July 01, 2014

The Founding of the Appellate Judges Conference and the Appellate Judges Education Institute

By Justice Frank Sullivan Jr.

The inaugural meeting of the Appellate Judges Conference (AJC) took place in New York on August 9, 1964. This formality was the culmination of more than two years of planning and hard work by a dedicated group of judges and ABA employees under the auspices of the ABA Section of Judicial Administration (Section), the predecessor of today’s Judicial Division.

The idea for creating the AJC can be credited to two separate sources. The first in time was contained in a May 10, 1962, letter from Wisconsin Supreme Court Justice E. Harold Hallows to the Section in which he recommended forming an association for associate justices of state courts of last resort. Several months later and independent of Justice Hallows’s proposal, New Jersey Superior Court-Appellate Division Judges Edward Gaulkin and Gerald T. Foley recommended to Sylvester C. Smith Jr., of their state, the president-elect of the ABA, establishing an organization for judges of intermediate appellate courts. Both of these proposals were grounded in the fact that there was no formal bar entity that provided a home for or supported the work of appellate judges who were not eligible for membership in either the Conference of Chief Justices or the National Conference of State Trial Judges.

On the impetus of Hallows’s proposal, the Section Council at its August 1962 meeting had appointed a study committee chaired by Chief Justice William M. McAllister. When Smith forwarded Gaulkin and Foley’s proposal to the Section as well, the mandate of the McAllister committee became to study the idea of forming an organization for both associate justices of state courts of last resort and judges of intermediate appellate courts.

The McAllister committee soon ascertained that the Conference of Chief Justices did not favor expansion to include the judges in question, nor was the State Trial Judges Conference willing to accept them as members. The committee therefore recommended, and the Section Council at its February 1963 meeting authorized, polling associate justices of state courts of last resort and judges of intermediate appellate courts to determine whether there was sufficient interest among them to warrant the formation of a new organization. Of the 542 questionnaires mailed in this May 1963 survey, 168 judges replied. Out of these, 118 favored the formation of the new organization. Based upon this response, the McAllister committee recommended to the Section that a select committee be formed to plan and guide the formation of a new appellate judges association.

Accordingly, the Section chair, Judge Ivan Lee Holt Jr., invited six associate justices of state supreme courts and six judges of intermediate appellate courts to meet at the 1963 ABA Annual Meeting. At its meeting in August, the Section Council approved establishing and Judge Holt appointed an organizing committee of eight judges chaired by Judge Gerald F. Flood. Soon thereafter, Flood circulated drafts of a proposed constitution and bylaws, in response to which committee member Judge George W. Hardy Jr. made the enduring suggestion that the new entity be called the “Appellate Judges Conference” rather than “Association” or “Institute,” the other titles proposed.

An October 1963 organizing committee meeting in New York City adopted a draft of bylaws to be proposed at the first meeting, along with a suggested budget.

This meeting was notable in two other respects. First, the planning committee established a program committee, chaired by Gaulkin, to organize and conduct substantive educational programs at the new conference’s meetings. Second, the planning committee included in its deliberations Delmar Karlen, director of the Institute of Judicial Administration (IJA), and Professor Robert A. Leflar, director of the IJA’s annual summer seminar for appellate judges, who agreed to work closely with the new conference in organizing and staging the annual IJA appellate judges seminar. (The IJA had been founded at the New York University School of Law in 1952 by that school’s former dean Arthur T. Vanderbilt, by then serving as New Jersey’s chief justice. Its summer seminars for appellate judges had begun in 1956.) Thus, from the very outset, the AJC was committed to the continuing professional development of America’s appellate judges and was reaching out to a distinguished law school as a partner in doing so.

On the basis of the work of the McAllister study committee and the Flood organizing committee, the Section Council and the ABA House of Delegates gave their requisite approvals to the AJC’s formation at the ABA Midyear Meeting on February 16 and 17, 1964, respectively. Immediately thereafter, a membership committee chaired by Hallows actively solicited the American appellate judges eligible to join the new conference and by year’s end, approximately 200 (of a total of 600 possible) had joined.

