPartner, Perkins Cole LLP. Member of the International Academy of Trial Lawyers (IATL), state co-chair of the international branch of IATL and Fellow of the American College of Trial Lawyers. Graduate, Hastings College.

Hon. Sophia H. HallCook County, ILJudge Hall is the Administrative Presiding Judge of the Resource Section of the Juvenile Justice and Child Protection Department of the Circuit Court of Cook County, IL. She was the chair of the NJC Board of Trustees in 2012. In 2014, she established a named scholarship endowment to benefit Illinois judges. Graduate, Northwestern University School of Law.

John L. Holcomb, Esq.Tampa, FLShareholder, Litigation Group, Hill Ward Henderson. Former past president, national secretary and vice president for American Board of Trial Advocates (ABOTA) and current member of the Litigation Counsel of America and the International Association of Defense Counsel. Graduate, University of Florida.

William H. Hurd, Esq.Richmond, VAPartner, Troutman Sanders. Former Solicitor General of Virginia, current Adjunct Professor at George Mason School of Law, served on the 2011 Independent Bi-partisan Advisory Commission on Redistricting. Graduate, University of Virginia.


Irwin A. MolaskyLas Vegas, NVChairman, The Molasky Group of Companies. Founder/former senior officer, Lorimar Productions, prolific real estate developer who built Sunrise Hospital Surgical Center & Medical Center, Las Vegas’ first private hospital. UCLA alumnus.

John H. Mowbray, Esq.Las Vegas, NVManaging Director of the Las Vegas office of Fennemore Craig. Past president of the State Bar of Nevada where he served on the Board of Governors for seven years, chaired the State Bar of Nevada’s Multijurisdictional Practice Committee and served on the Nevada Supreme Court’s Multijurisdictional Practice Committee. Graduate, J.D., University of Notre Dame.

J. Edward Neugebauer, Esq.Philadelphia, PAHead of Litigation, Aetna, Inc. Former health care litigator in the Washington D.C. office of Epstein Becker and Green. Member of the Oklahoma, Virginia and Pennsylvania bars. Graduate, University of Oklahoma.

Peter Chase Neumann, Esq.Reno, NVSenior Partner, Peter Chase Neumann. Past president of Tucson Trial Lawyers and Nevada Trial Lawyers Associations. Diplomat and past president of ABOTA, Reno Chapter. Graduate, University of Arizona.

Charles E. PattersonLos Angeles, CASenior Counsel, Morrison & Foerester, LLP. Fellow of the American College of Trial Lawyers, Diplomat of the American Board of Trial Advocates, & Fellow of the International Society of Barristers. Graduate, University of Michigan.

James W. Quinn, Esq.New York, NYFormer chair of Global Litigation, Weil, Gotshal & Manges, LLP. Fellow of the International Academy of Trial Lawyers & the American College of Trial Lawyers. Member of the International Society of Barristers. Graduate, Fordham.

Marsha J. Rabiteau, Esq.Alexandria, VAExecutive Director, Legal Policy Strategies Group. Present or past leadership/board member of State Justice Institute, Civil Justice Reform Group, Product Liability Advisory Council, American Tort Reform Association, International Association of Defense Counsel and the Institute for Legal Reform. Graduate, Marquette.

Patricia K. Rocha, Esq.Providence, RIShareholder, Adler Pollock & Sheehan, P.C. Former Member and Chair, Federal Board of Bar Admissions for the U.S. District Court for the District of Rhode Island. Fellow, American College of Trial Lawyers & International Academy of Trial Lawyers. Graduate, Boston College.

Hon. James D. Rogers (Ret.) Minnetonka, MNJames D. Rogers served 32 year as a Judge in the Fourth Judicial District of Minnesota and is a founding member Forest Landowners Tax Council Board of Directors. Former chair and member The National Judicial College Board of Trustees. Graduate, University of Minnesota.

