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Shorthanded and Overworked, Courts Look to Visiting Judges for Help

These three are among the more than 500 appellate and district judges who offered their services as visiting judges to other courts during fiscal year 2000.

"Visiting judges have long provided significant assistance to the courts they visit," according to the 1999 Report of the Judicial Officers Resources Working Group to the Judicial Conference. "They provide temporary assistance not only when a court's own judges must recuse themselves, but also to help meet caseload needs arising from vacancies, lack of sufficient judgeships, specific workload exigencies, and other workload imbalances."

"It's a sensational program that supplements any court that is in need of concentrated judicial assistance, particularly in the trial stage," said Chief Judge Elizabeth A. Kovachevich of the Middle District of Florida, where courts have struggled with a large caseload for a number of years.

Chief Judge Elizabeth A. Kovachevich (M.D. Fla.)

"In our district," said Kovachevich, "visiting judges make a commitment to do civil and criminal cases, jury and non-jury. They come for protracted periods. They take big cases, big trials. They work five days a week and get a ton of work done." Said Kovachevich, "We think a lot of them."

Senior Judge Maurice B. Cohill, Jr. (W. D. Pa.) is one of the visiting judges Kovachevich is talking about. He was about to take senior status several years ago, and he offered his assistance in the Middle District of Florida to then Chief Judge Susan Black (now of the 11th Circuit). "I said if the court needs any help, call me." It did.

Senior Judge Maurice B. Cohill, Jr. (W. D. Pa.)

He has sat in all four cities in the Middle District as a trial judge and on the 11th Circuit as a court of appeals judge. He sits in 4-week intervals, more if he's in the middle of a trial.

"I take civil and criminal trials," Cohill said, "but more frequently criminal cases because the Middle District is inundated with drug cases. It is not a vacation."

In the fiscal year ending September 30, 2000, visiting judges helped terminate 1,475 civil cases, dealt with 843 defendants in criminal cases, and completed 343 trials in the district courts. In the courts of appeals, visiting judges helped dispose of 5,292 appeals.

By statute, judges may be temporarily assigned within their circuits or to courts outside their circuit. For assignments within a circuit, the chief circuit judge has the authority to designate judges. Each assignment must receive the consent of both the chief circuit judge and the chief judge of the lending court. For assignments outside a circuit, the chief circuit judge must submit a request for assistance on behalf of a specific court within the circuit and must certify that assistance is needed. This request is made to the Judicial Conference Committee on Intercircuit Assignments.

Senior Judge James C. Cacheris (E. D. Va.) chairs the Committee, which processes the paperwork and submits the request to the Chief Justice for final approval. The three-member committee assists the Chief Justice by maintaining rosters of judges available for intercircuit assignments.

"The visiting judge program works very well," said Cacheris. "The cooperation among the people taking assignments to help is terrific."

Senior Judge Frank J. Magill (8th Cir.) has worked as a visiting judge in every circuit except the Federal Circuit, the Seventh Circuit, and the D. C. Circuit. A midwesterner, he has found the nature of cases along the seaboards a change of pace from his own circuit.

Senior Judge Frank J. Magill (8th Cir.)

"I have found that along the eastern coast and Gulf, with their large concentrations of population," Magill said, "come the gargantuan commercial cases and the international law cases that we typically don't see in midland courts. There aren't many immigration cases in Fargo, North Dakota, but when I was in Pasadena, California, I handled 16 INS cases in a row for three days." He enjoys the opportunity to help a district that is short of judges, and he visits "to keep alive," he said. "It's a lot of mental work, but it is healthy."

Chief Judge Donald P. Lay (8th Cir.)

The pressures of workload and judicial vacancies are two reasons a court may look to visiting judges for assistance, but recusals are not uncommon. For example, Senior Judge Donald P. Lay (8th Cir.) is scheduled to sit in a case with two other judges this fall in a circuit where all the judges have recused themselves. In the nine years since he took senior status and began helping other circuits, he has sat as a visiting judge in every circuit except the D. C. Circuit.

To offer his assistance, Chief Judge J. Garvan Murtha in the District of Vermont has crossed the border—the state border—into the Northern District of New York. "The district, which adjoins the District of Vermont, was short of judges and had a huge caseload," said Murtha.

Chief Judge J. Garvan Murtha (D. Vt.)

"Over a period of several months, I dealt with pretrial matters mostly from my own court, and took pleas by video from the court in Albany, New York." He took a criminal case in the Southern District of New York where the defendant threatened one of the judges, and then demanded a judge outside the district to hear his case. He also spent two weeks in the southwest border courts as a visiting judge and will again this fall. "I met Judge Duplantier at a Rules Committee meeting," Murtha relates, "and he was very enthusiastic about having judges come down to the Texas border to help out."

Senior Judge Adrian G. Duplantier (E. D. La.) is Fifth Circuit Chief Judge Carolyn King's not-so-secret weapon in the border courts crisis. He directs what they call the Judicial Border Patrol.