Two years of hard work by the McAllister study committee, the Flood organizing committee, their respective members, other judges, and ABA staff members Ernest C. Friesen Jr. and Gerald M. Werksman culminated in the AJC’s organizational meeting and first annual program at the Waldorf-Astoria Hotel in New York City on August 9, 1964. Flood was elected chair, joined by a slate of other officers and executive committee members consisting of justices and judges from state courts of last resort, U.S. Courts of Appeals, and state intermediate appellate courts.

The AJC immediately made its mark on the judicial education scene with three programs at its 1964 inaugural meeting: (1) a panel discussion on “The Operation of Appellate Courts,” moderated by Justice Louis H. Burke of the California District Court of Appeal (who would become a member of the California Supreme Court later that year); (2) a lecture on “Continuing Education for Appellate Judges,” delivered by Leflar with commentary by Karlen and a panel of judges; and (3) a panel discussion on “What’s wrong with the Courts? With the Trial and Appellate Bar?,” moderated by Gaulkin.

Shortly after the AJC Executive Committee met in February 1965 at the ABA Midyear Meeting, Judge Flood was hospitalized for what proved to be a fatal illness. He remained in the hospital until his death in December and was unable to attend or preside over any subsequent AJC meeting.

The AJC’s second annual meeting was held in Miami Beach, Florida, on August 7–8, 1965. Again the new conference distinguished itself with exceptional educational offerings. Addressing the conference was University of Texas at Austin Law School Professor Charles Alan Wright. Wright was still in his 30s but had already been teaching at Austin for more than a decade. The publication of his monumental treatise Federal Practice and Procedure was still four years in the future, but his reputation for expertise in federal court practice and procedure was already established.

In addition, the AJC offered three additional programs at the annual meeting: (1) a panel discussion on “The Growth of the Law v. Stare Decisis,” moderated by Harvard Law School Dean Erwin N. Griswold; (2) a panel discussion on “Briefs and Oral Argument,” moderated by Chief Justice David W. Carmody; and (3) a panel discussion on “Post Conviction Remedies,” moderated by Arthur J. Freund, vice chairman of the ABA Section of Criminal Law.

As the AJC neared its third annual meeting on August 7, 1966, its membership included about one-half of the 600 American appellate judges. Gaulkin reflected on the conference’s history in the following terms:

During the short period of its existence, it had reawakened the attention of appellate judges to the continuing need to improve the operation of their courts and to keep themselves individually abreast of changing concepts in the substantive law and in judicial administration. . . .

Of great significance also is the promise thus instanced of future help to appellate judges in the more efficient and responsible performance of their duties through authoritative studies and publications by a widely based and forward-looking Conference.

Too much credit for the early success of the Conference cannot be given to the vision and dedication of that small group of organizing judges who guided the Conference from its organizing year in 1963 up to the Third Annual Meeting in 1966. These men have with practical vision brought to life and effective force to what was only an abstract idea of potential service.

[S]pecial mention should be made of the late Judge Gerald Flood of the Pennsylvania Superior Court, who served as efficient chairman of the organizing committee and was elected to serve as the first Chairman of the Conference. His farsightedness and energy symbolized the contribution of the founding brethren. . . .

The contributions of the Appellate Judges Conference toward a more effective judiciary, now and in the future, will be an ever living memorial to the creative vision of Judge Gerry Flood and the other founding brethren.

The Founding of the AJEI

From the very first AJC annual meeting discussed above, its visionary and committed judicial leaders, aided by capable and devoted ABA staff, produced a broad and sustained program of continuing professional development not only for appellate judges but for their staff attorneys and for the attorneys who practiced in their courts.