NJC BoardsBoard of Visitors continued

The NJC’s Model Courtroom


Faculty Council

NJC Faculty Council members help ensure that quality teaching standards are maintained and that the curricula offered are relevant, challenging and invigorating to the College’s participants. There are ten members on the Faculty Council who serve on staggered three year terms. The members of the Faculty Council continue to recognize the outstanding efforts of the College’s volunteer faculty through hosted faculty receptions and dinners, commemorative awards, faculty development workshops for in-person and distance education programs, and special recognition for NJC outreach efforts.

Hon. Don R. Ash, ChairMurfreesburo, TNSenior Judge for the state of Tennessee. Graduate, Middle Tennessee State University, University of Memphis and University of Nevada, Reno. Served as faculty at NJC since 2001. Authored over 40 appellate opinions.

Hon. Andre M. Davis, Immediate Past ChairBaltimore, MDAppointed to the U.S. Court of Appeals, 4th Circuit after being nominated by President Barack Obama. Graduate, University of Pennsylvania and University of Maryland School of Law. Served as faculty at NJC since 1994. Traveled to Kazakhstan and Kyrgyzstan to teach economic criminal law for the NJC.

Hon. Steve L. Smith, Chair-ElectBryan, TXJudge of the 361st District Court in Bryan, TX. Graduate, Abilene Christian University and University of Texas School of Law. Served as faculty at NJC since 2003. Past chair of the ABA Judicial Division’s National Conference of Specialized Court Judges and the Judicial Section of the State Bar of Texas.

Hon. Jennifer Gee, SecretarySan Francisco, CADistrict chief judge with the U.S. Department of Labor Office of Admin Law Judges in San Francisco, CA. Graduate, University of California at Berkeley and University of California Berkeley School of Law. Served as faculty at NJC since 1994. Past president of California/Nevada Women Judges.

Hon. Toni T. Boone (Ret.)Portland, ORServed 29 years as an administrative law judge in Arkansas and Nevada until her retirement in 2014. Graduate, University of Arkansas. Served as faculty at NJC since 2000. Serves on National Association of Hearing Officials Board of Directors.

Hon. Elbridge Coochise (Ret.) Phoenix, AZOwner and operator of Coochise Consulting, LLC. Served as faculty at NJC since 1993. Helped establish three Tribal courts (CT, IA, and CA). Member of the Advisory Council to The National Tribal Judicial Center at NJC.

Hon. Jane D. FishmanPlantation, FLServes on the bench of the Broward County Court, Plantation, Florida. Graduate, University of Pittsburgh and Brooklyn Law School. Served as faculty at NJC since 2006. Chair of civil education for the Conference of County Court Judges for the state of Florida.

Hon. William G. KellyKentwood, MIServed as judge of the 62-B District Court in Kentwood, Michigan since 1979. Graduate, University of Detroit and University of Detroit School of Law. Served as faculty at NJC since 2001. Served as a member of the board of directors of the National Center for State Courts.

Hon. Daniel P. Ryan, J.D., Ph.D.Detroit, MIGeneral jurisdiction judge for the 3rd Judicial Circuit Court in Detroit, MI since 1998. Graduate, University of Detroit, University of Notre Dame Law School and University of Nevada, Reno. Served as faculty at NJC since 1996. Author of two books and numerous law review articles.

Hon. V. Lee Sinclair, Jr. Canton, OHServed as a judge for Stark County Common Pleas Court in Canton, Ohio since 1995. Graduate, Kent State University and University of Akron School of Law. Served as faculty at NJC since 2002. Co-author of “Handling Capital Cases,” “Law Enforcement Officer’s Guide to Juvenile Law,” “Banks Baldwin Domestic Relations Law.”


A Message from the Director of Development/CommunicationsThis issue of Case in Point focuses on the future of justice, and though I am new to The National Judicial College, I can already see that everyone here is intensely focused on the future of judicial education.

I arrived on campus in February and was immediately impressed by the professional academic staff and the enthusiastic and competent Development/Communications team.

