Legislative Activity - Annual Report 2010

During its second session, the 111th Congress considered a wide range of issues important to the federal courts.

Judicial Salary Restoration Initiative

The continuing weak economy severely constrained efforts to secure adequate and reasonable compensation for judges during the entire 111th Congress. Every legislative initiative involving spending of any nature has become strictly limited by current-year budget levels and concerns about any potential long-term impact on the federal deficit. The Judiciary continued to remind key congressional members and staff about the growing problem of inadequate federal judicial compensation. Judiciary representatives and AO staff explained how the pay situation has adversely affected the retention of judicial officers and has created salary compression and inversion throughout the Judiciary.

Article III Judgeships

Additional Article III judgeships are critical to the Judiciary's efforts to provide efficient and prompt service to the public. It has been more than two decades since the Judiciary's judgeship needs were comprehensively addressed. Since then, the Judiciary's civil caseload has grown by 29 percent and its criminal caseload has grown by 60 percent, while the number of Article III judgeships has grown by only 4 percent. Greater judicial resources are needed to address these increasing caseloads, and the Judiciary continued efforts with Congress and the Executive Branch during 2010 to establish additional Article III judgeships. This effort followed progress during the prior year: introduction of legislation reflecting the Judicial Conference judgeship recommendations, as well as a hearing on judgeship needs in the Senate Judiciary Subcommittee on Administrative Oversight and the Courts.

Temporary Judgeships

Three existing temporary judgeships were extended once during 2010; subsequently, in the fall of 2010, two lapsed and one expired. Short-term extensions of three existing temporary district judgeships that were in imminent danger of expiring—in Hawaii, Kansas, and the Northern District of Ohio—were enacted through the Consolidated Appropriations Act for FY 2010 (Pub. L. No. 111-117), which the President signed into law in December 2009. Then, in June 2010, the Senate Judiciary Committee reported legislation that would have further extended these and certain other temporary Article III judgeships, and would have replaced lost temporary judgeships in the Eastern District of California and the District of Nebraska. This legislation also would have raised bankruptcy filing fees to provide the Pay-As-You-Go, or PAYGO offset for the replacement of the Eastern District of California and District of Nebraska temporary judgeships. This legislation did not advance in the Senate. After the Hawaii, Kansas, and Northern District of Ohio judgeships lapsedin the fall of 2010, a further extension of these temporary judgeships was not included in the continuing resolution that Congress passed at the end of the 111th Congress. When a vacancy opened in the Northern District of Ohio, that district's temporary judgeship expired.

Bankruptcy Judgeships

Bankruptcy judgeships also are critical to address near-record caseloads while ensuring timely resolution of bankruptcy cases for both debtors and creditors. During fiscal year 2010, bankruptcy caseloads increased by 14 percent over fiscal year 2009. Since 2006, the first year after the Bankruptcy Abuse Prevention and Consumer Protection Act took effect, bankruptcy filings have doubled. To meet the debtors' and creditors' needs for additional bankruptcy judges to process these cases, Representative Steve Cohen (TN), along with Representatives John Conyers (MI) and Lamar Smith (TX), introduced the bipartisan "Bankruptcy Judgeship Act of 2010" on January 26, 2010. The bill reflected Judicial Conference bankruptcy judgeship recommendations. Introduction of the bill followed a 2009 hearing on bankruptcy judgeship needs in the House Judiciary Subcommittee on Courts and Competition Policy. The House Judiciary Committee reported the bill on January 27, 2010, and the full House of Representatives passed it on March 12. In the Senate, the Judiciary Committee reported the bill by a vote of 4-4 on May 27, 2010. The bill did not advance further in the Senate.

Securing Adequate Funding

Supplemental Funding for Fiscal Year 2010

The President signed into law a southwest border supplemental funding bill (P.L. 111-230) on August 13, 2010 with funding for the Judiciary to address workload requirements in the courts resulting from immigration and other law enforcement initiatives. The $10 million supplemental will be available through September 30, 2011.

