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October 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Calls for Help Answered by Visiting Judges

Sitting in his chambers in Anchorage, Alaska, Senior District Judge James K. Singleton has disposed of over 40 habeas corpus cases in the last six months—in the Northern District of New York. These are all time-consuming cases that may take over a week to review. “He has helped turn the tide for us,” said a grateful Clerk of Court Larry Baerman in the Northern District of New York, whose district is one of the most congested in the federal court system. Help also has come from Senior Judge Lyle E. Strom in the District of Nebraska who has done “a fantastic job,” according to Baerman, handling prisoner civil rights cases for the district. Strom and Singleton are visiting judges, two of over 60 court of appeals and district court judges who, so far this calendar year, have answered a request from a court for assistance in handling cases. 

“Sometimes districts need a judge to come in for reasons of conflict of interest—in which all judges in a given district or circuit are disqualified—or a natural emergency or a catastrophe, to help handle a temporary caseload increase, or clear backlogged cases. We can help one another,” said Judge J. Frederick Motz (D. Md.), chair of the Conference Committee on Intercircuit Assignments. “We have resources available in the federal courts with our senior and other judges who are willing to take intercircuit assignments. We owe it to the public to make the most effective use of those resources.” 

Last fiscal year, visiting judges taking intercircuit and intracircuit assignments in district courts terminated 8,172 civil cases and 603 criminal cases, and completed 167 trials. In the courts of appeals, visiting judges participated in disposing of 5,171 appeals. “I think the budget last year was about $1 million for all the visiting judge intercircuit and intracircuit assignments that were made,” said Motz, “which is really quite modest considering the work that was done.”

Authority for the temporary assignment of federal judges to courts in other circuits or to special courts is vested in the Chief Justice. The intercircuit assignment process is initiated when the chief judge of the borrowing circuit submits a Certificate of Necessity to the Conference Committee on Intercircuit Assignments. A Consent to Assignment form is also submitted to the committee from the lending court. Upon receipt of both forms, the committee submits the request to the Chief Justice for his approval.

In June 2008, the Committee on Intercircuit Assignments formalized policy on several existing practices.

“The use of newly appointed judges for intercircuit assignments is discouraged,” said Motz, “particularly judges who have been appointed less than five years. The obvious reason for this is that when a new judge comes on board he or she needs to learn the ropes at the court to which he or she was appointed.”

There are exceptions to that rule. For example, a newly appointed judge who had been a U.S. Attorney was disqualified for a period of time from handling criminal cases in his own district. He volunteered to take an intercircuit assignment so he could take criminal cases in another district.

The second change, formalized an existing practice that encourages senior judges to be considered first for intercircuit assignments rather than active judges.

“Senior judges are a resource, which is particularly valuable to the districts in which they sit. But to the extent that they’re willing to do so, they are a national resource,” said Motz. Senior judges may consent to their own assignments, while active judges require the approval of their chief circuit judge.

Senior or active, the committee is primarily interested in finding the right fit between the need of a particular court, and a judge who is available to go to that district.

“In some instances, such as the border courts, obviously there’s a need for judges to come and handle the overwhelming criminal docket, particularly immigration cases. If a judge isn’t interested in doing that, then he or she should take another intercircuit assignment.”

Assignments to a court can be for a set period of time, with a variety of cases, or for an individual proceeding. But a visiting judge may not even need to leave his or her district or circuit to take cases.

“In this day and age of improved technology, it is not necessary at all to go to the court,” said Motz. “With CM/ECF, we can access one another’s dockets quite easily and hearings can be held by teleconference or videoconference.”

Judges have used courtroom video equipment to hold civil trials remotely, while, more commonly, a judge will use written orders, video conferences, or the assistance of a magistrate judge to dispose of pretrial matters. Remote access also allows assigned judges to save time and money by limiting travel to short, impact visits, such as a “sentencing week,” or to hear stacked trials.

Courts that have requested new judgeships may sometimes be reluctant to either lend judges or borrow judges in the belief that this may impair their chances of adding a new judgeship. “That is simply not the case,” said Motz. “Indeed, I know it’s the reverse. In addition to the statistical data used by the Committee on Judicial Resources (JRC) concerning new judgeships, the JRC considers whether the court requesting additional judgeships has used visiting judges.”

The committee maintains a roster of judges willing to take intercircuit assignments. To supplement the current roster, judges will be asked within the next few weeks to complete a new on-line profile with information on the kinds of cases that they might be interested in taking, and the period of time they might be willing to devote. This information will improve the roster’s usefulness to the committee and to courts.

“This is an excellent program for everyone—for judges and for courts that either have a temporary crisis or a long-established need that hasn’t been fulfilled by a new judgeship,” said Motz. “Judges are available to help. Our committee is ready to assist. And courts shouldn’t be at all reluctant to call upon us to help them. For judges who would like to take an intercircuit assignment, it’s a great service to the courts that need their services. And it’s another horizon for judges to explore if they’re interested.”