A very dedicated Board of Directors and Board of Visitors are partnering with me to increase philanthropic support of the NJC to further our strategic goals.

Over the past few months, I have had the pleasure of getting to know many of the NJC’s supporters. All are proud to invest in our robust educational organization that serves nearly 10,000 members of the judiciary annually.

Thank you for support, which is vital to the NJC’s mission of education – innovation – advancing justice.

2014 DonorsSpecial Recognition Donors ($100,000 +)

American Bar AssociationState of NevadaLaura and John Arnold FoundationHon. Marilyn H. Loftus (NJ)

Tom C. Clark Pinnacle Circle ($25,000 +)

Chevron Corporation

ExxonMobil Corporation

Hon. Sophia H. Hall (IL)

NV Energy Foundation

The E. L. Cord Foundation

William N. Pennington Foundation

Tom C. Clark Founder’s Circle ($10,000 - $24,999)

Anonymous (1)Chubb & Son, Inc.International Academy of Trial Lawyers FoundationJ. F Maddox Foundation

The Kaul FoundationM. R. Bauer FoundationRawle & Henderson, LLPRobert Z. Hawkins FoundationSouth Carolina Bar FoundationThe John Ben Snow Memorial Trust

President’s Circle ($5,000 - $9,999)

AetnaAmerican Board of Trial Advocates

Barrick Gold CorporationBartimus, Frickleton, Robertson & GozaDavid J. Beck, Esq. (TX)Elizabeth J. Cabraser, Esq. (CA)Caesars EntertainmentA. Clifford Edwards, Esq. (MT)Ann Thornton Field, Esq. (PA)Helen Roberti Charitable TrustJohn L. Holcomb, Esq. (FL)Samuel S. Lionel, Esq. (NV)Lionel Sawyer & CollinsMcDonald Carano Wilson LLPRobert L. Parks, Esq. (FL)Hon. and Mrs. V. Robert Payant (WI)Patricia K. Rocha, Esq. (RI)The Charles H. Stout Foundation

Mr. and Mrs. Saul A. Wolfe (NJ)Wynn Resorts, Limited

Diamond Gavel Circle ($2,500 - $4,999)

American Bar AssociationLydia I. Beebe (CA)Hon. Gary L. Clingman (NM)Hon. William Edelman (WY)Gabelli Foundation Inc.Prof. Ronald R. Hofer (WI)

Irwin and Susan Molasky (NV)Peter C. Neumann, Esq. (NV)William T. Robinson, III, Esq. (KY)Matt Sweeney, Esq. (TN)

Platinum Gavel Circle ($1,000 - $2,499)

Anonymous (1)Mr. and Mrs. Albert R. Abramson (CA)Baker, Donelson, Bearman Caldwell & Berkowitz, PCJack Balagia, Jr., Esq. (TX)Marybel Batjer (NV)Edna B. Benna (NV)Peter Bennett, Esq. (ME)Javade Chaudhri, Esq. (DC)Chevron Humankind Matching Gift ProgramColorado Judicial Institute

Donors


Hon. Larry J. Craddock (TX)Hon. Michael Eakin (PA)Hon. Ana Lisa Garza (TX)Rew R. Goodenow, Esq. (NV)Greenberg Traurig, LLPHon. Karl B. Grube (FL)Hon. Procter R. Hug, Jr. (NV)Hon. Karen L. Hunt (Ret.) (AK)Peter J. Neeson, Esq. (PA)Dale K. Raggio (NV)Hon. James D. Rogers (Ret.) (MN)Hon. Alexander M. Sanders, Jr. (Ret.) (SC)Phil and Jennifer Satre Family Charitable Fund at the Community Foundation of Western NevadaHon. and Mrs. Chad C. Schmucker (NV)John A. Tarantino, Esq. (RI)Wells Fargo FoundationHon. Douglas G. White (TN)Bruce D. Gesner, Ph.D. & B. Phyllis Whittiker, Esq. (NV)