Fiscal Year 2011 Judiciary Funding

The Senate Appropriations Committee reported out its version of the FY 2011 Financial Services and General Government (FSGG) Appropriations Bill on July 29, 2010, with a 5.5 percent overall increase for the Judiciary—essentially the full re-estimate of the Judiciary's FY 2011 budget request submitted to Congress in May 2010. The Senate level was very generous and would have allowed courts to fully fund current on-board staff in FY 2011 and, along with anticipated fee and carryover levels available in FY 2011, would have allowed for staffing increases for courts experiencing a growing caseload. This bill was never considered by the full Senate.

The House Appropriations Subcommittee on FSGG considered the bill on July 29 and issued a press release that mentioned an overall increase of 3.9 percent for the Judiciary, or approximately the current services funding level for the Third Branch. The Appropriation Committee did not report out this bill, however, and the full House did not consider it.

In fall 2010, concerns about the deficit and spending grew in Congress, and the election changed several Senate seats and party leadership in the House. These changes influenced the approach to federal government funding for FY 2011 and thinking about it for future years. Congress ultimately deferred its decision on final fiscal year 2011 funding levels for the federal government, including the Judiciary, for later action by the 112th Congress. Congress therefore extended the fiscal year 2011 continuing resolution, funding federal government operations at FY 2010 levels through March 4, 2011.

Financial Plans for FY 2011

Judiciary spending plans are adapting to the changing federal fiscal climate. The AO is working with its court advisory groups, including the Budget and Finance Advisory Council, to consider several fiscal year 2011 court allotment scenarios based on expected fiscal year 2011 funding. Assuming Congress completes its work on fiscal year 2011 appropriations before or around the March 4, 2011 expiration date of the current CR, it is likely that final financial plans will be presented to the Executive Committee for approval very soon afterwards.

The AO has offered guidance to court units to exercise restraint in their spending decisions until Congress enacts a full-year appropriation. In particular, courts have been advised to limit hiring to positions absolutely essential to the court's mission-critical work.

Based on the current appropriations outlook, the Judiciary is developing contingency plans in the likely event that the interim financial plans will not be fully funded. If Congress ultimately enacts a full-year CR, additional budget balancing reductions in the Salaries and Expenses account would be required beyond what was included in the interim financial plan. The interim plan contains a 6.6 percent cut from full-formula requirements, while a full-year CR would require reductions of approximately 9 percent below full-formula requirements. For the Defender Services account, a full year CR results in the likelihood of over two months in possible deferred panel attorney payments. For the Court Security account, it would require significantly reduced funding for cyclical replacement of security systems and equipment.

Fiscal Year 2012 Budget Request

The Judicial Conference Executive Committee approved policy and technical changes in January 2011 that make it possible to reduce the original Conference FY 2012 budget request approved in September 2010. As a result, the revised fiscal year 2012 budget request will total $6.9 billion in appropriations, an increase of 4.2 percent over the current fiscal year 2011 appropriations assumptions, which compares to the 4.7 percent increase contained in the original request approved by the Judicial Conference. The Administrative Office plans to transmit the Judiciary's fiscal year 2012 request to Congress in mid February 2011 in conjunction with the release of the President's fiscal year 2012 budget request.

Crack/Powder Cocaine Sentencing Disparity Reduction Enacted

After many years of tireless advocacy by the Judiciary and others, Congress and the President on August 3, 2010, enacted the "Fair Sentencing Act of 2010" (Pub. L. No. 111-220). This law reduced the disparity in the mandatory minimum sentences for crack and powder cocaine from 100:1 to less than 20:1. The same law also eliminated a mandatory minimum sentence for crack cocaine possession. The Judicial Conference—which opposes mandatory minimum sentences in general—specifically supported a reduction in the crack-powder disparity because of its particularly adverse impact on the administration of justice. District Judge Reggie Walton, on behalf of the Judicial Conference, testified several times before the House and Senate in support of reducing the crack-powder disparity, most recently on April 29, 2009.