From the mid-1990s through the turn of the century, the AJC leadership and ABA staff, notably Mary Ellen Donaghy and Sandy Roos, organized and staged small quarterly seminars for appellate judges generally (called “Spencer-Grimes” seminars in honor of two great leaders of the AJC’s early decades, Nebraska Supreme Court Justice Harry A. Spencer and New Hampshire Supreme Court Justice William A. Grimes); an annual seminar for the chief and former chief judges of state intermediate courts of appeal; an annual seminar for appellate staff attorneys; an Appellate Practice Institute for early-career appellate practitioners; and a periodic (every three or four years) large seminar for appellate judges generally. And there was a high degree of synergy between this programming and the University of Virginia School of Law’s Graduate Program for Appellate Judges, which conferred LLM degrees upon judges who completed its rigorous course of study. The American appellate judiciary took a justifiably high degree of pride and satisfaction in its commitment to and the quality of its program of education and professional development.

The funding for this expansive program came from participant registration fees; major grants from the State Justice Institute (SJI), a quasi-government agency funded through the federal budget; the Judicial Improvement Fund (JIF), a special fund at the ABA; contributions from Thomson West (previously West Publishing; now Thomson Reuters); the AJC operating budget; and various in-kind services provided by the ABA. (The SJI was also a major source of funding for the University of Virginia program.)

The SJI was one of a number of initiatives supporting judges and courts the Congress funded at the request of former U.S. Chief Justice Warren Burger. But as the Burger legacy became more remote (he retired from the Court in 1986), Congress’s commitment to his causes diminished. In the late 1990s, SJI support for the AJC’s activities (which was $200,000 per year at its high point) began to diminish. And in 2002, SJI support ended altogether. This decline and ultimate elimination of SJI financial support caused dramatic changes in the AJC education program, including the creation of the Appellate Judges Education Institute (AJEI) and its ultimate emergence as the acknowledged successor of the AJC’s rich and varied fin de siècle educational offerings.

In 2001, the AJC Executive Committee prepared a “prospectus” that it distributed to law schools proposing an “affiliation” with the AJC in which a law school would provide a home for the conference’s education programs. From at least early 2002 on, the accepted explanation for this proposal would be that it was a reaction to declining support for SJI in Congress. However, the contemporaneous minutes of the AJC Executive Committee account for it as the response to deep dissatisfaction with the ABA and the Judicial Division, including “their interference in AJC operations and staffing.”

The prospectus envisioned that the AJC executive director would relocate from Chicago to a law school where the director and a staff of three others would administer the AJC’s education programs. The law school would be expected to provide office space, furniture and equipment, support services, and employee benefits; pay certain startup expenses; and assist in the AJC’s fund-raising and grant-seeking activities. In return, the law school would receive the prestige of housing the AJC’s widely recognized and acclaimed programs as part of the school’s overall educational mission and be able to provide its students and faculty contact with, and education by, appellate judges and specialists from across the country. The affiliation proposal made clear that the executive director’s salary and any other operating expenses not specifically allocated to the law school would be the AJC’s responsibility.

By the time of the ABA Annual Meeting in August 2001, Dean John Attanasio of the Southern Methodist University Dedman School of Law had expressed interest in such an affiliation. The AJC Executive Committee responded favorably to SMU’s interest, culminating in an agreement—never reduced to writing—to consummate the affiliation. The Executive Committee approved the affiliation at the ABA Midyear Meeting in February 2002. Specifically, an entity to be called the “Appellate Judges Education Institute” would be formed as a 501(c)(3) corporation to be housed at and affiliated with the SMU Dedman School of Law to serve as the headquarters for the AJC education programs and handle major fund-raising efforts in support of appellate judicial education.

The 2002 Midyear Meeting would prove eventful for another related reason. At the same meeting, the ABA itself was advised for the first time of the AJC’s decision to relocate its educational programming outside of the Chicago office. Almost immediately, the ABA leadership resisted the AJC’s decision. “We feel that the ABA can and should be the ‘home’ for the AJC’s educational programs, and we have some real concerns about moving a major program like this permanently off-site,” an ABA leader wrote to the AJC in early April 2002.

