Washington Lawyer

A Conversation With Chief Judge Eric T. Washington

From Washington Lawyer, June 2008

By Kathryn Alfisi

washington_artDuring his first three years as chief judge of the District of Columbia Court of Appeals, Eric T. Washington has tackled major issues such as reducing the court’s backlog of cases and improving disposition rates; overseeing the continuing renovation of the Old Courthouse in Judiciary Square, the court’s future home; and addressing personnel shortages caused by budget restraints.

Washington Lawyer recently sat down with Chief Judge Washington to discuss these and other matters affecting the court, including the court’s issuance of amendments to Rule XI concerning the disciplinary system and the anticipated dues ceiling request from the D.C. Bar.

When we last interviewed you for Washington Lawyer, it was shortly after you became chief judge in 2005. You discussed some of your goals for the District of Columbia Court of Appeals. Have you been able to fulfill any of those goals?
We have made real progress on several of the goals I discussed in that first interview. The renovation of the Old Courthouse is on schedule, and we are all looking forward to moving into our new home early next year. My newer colleagues have adapted quite well to the working of the court, and they are making great contributions to the administration of justice in the District of Columbia. Also our education outreach efforts have been well received by area law schools. During that first interview, I also discussed the court’s need to reduce its case backlog and increase the speed with which the court was issuing its opinions, and I am pleased to report that over the past year, with the cooperation and commitment of my colleagues, active and senior judges alike, we have been able to show some real progress in this regard. In 2007, the court decided 87 of the 100 oldest cases on our docket, disposed of more than 1,800 matters, and resolved 75 percent of our cases within 90 days of the case being calendared or argued. I am probably most proud of the progress we have made in that regard.

How does the disposition rate of the District of Columbia Court of Appeals compare to other appellate courts in the country?
The number of cases we dispose of each year is significantly higher than most state high courts. The reason for that is quite simple: Unlike most states, the District of Columbia does not have an intermediate court of appeals that initially reviews cases on appeal and determines whether there has been any trial court error in the conduct of the case. Instead, the District of Columbia Court of Appeals plays that role as well as the role of a state supreme court, which must decide difficult issues of constitutional and statutory interpretation and resolve complex substantive and procedural questions of law.

As I mentioned earlier, we resolved more that 1,800 cases last year. By contrast, the Maryland Court of Appeals and the Virginia Supreme Court decided approximately 300 and 400 cases, respectively. This is primarily because each of those jurisdictions has an intermediate appellate court that initially reviews the decisions of its trial courts. Having an intermediate appellate court to review claims of trial court error allows the state’s highest court to consider petitions for review and to decide whether a particular case raises an issue that is deserving of the high court’s attention. If a petitioner fails to convince the high court that an issue raised by the case is legally significant, the petition for review generally is denied.

By contrast, the D.C. Court of Appeals is the first and last level of appellate review for virtually all nonfederal cases tried in the District of Columbia. For that reason, our jurisdiction is largely mandatory, meaning we are obliged to hear and resolve almost every appeal that comes to our court from a decision by a judicial officer of the Superior Court or an administrative law judge from the Office of Administrative Hearings. When you add in direct appeals from decisions of administrative agencies such as the District of Columbia Public Service Commission and the Zoning Commission, and you throw in matters over which we have original jurisdiction, such as bar discipline cases, there is little wonder why our court is so busy.

Is there anything that can be done about this?
There is something to be said for giving judges, especially those sitting on the high court of any jurisdiction, the opportunity to think long and hard about their decisions and the potential impact those decisions will have on the parties, the public, and the development of the law in general.

I think the large mandatory caseload of this court is what led former Chief Judge Judith Rogers to propose that an intermediate court of appeals be created for the District of Columbia. In proposing the creation of an intermediate appellate court, Chief Judge Rogers’ intent was to turn the current Court of Appeals into the equivalent of a state supreme court that would be able to exercise its discretion to hear particular cases based on the significance of the legal issues being presented. As you know, Chief Judge Rogers’ proposal to create an intermediate appellate court garnered broad support in the local legal community, and a bill implementing her proposal actually passed the House of Representatives in the early 1990s. However, it is my understanding the bill ultimately died in the Senate. While this type of structural change to the District of Columbia court system has many backers here in the District’s legal community, this court has not taken a position on this proposal, one way or the other.

What is clear, however, is litigation is becoming more and more complex and raising increasingly difficult evidentiary issues for trial courts, and those legal issues must ultimately be resolved by our court. In addition, recent United States Supreme Court decisions, such as the Crawford v. Washington decision that set forth a general framework for evaluating Constitutional claims under the Confrontation Clause, left open the difficult question of how to apply the law to particular situations. Because we are blessed to have some of the best and brightest lawyers in the country practice in our courts and before our administrative bodies, the application of the law to the cases that come before us often is very challenging.