Court Improvements Provisions Enacted

In May 2010, the President signed into law the "Federal Judiciary Administrative Improvements Act of 2010" (Pub. L. No. 111-174), enacting a number of Judicial Conference legislative initiatives, including provisions that would:

• Allow judges to file separately the Statement of Reasons, issued upon sentencing, so that confidential information can be better controlled and protected;
• Clarify the scope of authority of federal pretrial services officers to supervise and assist juveniles as an alternative to incarceration;
• Adjust the deadline for state and federal judges to file their wiretap data, as well as the deadline for the Department of Justice;and
• Apply an inflationary index to the threshold amount at which chief judge approval is required for reimbursement of the costs of hiring expert witnesses and conducting investigations for indigent defendants.

Jurisdiction and Venue Clarification Act

In September 2010, the House passed the "Federal Courts Jurisdiction and Venue Clarification Act of 2010." The Senate did not act on the legislation prior to adjournment. The Conference-supported legislation reflected substantial work over several years by the Committee on Federal-State Jurisdiction. The bill would have lessened uncertainty in certain jurisdictional and venue provisions, thereby reducing wasteful litigation and assisting litigants in pursuing their claims.

The bill would have, for instance, codified present case law requiring all defendants to consent to removal. It would also have ensured that when a federal question claim is removed to federal court along with unrelated state law claims, the federal question claim will proceed in the federal court and the state law claims will be remanded to state court. In addition, the legislation would have clarified that each defendant has 30 days after service to remove, while allowing earlier served defendants to consent to that removal.

Regarding venue, the bill would have, for example, created a general statute and established a unitary approach to venue rules for both diversity and federal question cases. It also would have repealed the outdated "local action" rule, clarified "residence" for venue purposes, and provided that unincorporated associations are treated the same as corporations for venue purposes. In addition, the legislation would have clarified the application of venue for persons residing outside of the United States.

Cameras in the Courtroom

Both the House and Senate introduced bills that would have provided presiding judges with the discretion to permit electronic media coverage of proceedings in the district courts, courts of appeals, and the Supreme Court of the United States. They would have given any non-party witness the right to request that faces and voices be disguised or obscured to the broadcast audience. The bills also would have barred interlocutory appeals of decisions to permit, deny, or terminate electronic media coverage, and precluded electronic media coverage of jurors and the jury selection process. The legislation would have authorized the Judicial Conference to promulgate guidelines for managing and administering cameras in the courtroom. The House did not act on its cameras bill. The Senate Judiciary Committee reported favorably its bill allowing for discretionary use of cameras in all federal courts.

Separate measures were introduced in both the House and Senate requiring television coverage of Supreme Court proceedings, unless the Court decided, by majority vote, that allowing such coverage would constitute a violation of the due process rights of one or more parties before the Court. A resolution expressing the sense of the Senate that such coverage should be permitted was also introduced. While the House did not consider its cameras bill pertaining only to the Supreme Court, the Senate Judiciary Committee reported favorably both its Supreme Court cameras bill and resolution.

The Judicial Conference continues to strongly oppose bills that would allow the use of cameras in federal trial court proceedings. In September 2010, the Judicial Conference authorized a limited three-year national pilot project to evaluate the effect of cameras in federal district court civil proceedings and the public release of recordings of the proceedings. The Conference Committee on Court Administration and Case Management and the Federal Judicial Center are developing the pilot and the study. The Administrative Office will fund equipment and training as needed by participating courts. Participation in the pilot will be at the trial judge's discretion. Recording of jury members will not be permitted, and parties in a trial must consent to participate in the pilot.

Courthouse Construction

The Judicial Conference five-year courthouse construction plan for fiscal years 2011-2015 proposed four courthouse construction projects for funding in fiscal year 2011: Mobile, Alabama; Nashville, Tennessee; Savannah, Georgia; and San Jose, California. The plan also stated that while the Los Angeles, California courthouse project remained the number one priority, no further funding would be requested until a decision was made on how to move forward with this project. The President's FY 2011 budget request for the General Services Administration (GSA) did not include any courthouse construction projects.