The ABA’s reaction prompted a face-to-face meeting in late July between representatives of the ABA and AJC. The ABA was represented by Robert A. Stein, its executive director; Wm. T. (Bill) Robinson III, the ABA Board of Governors liaison to the AJC; and three others. The AJC was represented by Judge Danny J. Boggs, Justice John M. Greaney, Justice Craig T. Enoch, and Judge Diarmuid F. O’Scannlain. The ABA representatives strongly discouraged the AJC leaders from proceeding with their plan and committed themselves to using their influence to get the ABA to exert its best efforts to assist in fund-raising for the AJC’s education programs. The AJC leaders, for their part, made clear that whether or not their plan was consummated, the AJC would continue to be a full and active participant in the ABA’s affairs.

Of particular significance at this meeting was the ABA leadership’s taking the position that JIF—the fund mentioned above that supported AJC education programming—would henceforth only be available to the extent of income earned. This pronouncement was of consequence because the fund had theretofore served as an operating account with program income being deposited and program expenses being deducted. (At August 31, 2001, the JIF had a balance of $1,135,000.)

On September 4, 2002, ABA President Alfred P. Carlton Jr. wrote a letter directly to all of the AJC’s members, advising them of the ABA’s opposition to the affiliation with SMU. “We believe it is not fiscally responsible to move the educational programming for appellate judges from the ABA,” Carlton wrote, specifically requesting that the AJC “reconsider its decision to move to SMU.” This action was extraordinary: the ABA president challenging the leadership of an ABA constituent entity in a direct letter to its members!

Carlton’s letter also stated that, regardless of what the AJC ultimately decided, the ABA would continue to provide educational programming for appellate judges through the Judicial Division, using money in the JIF. Although Carlton did not say that JIF monies would not be available to the AJC if it moved from Chicago, the fact that he did say that they would be expended at the ABA’s direction was a significant escalation in the dispute.

The dispute escalated even further when, on September 23, the ABA dismissed Donaghy, the long-time administrator of the AJC’s education programs. This action sparked fury among the AJC leadership, 12 members of which wrote a joint letter in “protest” and “shock” to Stein that the ABA had “made a very serious mistake in firing one of its most productive and revered assistants and one who [had] most ably served members of the Association who were particularly interested in the Appellate Judges Conference and all of its programs.”

Simultaneous with the protest letter to Stein, AJC Chair Justice Craig Enoch wrote to all of the AJC’s members, advising them of Donaghy’s dismissal and responding to Carlton’s letter of 30 days prior. Enoch’s letter described the plan to establish “a 501(c)(3) charitable, educational institute, . . . headquartered at a first-tier law school,” to “assure high-quality educational programs and institutionalize AJC’s fund-raising issues.”

Enoch’s letter also specifically addressed the JIF issue. He recounted its history, dating back to 1981, as a separate fund from which expenditures could be made upon, and only upon, the AJC leadership’s direction. And in Carlton’s statement that JIF monies would be spent at the ABA’s direction, Enoch found particular justification for pursuing the course of establishing “an independent education institute.”

In the same week in which the AJC leaders wrote to Stein and in which Enoch wrote the entire AJC membership, the AJEI was incorporated under the Texas Non-Profit Corporation Act and in conformity with Internal Revenue Code § 501(c)(3). The initial Board of Directors consisted of Enoch, Greaney, and Judge William G. Arnot III.

In the following year, the dispute deescalated and a series of constructive discussions between the ABA and the AJC leadership culminated in a highly satisfactory resolution. The participants in these negotiations, who included Enoch, the others who attended the July 2002 meeting discussed above (particularly Robinson), Attanasio, Judge John M. Vittone, and Judge James A. Wynn Jr., deserve recognition and appreciation for their efforts in producing a mutually satisfactory result.

On August 25, 2003, the ABA and the AJEI entered into an agreement providing that the AJEI would take overall responsibility for “the operation and administration of the appellate educational programs currently conducted and planned by the AJC, effective September 1, 2003.” The agreement required that a majority of the members of the AJEI’s Board of Directors be members of the AJC’s Executive Committee and that two voting members of the AJEI’s Board be appointed by the ABA Board of Governors. And the agreement specified in some detail the respective parties’ commitment to cooperation going forward, including, for example, the AJEI’s agreement to offer ABA member-only discounts and the ABA’s agreement to allow the AJEI to use the ABA logo and trademarks.