You mentioned the court has done a lot to clear up the backlog of cases. How did you accomplish this?
The short answer is that my colleagues worked very, very hard to resolve our older cases. In 2007, we reviewed and revised our internal operating procedures to establish timelines for the conduct of the court’s business once the case was calendared. However, to make compliance with those new timelines possible, we knew we also had to commit ourselves to resolving our older cases first. In 2007, we started seeing the benefits of committing to that approach as we disposed of a large percentage of our oldest cases while resolving current cases more quickly.

In addition to working diligently on older cases, the court also initiated an Appellate Mediation Program for certain civil cases. While the number of successfully mediated cases has been relatively modest, those cases that were resolved through the mediation program potentially could have been some of the more complex and time-consuming appeals on our docket. By removing even a few of those cases from the court’s docket, we save a significant amount of judge and clerk time that would otherwise go into preparing for, and disposing of, those cases. Even some of the cases that are not settled through the Appellate Mediation Program benefit from mediation because the process often helps the parties narrow the issues on appeal. That means we can focus our attention on the real issues in the case and not be distracted by several other contentions that counsel may have decided to raise without the benefit of participating in the mediation program.

I would like to talk about the Court of Appeals’ recent issuance of amendments to D.C. Bar Rule XI, which deals with disciplinary proceedings.
The amendments to D.C. Bar Rule XI have been in the works for some time and have been vetted by the D.C. Bar and its Disciplinary System Study Committee. That committee of extremely hardworking individuals made recommendations to the Bar’s Board of Governors, which, in turn, reviewed the committee’s work, vigorously debated it, and then made certain recommendations to this court, which were reviewed, tweaked a bit, and ultimately approved.

It is everyone’s hope that the amendments to Rule XI will increase the efficiency and effectiveness of our disciplinary system. There was a sense that the Board on Professional Responsibility, or BPR, the largely volunteer body tasked with hearing lawyer discipline cases and making recommendations to this court, was overburdened, especially with reciprocal cases, and thus it was taking too long to move cases through the system. The report of the Disciplinary System Study Committee also included a proposal to streamline the method for disposing of certain kinds of disciplinary cases so that a full-blown hearing would not be required for the lawyer to be sanctioned by the court.

The revised rules address both of these issues: First, by removing reciprocal discipline cases from BPR review, thus freeing the BPR and its hearing committees to concentrate on contested original cases brought by the Office of Bar Counsel. Second, by granting Bar Counsel the authority to enter into negotiated disposition on stipulated facts that would be presented to hearing committees of the BPR and, if accepted, would be presented directly to this court for final action without the necessity of BPR review.

Shifting work from the BPR to the court means we had to bolster our legal staff to handle these new responsibilities. Luckily, we had the resources this year to fill two longstanding vacancies. One of the things that differentiates us from a lot of appellate courts across the country is the relatively small size of our central legal staff. However, the duties performed by our lawyers are essential to the work of the court, and we are excited we recently were able to attract two experienced lawyers to join our already outstanding legal staff. Hopefully, we will be ready for our expanded role in the disciplinary process.

The D.C. Bar is coming up against its dues ceiling. What is the process by which the court would consider a dues ceiling petition?
Determining whether, and if so, how much, to raise the dues ceiling is something that comes before the court every five years as the old dues ceiling is reached. The Bar evaluates what its future financial needs are going to be to do the job that both Bar members and our court have come to expect of it. Running a mandatory bar with more than 88,000 members is a daunting task. As I understand it, the Bar looks at its administrative needs, such as office space and staff, the costs associated with its ongoing operations including member services, operating a variety of regulatory programs that help uphold the integrity of the profession, communicating with the membership, and operation of our disciplinary system, among other things, and then provides the court with a good-faith estimate of its financial needs over the next five years, and the dues that it anticipates it will need during that period to meet those obligations.

When the court receives that submission from the Bar, the judges of the Court of Appeals will consider it carefully. We will review the materials that are submitted, along with justification for the dues ceiling request, look at past dues ceiling increases, examine the dues structure of other jurisdictions with mandatory bars, and then decide whether the requested dues ceiling increase, which would be implemented over a five-year period, is reasonable. The answer to that question will lead us to approve it, disapprove it, or ask the Bar to provide the court with a better justification or more information to support it.

The court has a responsibility to the public to ensure the lawyers who practice here are well prepared to do so, and that they are appropriately disciplined if they engage in inappropriate behavior. So, it is very important that we give the Bar the resources it needs to perform its essential functions. At the same time, however, we have a responsibility to ensure that lawyers who practice in the District and are required to be members of our bar are not being overburdened by excessive dues.

