Bench Pressed

The logjam in Denver's federal district court is one of the worst in the country. Blame Congress, Timothy McVeigh, greedy lawyers -- and judges who don't have time to judge.

--On September 21, 1991, Layne Schmidtke, a 24-year-old Army private, was beaten to death by a group of high-school students after a brief altercation on a downtown street in Colorado Springs. In 1992, Schmidtke's widow sued the city, the police chief and various other defendants, claiming that the police failed to respond properly to earlier reports that night of other fights involving the same group of marauding youths. After the usual legal maneuvering, attorneys for the city filed a motion for summary judgment in 1995. Since that time, the case has been shifted from Judge Zita Weinshienk to Judge Wiley Daniel to Judge Miller, who's had it since 1996. The parties are still waiting for a ruling on summary judgment before the case can proceed.

--Back in 1994, a federal prisoner named Wa'il Mansur Muhannad filed a lawsuit against a corrections officer who had allegedly assaulted him after a disagreement about a strip search. As in the Schmidtke case, discovery was halted in 1996 while both sides awaited a ruling from Judge Nottingham on the defense's motion for summary judgment. More than two years later, they're still waiting.

--The 1995 civil-rights case Gamble v. Carlton, a complicated quest for damages stemming from a child-custody dispute, includes among its named defendants dozens of individuals, several private corporations, and government agencies in Colorado and elsewhere. The case also raises some thorny questions about whether certain defendants who are government employees possess "qualified immunity" from such a lawsuit. After more than three years, many of the questions are still unanswered, since the case has been passed like an ugly rumor from Judge Sparr to Judge Daniel to Judge Miller. Last November, Miller punted the case to Judge Matsch, citing a potential conflict of interest.

It's no accident that Miller and Nottingham, the two judges with the largest stash of moribund motions, also are the main targets of attorney's broadsides. Neither judge is terribly popular with civil attorneys. Miller, a former Greeley attorney who was appointed to the federal bench in 1996, is regarded in some circles as "still finding his sea legs"--or slowly sinking beneath the waves. Nottingham, on the other hand, has the reputation of being a no-nonsense taskmaster who's been known to set motions hearings at the crack of dawn, a practice many attorneys view as punitive ("Early to Rise," November 27, 1997).

Yet it would be a mistake to lay the problems in federal court at the feet of a couple of judges. Nottingham declined to comment for this article, but even a cursory examination of his "motions pending" figures turns up many occasions for distortion--for example, more than a dozen motions in a single case that was thrown out of court by a magistrate judge shortly after the figures were compiled. (Heedless of the dismissal, the litigious motion-filer has since added Nottingham and the magistrate to his list of defendants in an amended complaint.) Significantly, Nottingham's backlog of motions more than doubled in size following Matsch's taking on McVeigh and the reassignment of the rest of his cases to his colleagues.

Miller says his growing mound of paper is a function of too many cases and not enough time. "This is just simply workload and what I inherited," he explains. "I have essentially stayed in the same position with civil cases while inheriting a sizable criminal docket. I work like hell to stay in the same position. I hope I'm going in a positive direction. I've been to school a couple of years now and certainly do things more efficiently than I used to."

Judges cite a vast array of reasons for the gumming up of their courts. They range from the obvious--not enough judges to handle the caseload--to subtle observations about each other's work habits and management styles. They encompass intricate scenarios of cause and effect involving the drug war, the explosion of criminal cases, Denver's position as the seat of justice for much of the Rocky Mountain West, and the boom in volume and sophistication of the kind of civil cases they're now seeing. They include, not surprisingly, some theories about the role that hungry lawyers and much-manipulated legal procedures play in fostering and perpetuating the mess. But not even the wise men and women of the bench can agree on a single course of action to break the logjam.

"Trial judges are so swamped with doing the day-to-day, Orwellian kind of work, passing one file on to the next, that it's difficult to get away from it and look at what needs to be done," says Judge John L. Kane Jr., one of the veterans of Denver's federal bench. "I think judges desperately want to see some changes made. But when you're digging the ditch, you can't see the horizon."

For the past ten years, Kane has been semi-retired--on "senior status," as they say around the courthouse, taking only the cases he wants to take. A few years ago he took an entire year off for health reasons and spent considerable time pondering the problems facing the federal judiciary.

"I gave all of this some thought," Kane recalls, "and one of the thoughts I had was never to come back. It's kind of a Sartrean nightmare to be chained to this stuff."

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