Kembra Smith and I attended the combined annual meeting of the Appellate Judges Conference (AJC) Executive Board and the Appellate Judges Education Institute (AJEI) held at the Omni Mandalay Inn Hotel on November 11, 2004.

The AJC met first followed immediately thereafter by the AJEI. As most everyone knows by now, there is a substantial overlap in the membership of the two Boards. To be more precise, virtually all members of the AJC are also on the AJEI. In addition, Justice Enoch (now in private practice) is a member of the AJEI as is Dean Attanasio. William T. Robinson, III (ABA Treasurer-Elect) and Judge John Vittone (Chair of the Justice Center) are the two AJEI members from the ABA Board of Governors. Neither Bill nor Judge Vittone attended the Dallas meeting.

Others at the meeting as representatives of specific entities were: Council of Chief Judges of the Courts of Appeals (CCJCA) Chair John Irwin, Nebraska Court of Appeals; Council of Appellate Lawyers (CAL) Chair Charles "Chuck" Cole, Steptoe & Johnson; AJEI President retired Justice Craig Enoch, Winstead, Sechrest & Minick; and AJEI board member/SMU Dedman School of Law Dean John Attanasio. Others in attendance who had input at the meeting included AJEI Program Chair retired Justice Harry Lemmon, Louisiana Supreme Court, and AJEI/SMU staff Rebecca Greenan, Rebekah Bell, and accountant Roland Webb.

AJC Meeting

The meeting began with an approval of the minutes from the last meeting in Atlanta. The next topic was the nomination of the Vice Chair to the Judicial Division. This individual liaises closely with the ABA Board of Governors. It appears to be an important position in terms of budgetary issues. Judge Wynn from the North Carolina Court of Appeals received a unanimous vote as the new JD Vice Chair. (CASA members will remember that Judge Wynn was one of the speakers on our Judicial Independence Panel.) Judge Wynn agreed to serve.

The next topic related to the business of the AJC Nominating Committee. There was nothing of relevance to CASA in this section of the meeting.

Paula Nessel gave the AJC membership update. The ABA is trying to get a better handle on membership and in particular by identifying the arm of the Judicial Division and, if appropriate, the arm of the AJC in which various individuals are registered. To that end, the ABA has prepared a new membership form, which better delineates the particular Conference and Council that the members are joining.

Judge Hartz raised the next issue. He noted that there must be better communication between the AJEI and the AJC. He asked that in the future for all general correspondence, whether sent by regular mail or e-mail, the sender copy both Paula Nessel and Rebecca Greenan. Everyone agreed that this proposal made sense.
The next topic area was committee reports. Each arm of the AJC gave its report. Judge Hartz of the AJC spoke first. He commented on how wonderful the AJC list serve has been. He noted that this list serve enables Judges to be kept informed of issues at the ABA and gives appellate judges the opportunity to play a role in ABA policy making. Judge Hartz cited the issue of the attorney-client privilege and the desire of judges to play a role in evaluating ABA proposals. The Council of Chief Judges of Courts of Appeal gave their presentation next.

CAL spoke next. They noted that one of their representatives secured $16,500 from Texas law firms for the kickoff. (This was money raised separately from money raised by the Dedman School of Law staff). CAL also discussed other issues that have little relevance to CASA.

I then gave CASA's presentation. At this point in the meeting everyone from the AJEI, including Dean Attanasio, had arrived. I began by handing out a one and one-half page report on CASA's relationship with the AJC and the AJEI and a brief report on the successful Park City Conference. I indicated that we had recently completed our Executive Board Meeting at the Mandalay and were preparing to go forward with our annual seminar this summer in Dallas. I thanked Rebecca Greenan and Rebekah Bell for their excellent assistance at Park City.

The next topic was the budget. As I recall, Judge Hartz indicated that there are three main accounts from which the AJC can draw. $60,000 is from the ABA general revenue and is reserved for governance expenses, i.e., meetings and programs. A second source of revenue is another $25,000 from ABA general revenue that is designated for the Appellate Judges Seminar Account (also known as the Spencer-Grimes account. Although the amount allocated in fiscal year 03-04 was $28,000, the account was overspent by $76,816 of which about $57,000 paid for job separation expenses for Sandy Roos, who had staffed the Spencer-Grimes seminars while working for the ABA. The other source of revenue is from the Judicial Improvement Fund (JIF). This fund has a balance of slightly over one million. The AJEI can draw five and one-half percent each year for education programs. AJEI drew $50,156 from the JIF account at the end of August for FY03-04.