This past fall the court issued an order to continue the District of Columbia Access to Justice Commission, but the order did not contain a sunset provision. Does that mean it goes on indefinitely?
The short answer is yes. The Access to Justice Commission will continue to exist until such time the judges of the Court of Appeals believe the commission has fulfilled its mission or has reached a plateau, and another mechanism is needed to help ensure the civil legal needs of low- and moderate-income residents of the District of Columbia are being met.

What do you hope to accomplish with the Access to Justice Commission?
Under the leadership of former Chief Judge Annice Wagner, the Court of Appeals created the Access to Justice Commission to be a galvanizing voice in the community and advocate for the needs of those in the District who face significant legal challenges to their ability to obtain food, health care, housing, and other basic necessities of life. The court also hoped the commission would be a strategic partner of the Bar in helping members of the legal services provider community develop new approaches to increasing the capacity of lawyers available to provide legal assistance to these affected residents.

While I intend to continue to speak out about the importance of access to justice issues generally, this commission is looking more specifically at District-wide data to assess the unmet legal needs that exist in the community and determine where the gaps in our legal services exist. In addition, the commission continues to advocate for greater financial support for legal organizations that are providing services to persons who otherwise could not afford a lawyer to represent them.

The commission’s success has been well documented. Not only has this commission led the effort to obtain public funding for legal services providers, it also has been successful in convincing our local elected officials to provide funding for loan forgiveness to encourage some of our best and brightest young lawyers to work in legal services provider organizations. The commission has accomplished a great deal, and we are very proud of what it has accomplished to date. For that reason, the Court of Appeals felt it was appropriate to ask the commission to continue its great work without any sunset provisions.

The renovation of the Old Courthouse, which will house the Court of Appeals upon its completion, obviously has been an important issue since you began your tenure. Has it been a smooth process, and what is the current status?
The Old Courthouse will be the crown jewel of Judiciary Square. However, it is no easy task to turn one of the oldest public buildings in the District of Columbia into a state-of the-art, 21st-century courthouse. I believe the renovated Old Courthouse will come to be recognized as a true work of art and will be a fitting symbol for a court system that has long been nationally recognized for its innovative approaches to administering justice.

The task has not been without some challenges, but our staff has done a wonderful job of managing the Old Courthouse construction project, and we expect to move into the newly renovated Old Courthouse building early next year. Overall, I would have to say the Old Courthouse renovation is proceeding very smoothly. The success of this project, as it is with all of our capital projects, is due to the tremendous work of our courts’ management team led by Anne Wicks, our executive officer, and Joe Sanchez, the director of our Capital Projects and Facilities Management Team. They both have done a magnificent job of working with our staff, our consultants, and our construction teams to bring in all of our capital projects, not just the Old Courthouse, on time and within budget.

Why was this renovation important?
It is important for a number of reasons. Approximately 10,000 people enter the H. Carl Moultrie Courthouse each day. Accommodating that demand already was overtaxing our court facilities, and with the development of our expanded family court and our desire to consolidate those operations in our newest court building, the Moultrie Courthouse, the Joint Committee on Judicial Administration realized additional space had to be found to meet the courts’ growing needs. Therefore, the courts hired consultants to help us assess our current and future space needs. Their study concluded that we could not meet our space needs for both courts unless we renovated our other court buildings, therefore expanding court operations outside of the Moultrie Courthouse.

The study also made clear that the real key to meeting our space needs, both for the expanded family court and for other Superior Court operations, was to move the Court of Appeals out of the Moultrie Courthouse and into its own home in the Old Courthouse. It is important to note that the consultants’ study confirmed what my predecessor, Chief Judge Wagner, already had determined. In fact, before the study was completed, she had taken steps as chair of the Joint Committee on Judicial Administration to preserve the building for the court’s future use by authorizing repairs to stop a pervasive leak in the roof. She also began discussions with our congresswoman, Eleanor Holmes Norton, about the idea to renovate the building to house the D.C. Court of Appeals, and she had worked to gain the support of other local elected officials for the concept. The consultants’ report, however, provided significant support for Judge Wagner’s vision for the Old Courthouse and for our court system in general. I think it is interesting to note that our court operations are going “back to the future” because we are moving court operations out of the Moultrie Courthouse and back into buildings on the Judiciary Square campus where some of those court operations previously had been housed.