Of particular consequence was the JIF dispute’s resolution. The parties agreed that the JIF would remain under the ABA’s administration and control but that its use would be “restricted to funding the educational needs of the appellate judiciary.” Furthermore, the parties agreed that JIF expenditures would be made “at the direction of the AJC Chair or Chair-elect with the concurrence of the ABA Board of Governors’ Finance Committee Chair.” The parties also agreed that the JIF was not an endowment fund but a “program support fund”—the position taken by the AJC leaders at the outset of the dispute—that, nevertheless, had been created with the intent to be a “viable” and “permanent” fund. Lastly, the AJC Executive Committee was authorized to transfer to the AJEI up to 5.5 percent of JIF’s principal balance each year. This compromise was well-designed to provide the AJEI a reasonably predictable stream of funding while preserving the JIF’s long-term viability. During the succeeding decade, JIF earnings and appreciation have more than offset the annual transfer to the AJEI.

Achieving Financial Viability for the AJEI

The AJC’s top officers immediately reported to the entire AJC membership their “delight” that agreement had been reached with the ABA on establishing the AJEI and housing it at SMU. And they reported as well that they were focusing their attention on replacing the discontinued SJI funding, identifying several foundations to be approached and also soliciting support for efforts to convince Congress to restore SJI’s appropriation.

But achieving financial viability for the AJEI would prove to be every bit as challenging as the dispute with the ABA. The AJC educational programs were transferred to the AJEI at SMU, but there was no funding available to compensate staff (other than the 5.5 percent transfer from the JIF). While long-time AJC educational program administrator Sandy Roos was initially engaged to direct AJEI’s efforts, the absence of funding caused her position to be eliminated. Without any permanent staff or significant amount of capital, there was simply no prospect that the AJEI could replicate in 2004 the multiple educational offerings produced by the AJC as recently as 2001 and 2002.

At the recommendation of Attanasio, the AJEI Board and AJC Executive Committee agreed to stage an “Appellate Judges Summit” in the fall of 2004. The staffing for the Summit would be provided by Rebecca Greenan and Rebekah Bell, SMU employees. The goal was to consolidate, at least temporarily, the separate seminars of prior years—and then earn enough of a profit that the AJEI would have sufficient capital to resume multiple educational offerings.

While the Summit, held November 11–14, 2004, in Dallas, was excellent substantively and well attended, it did not turn a profit. On December 31, 2004, the AJEI’s net worth (on a cash basis) was $116,500; for the period from inception through that date, Thomson West had made contributions of $93,000 and there had been a JIF transfer of $50,000. But for the Thomson West contributions and JIF transfer, the AJEI would have incurred a deficit for the period from inception through December 31, 2004.

Part of the challenge facing the AJEI at this financial crossroads was that the AJC’s constituent subgroups had somewhat different objectives for their educational programs.

The Council of Chief Judges (COCJ), a subgroup consisting of the chief and former chief judges of state intermediate courts of appeal, wanted educational programs that focused on issues unique to chief judges. This group insisted upon maintaining a separate annual seminar that would be nevertheless funded by the AJC and AJEI. Although the COCJ agreed to hold its 2004 seminar at the same time as the Summit, its leaders made it clear that it needed sessions that would “be held separately from other aspects of the Summit.”

The position of the Council of Appellate Staff Attorneys (CASA), a subgroup consisting of the professional attorneys who staff federal and state appellate courts, was similar but more flexible. For decades, CASA had held a seminar in the summer for which there was genuine affection on the part of both participants and faculty. The thought of merging this stand-alone summertime tradition into a larger late-fall Summit was deeply disconcerting to many CASA members. Increasing the anxiety was the formation by several CASA members of a competing organization committed to holding separate summer seminars. Donaghy, the former AJC program director, would emerge as the director of this new organization.