One courthouse project funded in FY 2010, Salt Lake City, Utah, was authorized this year, at a significant cost saving. With regard to FY 2011, the Senate Appropriations Committee reported a bill that included $92 million to construct the new Los Angeles courthouse, following an agreement by the Judiciary and GSA to proceed with a scaled-down Los Angeles project. An equivalent bill, cleared only at subcommittee level in the House, included $10 million for the Mobile, Alabama courthouse, which requires a total of $190 million for construction.

Unfortunately, the 111th Congress adjourned without completing action on the FY 2011 Appropriations bills. Instead, Congress passed a resolution to continue appropriations at FY 2010 levels through March 4, 2011. The continuing resolution did not fund any new projects or programs, including courthouses and the proposed Judicial Capital Security Program to address security deficiencies in existing court facilities. The new 112th Congress will address the unfinished FY 2011 appropriations process.

Capital Security Program

The appropriations bill reported by the Senate Committee included funding to GSA for the proposed new Capital Security Program. It would improve security features in existing court facilities that do not meet current baseline standards, avoiding the need for entirely new structures whenever physical, interior alterations are viable. Under the Judiciary's new space planning process—Asset Management Planning—security remains a priority but security concerns alone will not result in a request for a new courthouse.

GAO Study on Courthouse Planning

The House and Senate committees that authorize courthouses continue to seek cost reductions in courthouse projects. Authorizing resolutions approved this year imposed limits on individual projects, disallowing space for projected new judgeships, and ensuring strict compliance with current courtroom sharing policies. The House authorizing committee also asked the Government Accountability Office (GAO) to conduct a study of courthouse planning, which was completed this year. GAO concluded from its study that the 33 federal courthouses built between 2000 and 2010 had excess space and wasted taxpayer dollars. GAO questioned the planning of space for new judgeships that did not materialize, and suggested increased courtroom sharing at a ratio of two courtrooms for every three active district judges and one courtroom for every three senior judges. On May 25, 2010, the House authorizing subcommittee held a hearing on GAO's draft report. Judge Michael Ponsor, Chair of the Judicial Conference Committee on Space and Facilities, and Judge Julie Robinson, Chair of the Judicial Conference Committee on Court Administration and Case Management, testified on behalf of the Judiciary that the report and methodology were significantly flawed and demonstrated a lack of understanding of the complex and dynamic judicial process, which cannot be reduced to formulaic assumptions. The Judiciary sent its official comments on the draft report to GAO on June 1, 2010. GAO issued its final report on June 21, 2010.

Following receipt of the GAO report, leaders of the House authorizing subcommittee wrote to the President, requesting that his annual budget not include any funds to construct courthouses until the Judiciary agrees to establish what subcommittee leaders consider realistic judgeship projections and more robust courtroom sharing, based on empirical data. AO Director James Duff, acting in his capacity as the Secretary of the Judicial Conference, responded with a letter to the President that opposed the proposed moratorium on the courthouse program and described the flaws in the GAO conclusions on which the subcommittee had based its request. In addition, Representative Hank Johnson (GA), Chair of the House Judiciary Subcommittee on Courts and Competition Policy, wrote to the President opposing a moratorium on courthouse funding.

Chairman Johnson also held a hearing on September 29, 2010, in the Courts Subcommittee on "Courtroom Use: Access to Justice, Effective Judicial Administration, and Courtroom Security." Judge Michael Ponsor and Judge Robert Conrad, Chief Judge of the Western District of North Carolina, testified on behalf of the Judiciary about the impact of courtroom sharing on the judicial process. The late Judge John Roll, Chief Judge of the District of Arizona, submitted a statement for the hearing record about the difficult conditions in Arizona courts. GSA Public Buildings Commissioner Robert Peck also testified.