How will it feel to be the first chief judge to preside in this newly renovated courthouse?
I am humbled but excited about the prospect of being the first chief judge to preside over the court when it moves into the renovated Old Courthouse building because I know how hard the D.C. Courts had to work to get this project underway. I also know how fabulous a building the Old Courthouse will be when it is completed. As chief judge, the renovated Old Courthouse will provide me with options that never were available to my predecessors. I will have the ability to schedule oral arguments before different panels in different courtrooms on the same day and provide hearing room space for the Board on Professional Responsibility, the Committee on Admissions, and the Committee on the Unauthorized Practice of Law. Additionally, the ceremonial courtroom will allow us to better accommodate Bar admission ceremonies and court-wide functions such as judicial investitures.

The multipurpose room will be equipped so that we can better take advantage of distance-learning opportunities, and we hope it also will be a place where the public can come and learn about the court system, which will help us better promote trust and confidence in the courts. And that is just the tip of the iceberg as far as the flexibility the newly renovated courthouse will provide for the entire D.C. court system. So for me, serving as the first chief judge in the renovated Old Courthouse means I can be creative in ways my predecessors were not able to, and that is an exciting prospect.

Doesn’t Annice Wagner, former chief judge of the Court of Appeals, head the D.C. Courts’ Historical Society? Could you tell me about that?
Because the Old Courthouse is a building of great historical significance to this city and its courts, as well as to the justice system of the United States, one of the things we wanted to do was capture its history. When Chief Judge Wagner took senior status, she agreed to head this effort. To date, there has been a significant number of planning meetings and information-gathering sessions. We are very excited about where we are going with this project and look forward to the day when the exhibits and the information we are in the process of gathering will be permanently displayed in our new Court of Appeals building.

What is the current state of court funding?
I think the support we have received from the president of the United States and Congress over the past five or six years for both operational and capital spending priorities is a real testament to our leadership team and its emphasis on strategic planning and financial accountability. Because we are competing for scarce federal dollars with federal agencies, one never knows from year to year whether we will be asked to do more with less, but to this point we have been treated very fairly by both the president and Congress, especially with respect to our capital project initiatives. Some credit for that has to go to the Bar and its leadership for making sure that our story is heard in the right places.

How do you relax outside of the courthouse? Have you seen the Nationals at the new ballpark?
I have been to a Nationals game, and I think the new stadium is wonderful. The beauty of the new ballpark to me is its accessibility and the fact that it is very interactive. I think it is going to be a really fun destination for families in the District.

When I am not working, I really enjoy both playing and watching sports. When I have the time, I enjoy playing tennis, and my children have kept me quite busy over the years watching them play soccer, basketball, and golf. I am a big Wizards and Nationals fan, so I like to attend those games. I also like to travel, and my wife, Sheryl, and I certainly hope to do more of that in the future.

What have been the biggest surprises and challenges you have experienced since becoming chief judge?
I don’t know if there have been many surprises. Having served in leadership roles before becoming chief, especially having served as cochair of the courts’ Strategic Planning Leadership Council and having been mentored by Chief Judge Wagner for several months before assuming the position, I felt confident I was ready to assume my duties as chief judge of the Court of Appeals.

I already had worked closely with the executive officer and many of the other top court administrators, so I was familiar with them and they were familiar with me. Furthermore, having previously served as an associate judge on the Superior Court before being appointed to this court, I knew the judges on both courts well and was comfortable with the support I knew they would provide. So, I was prepared to take on the responsibility of chief judge, not necessarily because of anything I did, but because people took the time to prepare me. I knew coming in we had an outstanding staff, our employees were committed, and our judges were exceptional.

The biggest challenge I have had to face since taking over as chief was managing the court during the previous fiscal year when we were experiencing staff vacancy rates approaching 15 percent. We asked managers to develop action plans that would allow the courts to do more with less, and then we asked our employees to work harder and smarter. The staff was up to the task, and, interestingly, our outreach suggests that people who used the courts during that period of time generally were pleased with our performance.

This also is true of the leadership of the D.C. Bar and our voluntary bar associations. Bar members have stepped up time and time again to assist us in providing better services for the community. This is reflected through their support and participation as our partners in developing legal resource centers in the Superior Court. It also is reflected in the support we have received for initiatives such as the Access to Justice Commission. The D.C. Courts are trying hard to live up to its aspirational vision of being a court system that is “open to all, trusted by all, and with justice for all,” but we know that for the vision to become a reality, the entire justice system has to join our efforts.

What issue at the court are you most passionate about? What do you want your legacy to be as chief judge?
It is hard to say what I want my legacy to be because I don’t know where I stand in terms of my journey as chief judge. However, I can tell you I hope to be remembered as a chief judge who served the people of the District of Columbia honorably. I also hope when people look back on my tenure as chief, they will say my management of the court was sound, and that I was open to innovative approaches to making justice truly accessible to all.