Judge Adrian G. Duplantier (E. D. La.)

"Although we have many judges from across the country helping us out, the majority of people participating as visiting judges in our border courts are from our own circuit, particularly the Eastern and Western Districts of Louisiana," said King. "They hold mass guilty plea hearings and sentencings, and try cases back to back. They acquire a real expertise in handling border courts' dockets."

King decided early on that if the visiting judge program in her circuit was to work, it needed management by a district judge. That's where Judge Duplantier came in.

Chief Judge Carolyn Dineen King (5th Cir.)

"Chief Judge King got me involved in the Judicial Border Patrol," said Duplantier, "and I've enjoyed making the arrangements for visiting judges." Last year, 15 active and seven senior judges provided assistance to the border courts within the Fifth Circuit. He said that most judges are anxious to help because they know there is a need, even though it is not easy work.

"There has been a tremendous influx of cases along the southwest border," said Chief Judge Stephen McNamee of the District of Arizona. "On the criminal caseload there are immigration and drug cases, and with a huge population boom in the cities along the border a considerable civil caseload has swelled dockets." It takes a certain amount of judicial resources to process these civil and criminal cases. Unfortunately, before 1999, Arizona had had no additional judge resources for 20 years. The district received four new judgeships in the last two appropriations bills, although three of the judgeships have yet to be filled.

"In addition," said McNamee, "there was an influx of capital habeas cases. We now have nearly 50 such cases pending. We need people to help, and visiting judges have been generous in donating time to help us out."

Chief Judge Stephen McNamee (D. Ariz.)

The District of Arizona has what McNamee calls a multi-tier visiting judge program. "We try to be innovative with our visiting judges," said McNamee. Some judges come for criminal work for a given time, usually a period of two weeks. They try cases or take pleas and they do a significant amount of sentencing. Other judges will take a block of civil cases. "They'll be assigned 25 or more to handle," said McNamee, "and they'll hear them in Arizona, or via videoconfer-encing or teleconferencing. This has helped immensely to deal with our burgeoning civil dockets." Judge John W. Sedwick from the District of Alaska has taken some 125 cases.

"It's no vacation," said McNamee. "They show up in the dead heat of summer, and their workload exceeds what they'd do in their own district. When they come they work hard. But if not for them, we'd be in tougher shape than we are now."

Senior Judge Warren Eginton (D. Conn.) will spend six weeks in Tucson, Arizona, this fall. He has helped out before along the border and ranks it as a "great experience," even if sentencings of illegal border crossers in the overburdened courts can be, as he describes it, "like traffic court in New York City—a revolving door. They are administratively well prepared, but it's a tremendous caseload."

When McNamee talks about the innovative use of visiting judges, he could be talking about Chief Judge William Young (D. Mass.). Young is an unusual visiting judge—one who seldom leaves his own court. Yet he has taken 20 cases in Arizona and 10 in the Middle District of Florida, and has one case pending in Maryland, and he'll use videoconferencing to dispose of the cases.

Senior Judge Warren Eginton (D. Conn.)

"Videoconferencing is an attempt to help out other courts in an efficient, just, and inexpensive way," said Young. He only takes jury-waived cases. The matters he normally would handle in chambers he handles by phone conference; and those he'd handle in the courtroom, he handles by video. The Boston courthouse is well equipped for videoconferences, and the Middle District of Florida and Arizona have four cameras and one camera, respectively, available in courtrooms for videoconferencing. As a chief judge, Young was reluctant to leave his court for two to three weeks to work as a visiting judge. "With videoconferencing, I can fold these cases into my own caseload," said Young.

Whether it is by videoconfer-ence or in person, as McNamee points out, "Unless you have a judge in a courtroom available to resolve cases, you can't get a dispute settled." And, without a doubt, visiting judges handle caseloads. But can they compensate for judicial vacancies or needed judgeships?

"Visiting judges, while helpful, are a temporary solution at best," said McNamee. "We are grateful to them for their help, but they are not a panacea for the problem of huge caseloads."

Chief Judge William Young (D. Mass.)

The courts receiving the assistance of visiting judges aren't the only beneficiaries. There are a few unexpected bonuses to being a visiting judge. "If you ever want to learn how courts work at the grassroots level," said Young, "it has to be the most rewarding aspect for my team. The courts all do things very differently. So you learn a lot."

All the visiting judges have good things to say about the courts they visit, generally encountering staff who are "unfailingly wonderful," and judges who are "cordial and collegial."

In turn, visiting judges say that while working to help courts in trouble they've developed close friendships "born" as Duplantier says, "of difficult times."

"When visiting judges are needed," said Cacheris, "they go for a case, or a period of time, or a term of court. A great camaraderie develops." And as chair of the Intercircuit Assignment Committee, he is particularly gratified by one experience. "In all the times I've asked people to help out," he said, "I've almost never had a judge turn me down."