AJEI Meeting

By this time in the evening, the combined meetings had gone well beyond the allotted time and, as expected, the AJEI meeting began with a flurry. Justice Enoch started the meeting and passed out a very brief agenda. The Council of Chief Judges gave another brief oral report (nothing in writing). Charles Cole of CAL gave a very quick presentation. Judge Enoch praised retired Louisiana Court of Appeals Judge Harry Lemmon for his work in setting up the Education Program for the kick off seminar. Judge Lemmon, for you that may not know him, was apparently the principal planner for many Spencer Grimes educational programs held before the AJEI took over.

The bulk of the meeting was the financial report. Judge Enoch handed out a summary account of the AJEI financial picture. He conceded from the outset that both revenues and expenses were not fixed. For example, on the revenue side, it looks like there will be a little more money based on the contributions brought in by CAL. Suffice it to say that while the kickoff would be ending up in the black after all is said and done, it was not going to make a profit or anywhere near come up with the kind of money to offset the so called "soft costs," the SMU administrative costs. (We tend to think about these administrative costs as Rebecca and Rebekah's salary; Justice Enoch described this money as about twenty percent of the salaries of four people at SMU who worked on four separate programs. Justice Enoch did not view the kickoff as one seminar but three separate seminars because: (1) the Chiefs stayed at a different hotel; and (2) each group -- the Chiefs, the Appellate Judges and CAL -- had considerable separate programming.) Judge Enoch reported that he thought that the AJEI would make about $22,000 on the kickoff. He estimated the Law School Administrative Expenses at $77,500 per year. Dean Attanasio indicated that these figures were very low. These "administrative expenses" are the kind of expenses that Justice Enoch says we could never get a handle on when we were working directly with the ABA. We are nowhere near being able to pay back SMU the $150,000 that it has forwarded for the first two years of the AJEI's existence. One thing that was eye opening about Justice Enoch's presentation was the amount of scholarships given out at this kick off Seminar. Justice Enoch indicated that the Institute awarded forty-one scholarships. Each scholarship attendee was given $250 lodging, $250 airfare and a full tuition waiver. These scholarships were funded with monies from the JIF 5.5% draw down that the ABA forwarded to the AJEI in August. The Federal Judicial Center contributes scholarship income to the AJEI. Justice Enoch noted that there might be limited SJI funds still available for specialized technology related programs. Justice Enoch indicated that it will be difficult to secure SJI funding but the AJEI is going to do its best to secure something.

Dean Attanasio finally spoke in the last 10 minutes of the meeting. He was clearly surprised at some of the things that Justice Enoch had said. The Dean indicated that he was hoping to make $100,000 and that the AJEI would only be making about $22,000. This result was very disappointing to the Dean and he indicated that the outlook was not good. At this point, the meeting took a noticeable downward track from CASA's point of view. The Dean indicated that CASA should no longer expect an independent seminar. Rather than being pleased with CASA's performance at Park City, the Dean seemed genuinely upset that CASA went forward to hold its annual Seminar this summer instead of joining the kickoff. To the Dean, money is the bottom line and he admitted as much at the meeting. Speaking not just to CASA but also to all the arms of the AJC, the Dean indicated that "ground rules must be established" if the Dedman School of Law funding is going to continue. He encouraged all groups including CASA to join forces for annual seminars. He expects that they be in Dallas every other year. He indicated the best time for the Seminars was in the months of October (or early November) or March (or early April) when the Law School is in regular session. Summer seminars, said the Dean, do the law school little good. According to the Dean, our summer seminar is just saving on Rebecca's and Rebekah's travel costs, but it is not really what SMU wants. What SMU really wants is CASA giving up its desire for an annual summer seminar, even though the Dean professes to have a soft spot for the "family reason" why CASA usually holds a seminar during the summer months. The Dean asked for each group to send a representative to a separate "task force" meeting to decide on what each of the various Conference arms were willing to give up in an effort to try to save costs. The meeting then adjourned around 6:30 p.m.

