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.

Although the McVeigh case accelerated the problem, the strain on Denver's federal courts began long before the 1995 bombing in Oklahoma City. The bench has been chronically understaffed for at least twenty years.

Despite a mammoth surge in population, a booming economy fueled by high-tech industries (resulting in more patent and copyright suits) and an upswing in criminal cases spawned by wave after wave of federal crime bills, the Colorado district is still presided over by just seven judges, the same number for which it was authorized in 1985. And much of the time, due to vacancies created by judges retiring or taking senior status, the district hasn't had even that many bodies on the bench.

With Judge Weinshienk's recent move to a senior judgeship, the district now has only six active, full-time judges. That's three short, according to the Judicial Conference of the United States, which recommended the addition of one temporary and one permanent judgeship to Colorado's total two years ago. But such positions must be approved by Congress, which has been slow to create new positions or to fill vacancies--Republican senators tend to be less than enthusiastic about judges nominated by a Democratic president, and vice versa--despite a national vacancy rate in federal judgeships that approaches one in ten. The last time Congress authorized any new district seats was nearly nine years ago.

"Given the political climate, we can't expect those positions to be filled in the near future," says Robert Hoecker, circuit executive for the Tenth Circuit, which oversees the federal districts in Colorado and five other states. "Consequently, they are in a world of hurt over there."

Other districts have attempted to cope with the shortage by expanding the power of the magistrate judges; in districts with heavy criminal dockets, such as Southern California and Southern Florida, magistrates now hear a hefty percentage of civil cases. But Colorado resisted such a move for years. This month the district reluctantly became the last in the country to allow magistrates to try civil cases instead of operating simply as case managers. The objection was a philosophical one, says Judge Matsch, rather than a reflection on the abilities of the local magistrates, who tend to be highly regarded by attorneys for their willingness to cut through the paperwork.

"There has been some concern by some judges whether the magistrate system is constitutional," Matsch explains. "But we have been won over out of necessity. How that will play out, only time will tell us."

Since both parties must agree to the appointment of a magistrate to try their case, several judges have expressed doubts about how effective the new system will be in lightening their caseload. They're also skeptical of legislative efforts to speed up justice by requiring judges to become more "pro-active" in managing cases. One such innovation, the Civil Justice Reform Act of 1990, was supposed to reduce costs and delays by implementing strict litigation timelines and greater use of alternative dispute-resolution procedures. But after six years, a study by the Rand Institute concluded that the CJRA pilot program had little effect on the time or cost of civil cases; cases that did get resolved quicker didn't necessarily end up costing any less.

One of the few positive results of the CJRA, the Rand study noted, was a requirement that judges file semi-annual reports on their backlog of cases and pending motions; if nothing else, the reports made the judges more aware of just how far behind they were falling. That point was also hammered home by a local CJRA advisory group consisting of attorneys and court officers. In 1993 the group surveyed attorneys, who "identified the failure of the district judges to rule promptly on motions as the most significant cause of delay."

The advisory group concluded that "the problem is much greater with some judges than others...This fact suggests that the delay...is probably due to administrative difficulties rather than workload."

"The advisory group recommended some changes, and the court did not adopt them," recalls Denver attorney Thomas Seawell, who co-chaired the group with then-chief judge Sherman Finesilver. "They were designed to force judges to rule on motions more rapidly. The judges didn't like the solutions, and, boy, it's hard to come up with solutions."

Seawell recently ended his term as president of the Faculty of Federal Advocates, an organization of more than 600 attorneys who practice in Colorado's federal courts. Like the CJRA advisory group before it, the FFA has continued to raise concerns about delays in motion rulings. Matsch says he's "enthusiastic" about the group's interest and is working closely with it to devise a master calendar for the district that will help schedule and dispose of less complex cases. But Seawell says he continues to be mystified by the extraordinary delays in civil cases.

"I don't know what the reasons are," he says. "You can talk about workloads, but there must be some districts that have as many cases. I know of no rational explanation for it."

Yet other observers claim that reasons aren't hard to find, starting with the fact that civil cases take a backseat to criminal matters. Nationally, thanks largely to the drug war, new laws on immigration and the like, the federal judiciary is facing the greatest increase in criminal filings since the days of Prohibition. Colorado hasn't been hit as hard as some border districts by the federalization of what used to be state or local cases, but the criminal caseload has risen by more than 50 percent in the past decade, from 249 cases in 1987 to 388 cases in 1997.

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