February 2006

Visiting Judges Take Their Work on the Road

In the absence of new judgeships, courts have coped with rising case-loads in a variety of ways. One of the most successful has been the use of visiting judges.

Two types of temporary assignments are authorized: assignment of judges to other courts within their circuits and assignment of judges to courts outside their circuits. A single judge may accept multiple assignments in a year. In fiscal year 2005, judges accepted 324 assignments to courts of appeals either within or outside their own circuits, participating in 4,893 appeals.

At the district court level in FY 2005, judges accepted 221 assignments to work in courts both within and outside their own circuits, handling 1,239 civil cases and 1,250 criminal defendants. And according to data collected by the Judicial Conference Committee on Intercircuit Assignments and the Committee on Judicial Resources, which has jurisdiction over human resource allocation, the bargain price tag for all this work is about the cost of one new judgeship, or approximately $1 million.

With such a favorable cost-benefit, it’s not surprising that these committees are urging courts to expand their use of visiting judges.

“The committees believe strongly that courts should be encouraged to consider using visiting judges,” said Judge Royce Lamberth (D.D.C.), who chairs the Committee on Intercircuit Assignments, “especially on the courts of appeals where there have been no new judgeships since 1990. We couldn’t hope to keep current with the appeals caseload without visiting judges.”

According to Judge W. Royal Furgeson (W.D. Tex.), chair of the Committee on Judicial Resources, it’s an efficient and effective way to use resources and staff when courts are overwhelmed. He speaks from experience. “In the Pecos Division of my border district,” said Furgeson, “where I was the only sitting judge, I saw my criminal caseload go from 40 cases per year to 400 cases. Other border judges experienced the same overload, and we desperately needed help. We got that help from visiting judges in our circuit and in other circuits, some from as far away as New York, Connecticut, and New Hampshire.”

According to 28 U.S.C. § 291 and §292, if the calendar for a court is substantially behind schedule or otherwise warrants additional judicial assistance, the temporary assignment of a judge from another circuit or another district to expedite the disposition of cases may be necessary.

Even a single judicial vacancy can put at risk the timely resolution of a court’s caseload. “There is a lag, often a long lag, between when a judicial vacancy occurs and when it is filled,” noted Lamberth. “Visiting judges fill that void. Other courts may be inundated with temporary caseloads, or, like the border courts, have a high volume of cases and be unable to fill vacancies. Visiting judges may be the only way they can cope.”

The Committee on Intercircuit Assignments traditionally marks a judge’s transition to senior status with an invitation to serve as a visiting judge. At every orientation of a new chief judge, Lamberth also takes the opportunity to tell them of the advantages of visiting judges.

“If a court has traditionally resisted using visiting judges, we urge them to reconsider,” said Lamberth. “They may know of a judge with whom their colleagues and the members of the bar would be comfortable. Propose someone, and we’re happy to ask if they’d be willing to serve.”

Courts that don’t use visiting judges usually cite a lack of clerical support and/or space. However, the use of Case Management/Electronic Case Files in the district courts has made it even easier for visiting judges in terms of handling paperwork. And with CM/ECF, a visiting judge may not have to travel to a court to offer assistance.

Larry Baerman, clerk for the District Court for the Northern District of New York, says his court has used visiting judges for over 15 years. The court made use of eight visiting judges in 2005, who disposed of 93 cases, mostly prisoner suits.

“CM/ECF has made this so easy,” said Baerman. “Judge Lyle E. Strom in the District of Nebraska was assigned 15 cases last year and we are in the process of assigning 25 cases to Judge Garnett Thomas Eisele in the Eastern District of Arkansas through CM/ECF. The visiting judges and their staff simply log in through the system and no files need to be mailed. They receive a notice of electronic filing each time documents are filed and they can bring the documents up and view them on their computers or print them in their chambers. When judges are ready to render a decision on a motion, they simply e-mail the orders to our office and we upload them to CM/ECF.”

Some visiting judges have even videoconferenced arguments in cases. “If pending caseload is a problem,” states Baerman, “then a visiting judge is the way to go.”

Visiting judges are considered to be so helpful that courts requesting additional judgeships in the Judiciary’s biennial judgeship survey are asked if they are using them, and if not, why not. Visiting judges go where they’re needed, a temporary solution to heavy caseloads and vacancies. They are, however, not a permanent solution to judgeship needs.

“Visiting judges kept our district afloat until we got new judgeships,” said Furgeson. “But they are not the right solution to long-term needs.”

Only the Chief Justice has the authority to designate judges to serve in courts outside their circuits. The intercircuit assignment of an active judge begins with a request for assistance to the Judicial Conference Committee on Intercircuit Assignments by a chief circuit judge. It also requires the approval of the chief judges of the lending circuit and court.

For intracircuit assignments, the chief circuit judge has the authority to designate judges to serve in other districts. Senior judges can consent to temporary assignments, but are required to consult with chief circuit and district judges prior to accepting the assignment in another district or circuit. Visiting judges generally serve for at least two weeks in district courts and for a regular sitting (two or three days) in courts of appeals, but assignments are made without regard to specific dates.