In 2001, a third subgroup had been formed in the AJC called the Council of Appellate Lawyers (CAL), consisting of appellate practitioners. While CAL held separate seminars during its initial years, it readily embraced the Summit concept in 2004 and, in what would prove to be crucial to the AJEI’S ultimate financial success, generated financial sponsorships in addition to registration revenue for the Summit.

A second Summit was scheduled for San Francisco for September 28–October 1, 2005, to include the annual COCJ and CASA programs. As in 2004, SMU provided the staffing for the conference in the persons of Greenan and Bell. Once again, the program was excellent but not profitable for the Institute. In fact, the AJEI incurred a small deficit for the year.

When the AJC and AJEI governing boards met during the San Francisco Summit, several things of consequence occurred. COCJ announced—without any advance notice—that it was withdrawing from the AJC and AJEI altogether. CASA, on the other hand, affirmed its commitment to the AJC and AJEI, even though it meant giving up its separate seminar and losing members to the rival organization. It was an impressive display of commitment to the greater good.

The discussion among the board members was candid, to say the least. Judge Harris L. Hartz pointedly suggested that the affiliation with SMU be reexamined altogether because AJEI’s fund-raising had not been successful. Attanasio just as pointedly responded that but for in-kind contributions that SMU had made in providing the Summits’ staffing by Greenan and Bell, no AJEI programming would have been possible. Despite these escalating disagreements, the meeting adjourned with an agreement that a third Summit would be held in the fall of 2006 in Dallas.

Following the Summit in San Francisco, the author of this article conducted a detailed examination of the AJEI’s finances at the request of AJC Chair Justice Denise Johnson. The results of this examination were presented at the AJC executive committee meeting in February 2006. Among the most important findings was that COCJ’s secession from the AJC would have a positive financial effect as the expenses associated with the group had exceeded revenue. It was true that the AJEI had not developed any new major donors and also true that the Summits had not been profitable. However, the annual financial support from Thomson West and the ABA (including the annual JIF transfer) was substantial and the in-kind staffing provided by SMU was of significant economic value.

The overall conclusion was that the AJEI’s financial prospects were good assuming (1) continued financial support at current levels from Thomson West and the ABA (through the JIF transfer and other support); (2) continued in-kind staff support at current levels from SMU; (3) additional contributions in the annual magnitude of $100,000 from new sources; and (4) strict budget discipline in the conduct of Summits and other programs. If these assumptions could be realized, the author of this article predicted, the AJC and the AJEI would be able to return to an educational program featuring multiple seminars in multiple locations each year.

In fact, most of the assumptions materialized. SMU continued its in-kind staff support; both Thomson West and the ABA continued generous financial support. Financially successful Summits were conducted in Dallas in 2006 (chaired by Judge Rosemary Shaw Sackett) and even more so in Washington, D.C., in 2007 (chaired by Judge Martha Curtis Warner): costs were kept under tight control; there was broad attendance by appellate judges, staff attorneys, and appellate lawyers that generated registration revenue; and CAL proved extremely effective in securing law firm financial sponsorships.

By December 31, 2007, the AJEI had achieved financial viability with net worth reaching $400,000 and trending rapidly upward. The generosity of Thomson West, the ABA, and SMU was, of course, critical to achieving these results. But every bit as important if not more to this success was the substantive quality of the Summits themselves. The chairs and their program committees, with sustained support from SMU (each Summit’s program committee began with a face-to-face planning session in January at SMU), assembled a curriculum of exceptional interest and relevance and some of the most noteworthy figures in American law, including U.S. Supreme Court justices, acclaimed authors, and notable practitioners. Key was the extensive involvement of both CASA and CAL in programming, both of which used their wide-ranging experience and contacts to help stage first-rate programs with top-notch speakers. Along the way, the Summits became so popular and so successful that the AJC and AJEI decided to focus on the Summits exclusively and not attempt to return to the old model of multiple seminars in multiple locations.