Crystal Gavel Circle ($500 - $999)

Hon. and Mrs. James G. Blanchard, Jr. (GA)Mr. and Mrs. William J. Brunson (NV)James E. Coleman, Jr., Esq. (TX)Hon. and Mrs. Patrick Flanagan (NV)Robert Gabrielli (NV)Hon. and Mrs. Robert C. Halbritter (Ret.) (WV)Mr. and Mrs. Ed Lyngar (NV)Hon. James B. Malloy (IA)Hon. Matthew Martin (Ret.) (NC)Hon. William G. Meyer (CO)Mr. and Mrs. Carl Naumann (NV)Albert Pagni, Esq. (NV)Hon. and Mrs. Earl G. Penrod (IN)Hon. Jerome M. Polaha (NV)Hon. James M. Redwine (IN)Tony F. Sanchez, III (NV)Gretchen and Thomas Sawyer (NV)Mark G. Tratos, Esq. (NV)Douglas Unger (NV)Hon. John M. Vittone (Ret.) (MD)Hon. J. Scott Vowell (Ret.) (AL)Katheryn Yetter, Esq. (NV)

Golden Gavel Circle ($250 - $499)

Aetna FoundationHon. Neil E. Axel (Ret.) (MD)Muriel M. Bartlett (NV)Hon. Linda M. Billings-Vela (CO)Hon. Archie E. Blake (NV)Hon. Todd Blomerth (TX)Dan W. Bolton, III, D.O., J.D., LLM (NV)Hon. Toni T. Boone (Ret.) (OR)Hon. George H. Boyett (TX)

Hon. E. Maurice Braswell (Ret.) (NC)Hon. Cynthia L. Brewer (MS)Hon. Michael J. Cassidy (VA)Hon. Marc A. Cianca (FL)Hon. Joseph E. Cirigliano (OH)Hon. Richard Cisneros (TX)Hon. Jess B. Clanton (OK)Hon. Toni E. Clarke (MD)Hon. Jim Davidson (MS)Hon. Andre Davis (MD)Hon. Mark R. Denton (NV)Hon. and Mrs. Samuel G. DeSimone (Ret.) (NJ)Hon. Jane D. Fishman (FL)Hon. Kevin L. Fitzwater (NM)Friends of Marybel BatjerHon. Nancy A. Fuerst (OH)Hon. Stephen S. Goss (GA)Hon. Denis E. Guest (IL)Hon. George N. Hardesty, Jr. (AL)Kim D. Hogrefe, Esq. (NJ)Hon. Michael D. Jacobs (CA)Hon. James E. Kelley (Ret.) (IA)Hon. Jeffery W. Kelley (AL)Hon. John W. Kennedy, Jr. (CA)Irwin Kishner, Esq. (NV)Hon. David M. Krashna (CA)Hon. Thomas J Lanphear (GA)Hon. Gregory G. Lyman (CO)Hon. Charles M. McCullough (WA)Marilyn R. Melton (NV)Hon. Melvin M. Menegat (OR)Hon. William F. Morgan (PA)Hon. James A. Morrow (MN)Hon. Lewis Nixon (IL)Jack H. Olender, Esq. (DC)Hon. Steven D. Olmstead (WY)Hon. George M. Peagler, Jr. (GA)Hon. and Mrs. Guy D. Pfeiffer (GA)Dr. Kenneth D. Robinson (TN)Hon. Robert E. Rose (NV)David A. Sellers (VA)Hon. David L. Shakes (CO)Glenna J. Sheveland, Esq. (NC)Hon. and Mrs. Olin W. Shinholser (FL)Hon. and Mrs. Michael A. Silverstein (RI)Thomas E. Spahn, Esq. (VA)Hon. James O. Spence (SC)Hon. Keith Starrett (MS)Hon. Philip S. Straniere (NY)Hon. Tracie A. Todd (AL)Hon. Jerry M. Vanderhoef (AL)Nancy Neal Yeend (CA)Gordon I. Zimmerman, Ph.D. (NV)

2014 Pillars Of Justice

Freedom Circle ($25,000 +)

Chevron Corporation Liberty Circle ($15,000 +)

Chubb & Son, Inc.