After Reception Break out Meeting

After a 10 minute break for the regular kickoff opening reception, Kembra and I went back to the meeting room to negotiate with a representative from each of the AJC Councils to decide how each group could cut costs and to work out some rough details about the next educational seminar. This "break out" Committee was headed by Judge Rosemary Sackett of the Iowa Court of Appeals. Judge Sackett asked each group to briefly state their case, say what they wanted and say what they would be willing to give up. Kembra and I both spoke for CASA. I indicated that CASA desires to maintain a summer seminar, and we explained the reasons for our need for a seminar in the summer. We indicated that we have no objection to having CAL members or appellate judges attending our seminar and in fact we like to have judges in residence if the budget allows this. We indicated that we would consider using scholarship money for judges in residence if necessary. Kembra and I agree that we could probably cut expenses associated with the Education Committee meeting in the fall to plan the following year's seminar. We indicated that we might be able to do that by conference call or by meeting at the previous summer's seminar. Alternatively, the Executive Board Members may also need to be Education Committee members and use the governance expenses from the Executive Board meeting (paid from ABA funds) to save money by holding the Education Committee meeting at the same time as the annual Executive Board meeting.

Judge Lemmon then gave a presentation for Spencer Grimes seminar series. Judge Lemmon indicated how much the series has brought in and how little it has taken out. He said that the AJC had agreed to cancel the Spencer Grimes seminars pending this kick-off, but that it would like hold these seminars once or twice a year.

The CAL people want to continue to meet with the Judges. They do not want an independent seminar. The time of year in which the seminar is held is not a big issue for the CAL people, but an attractive location is important. They would cut costs by encouraging as much overlapping in the program, as the other groups would allow. They do not really need separate programs for lawyers only. They liked the idea of going to San Francisco in the Fall of 2005.

The "Chiefs" wanted to maintain a separate Education Committee and be reimbursed for that. Judge John Irwin from Nebraska indicated that he was a "moderate" and that he was getting pressure from other more independent minded Chief Judges in the group. The Chiefs indicated that meeting in the summer would not work for them. The Chiefs agree that CASA should have an independent Summer Seminar, but they do not know how to pay for it.

After all four groups spoke, Rebecca indicated that if the Judges wanted a seminar for 2005, they need to move now because all AJEI seminars are co-sponsored by the ABA and ABA approval must be secured well in advance. Deadlines were discussed. Rebecca indicated that CASA has done all its work and is on the ABA agenda to approve the Dallas 2005 Seminar. After much wrangling, The Chiefs, the other judicial members of the AJC and CAL decided to shoot for a fall 2005 Seminar to be held in San Francisco in October. "The Rebeccas" are going to trying to find a good date. Everyone agreed with the Dean that the first weekend in October is out because there is a desire to get a Justice of the United States Supreme Court and the Dean indicated that would be impossible on the first Monday in October. It turned out that CAL, the AJC and The Chiefs will each be sending two representatives to Dallas in January to speak to the law students and then hold a meeting to try to iron out details for a seminar this fall in San Francisco. The Chiefs appear ready to concede their need to stay in a separate hotel, but they want to maintain at least one and preferably one and a half days of separate programming.

As this meeting continued, Rebecca Greenan flatly conceded that CASA is approved to come to Dallas this summer. Although the Dean earlier in the evening would not make this concession, he did not object when Rebecca made this statement.
The Dean then spoke about how he is "on board" to try to work out, arrange and fund a combined AJC, Chiefs and CAL meeting Seminar for the fall in San Francisco at the Omni. He then addressed what he referred to as the "CASA problem." This problem, Dean Attanasio indicated, was a difficult one to solve. He had two problems with CASA's need for an independent Seminar. The first he described as the "cartel problem." He indicated that in any cartel, once one member leaves, solidarity is broken and others will leave. He was pretty clearly upset with CASA's perceived threat to leave the AJEI, not because he did not want to see appellate staff attorneys without a home, but because CASA leaving might mean the Chiefs would leave and this is the one group in the AJC that the Dean really cares about.

The second problem identified by the Dean was the so-called economies of scale issue. Separate seminars for separate AJC entities is not what SMU expected to fund.
Rebecca Greenan then brought up CASA's request for honoraria. The Dean flatly said no honoraria. We mentioned Brian Garner's request for honoraria and that we wanted to use him because there would be no travel expense. The Dean said that the AJEI will not pay honoraria and asked that CASA drop this request. The Dean indicated that no honoraria were paid during the kick off seminar.