Justice Circle ($10,000 +)

McDonald Carano Wilson LLP Honor Circle ($5,000 +)

Barrick Gold Corporation

McDonald Carano Wilson LLP

Rawle & Henderson, LLP

Honorable Mention Donors to Pillars Of Justice Fund

Hon. Chad C. Schmucker (NV)

2014 Circle of Justice Members

Mr. and Mrs. Ed Lyngar (NV)Hon. Jerome M. Polaha (NV)

In Honor of

In Honor of Hon. Neil E. AxelEdith A. Weiner (NY)

In Honor of William C. BunchHon. Thomas M. Ammons, III (VA)

In Honor of Thomas CapshawHon. Carol A. Eckersen (CA)

In Honor of Kathryn J. EdelmanHon. William Edelman (WY)

In Honor of Karl B. GrubeRonald Jansen, Esq. (IL)

In Honor of Marie MarinoHon. Bruce S. Mencher (DC)

In Honor of Joe N. PigottHon. Keith Starrett (MS)

In Honor of Mary L. RadcliffeHon. Leslie A. Wagner (WA)


In Honor of Gareth RosenauMr. Emmanuel Horowitz (VA)

In Honor of Christiane Freifrau v d. TannHon. Juergen Maruhn (Germany)

In Honor of John M. VittoneMr. and Mrs. Stephen Malphrus (MD)

In Memory of

In Memory of David B. Babbitt Hon. Philip T. Kyle (Ret.) (KS)

In Memory of Charles A. Brewer Hon. Cynthia L. Brewer (MS)

In Memory of Lura B. Caldwell Marybel Batjer (NV)

In Memory of Michael B. CalvinHon. Charles A. Shaw (MO)

In Memory of Clifford J. Cawley Hon. Mary Jacobson (NJ)

In Memory of Catherine E. Connolly Hon. Thomas E. Connolly (MA)

In Memory of John V. CorriganHon. Colleen Conway Cooney (OH)

In Memory of William H. Erickson Prof. Henry R. Reeve (CO)

In Memory of Richard D. GalstadHon. Marsha Bergan (IA)

In Memory of George H. Garrett Hon. Robert L. Childers (TN)

In Memory of Jim Goode Hon. Jesse Goode (DC)

In Memory of Elmer “Al” M. Gunderson Peter C. Neumann, Esq. (NV)

In Memory of Frances H. Hicks Hon. George G. Hicks (ID)

In Memory of Dick Jermen Hon. Robert L. Childers (TN)

In Memory of William H. McDermott Hon. Michael A. Youngpeter (AL)

In Memory of John F. Mendoza Tony F. Sanchez, III (NV)

In Memory of Barbara Poplin Hon. Jess B. Clanton (OK)

In Memory of William J. RaggioDale K. Raggio (NV)

In Memory of Homer Salinas Hon. Bobby Flores (TX)

In Memory of Donald P. Smith Marjorie G. Smith (CO)

In Memory of Gerald Svetanoff Hon. and Mrs. E. Duane Daugherty (IN)

In Memory of Edith A. Weiner Hon. Neil E. Axel (Ret.) (MD)

In Memory of Gordon E. White Hon. Douglas G. White (TN)

In Memory of Jim Williams Hon. Duane R. Harves (Ret.) (MN)

In Memory of Robert A. Wright Hon. Nathaniel Nichols (PA)

2014 Donors to the William F. Dressel Scholarship Endowment

American Bar AssociationChevron Humankind Matching Gift ProgramColorado Judicial InstituteRew R. Goodenow, Esq. (NV)Rawle & Henderson, LLPHon. Frederic B. Rodgers (Ret.) The Phil and Jennifer Satre Family Charitable Fund at the Community Foundation of Western NevadaGretchen and Thomas Sawyer (NV)

Donors


From the Archives

Justice William A. Grimes“Tough, bright… inspiring. Retired Chief Justice William Grimes has been

teaching in the College’s largest course, General Jurisdiction, for 35 years. It is safe to say he has touched the lives of more judges in America than any other person.”

So went the opening paragraph of the cover article of the Summer 1998 NJC Alumni magazine featuring Justice William A. Grimes and his wife, Barbara. Justice Grimes had been a member and Chief Justice of the New Hampshire Supreme Court following a 20-year career as a trial judge. He was also a charter faculty member of the NJC who ended up teaching 120 courses in his lifetime. He was very active with the American Bar Association, becoming chair of the Appellate Judges Conference and running its Appellate Judges Seminar series for many years.

Why are we featuring Justice Grimes today even though he passed away in 1999 (and Barbara died in 2005)? Because he established a legacy gift at the NJC. In his will, Justice Grimes created The Chief Justice William A. Grimes Criminal Law Outline Endowment Fund. Gifts in memory of Justice Grimes were added to enhance the fund. The Criminal Law Outline was published annually by the College and Justice Grimes served as its author. He had started the Outline as a quick reference guide to judges who often had to make snap decisions on due process, search and seizure and other thorny issues. He read every case issued by the U.S. Supreme Court — every case — each year to fund any guidance on topics covered in the Outline. It was a labor of love. So it was no surprise that he designated the endowment fund to preserve the Outline to educate future generations of appellate court judges. However, the College ceased publishing the booklet after 2008.

“When I came on board, I became aware a few endowment funds had become idled in recent years,” said NJC President Chad C. Schmucker, who became president of the NJC in January 2014. “The investment income continued to accrue but the proceeds weren’t being used. When I looked at the Grimes Fund situation, it was clearly

a victim of technology.”The publication’s demise was due in part to the trend

of print publications moving to online platforms. More critically, noted Schmucker, the content of the Criminal Law Outline could be readily found on both fee-based Internet services such as Westlaw and Lexis, and also on some free websites. As a result, the NJC sought to re-purpose the Grimes endowment from a publication fund

while still retaining the endowment’s original intent: that it benefit state and federal appellate judges and that the name William A. Grimes remain perpetually associated with the fund.

“It is a testament to Justice Grimes that he had the foresight to know something like this might occur so he provided for an alternative use of the endowment for appellate judge education,” said President Schmucker. “We are following his intent and direction in creating the William A. Grimes Appellate Judge Scholarship.”

“The Grimes family is thrilled that our father’s legacy will continue to

be attached to a fund for appellate judge education,” said Gordon F. Grimes, Justice Grimes’ son and an attorney with Bernstein Shur Sawyer Nelson in Portland, ME. “The College was one of his great passions so we are pleased that this fund will be used in his memory.”

Justice Grimes’ daughter, Gail Terry Grimes, a writer who started her career at the NJC, added: “If we could sum up what our father stood for, it would be a sense of fairness. He loved the College and he would have loved knowing that more judges would have access to it through these scholarships.”

— Bob Gabrielli

The NJC plans to award the first William A. Grimes Appellate Judge Scholarship in 2015-16.

1664 N Virginia St / MS 358Reno, NV 89503-0705

www.judges.org

2015-2016

E D U C A T I O N | I N N O V A T I O N | A D V A N C I N G J U S T I C E

who is elected or appointed to judicial o�ce

“No judge

aspires to be average.”

— Hon. Andre M. DavisU.S. Court of Appeals, 4th CircuitNJC faculty member since 1994

The National Judicial College has produced a brief video called “Making the Case for The NJC Experience.”

The video features Faculty Council members Judge Andre Davis, Judge Jennifer Gee and Judge Jan Morris

discussing the importance of continuing education for judges and the vital role the NJC plays in improving

the nation’s judiciary. To view the video, please visit www.judges.org/giving.

Documents

Case in Point 2015-2016