April 2011

1. Government Relations Committee Report to the National Council

At the March 19 meeting of the FBA National Council, Government Relations Committee Chair Larry Westberg provided a report on the recent activities of the GRC. The report addresses the GRC’s work on judicial vacancies, including the February 28 forum sponsored by the FBA and the Brookings Institution, and the funding situation of the federal courts. Click here to read the report.

2. Judicial Vacancies

Over the past two months, the Senate has gradually confirmed more judicial nominees to the federal district and circuit courts. This is an outgrowth of the bipartisan agreement reached by Senate leaders in late January. As of April 19, 2011, there were 92 vacancies in the Article III courts, with 42 nominees pending in the Senate.

For a current report on the status of judicial vacancies in the federal courts, click here.

The Administrative Office of the U.S. Courts predicts at least 23 more vacancies this year due to announced retirements or resignations.

3. Funding for the Federal Courts

FY 2011 Budget

On April 14 the House and Senate passed and the President signed the FY 2011 continuing resolution to fund the federal government through the remainder of the fiscal year ending September 30. Final FY 2011 funding for the federal judiciary is $6.91 billion, about 1 percent above the FY 2010 spending level. This represents an excellent outcome in light of the steep funding cuts to other federal programs and agencies that White House and Congressional negotiators agreed to during deliberations on a final, full-year spending measure.

This means that there should be sufficient funding to meet minimum requirements for most spending accounts in the federal judiciary, including the courts’ Salaries and Expenses, Defender Services and Court Security accounts. Sufficient funding in the Defender Services account should allow for CJA panel attorney payments for the remainder of the fiscal year.

FY 2012 Budget

With final passage of the FY 2011 federal budget completed, Congressional consideration of the FY 2012 budget is underway. The federal judiciary has attempted to walk a tightrope in continuing to balance workload growth without making unrealistic funding requests of Congress. The judiciary’s FY 2012 funding request, which received a House hearing on April 6, is the smallest requested increase on record.

At the hearing, Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, warned the House Appropriations Subcommittee on Financial Services and General Government, of the “impact on the federal court system and the administration of justice in this country,” of proposed spending cuts, especially in light of requested increases for the Department of Justice and the Department of Homeland Security, which will further increase the workload of the federal courts. Overall, the Judiciary’s workload is already at or near record levels in most filing categories.

“We do not have the discretion to decline or defer cases based on resource constraints,” Judge Gibbons said. “We are required to adjudicate the cases that are brought to us regardless of staffing and resource levels in the federal courts.” A large funding shortfall would affect staffing levels, with significant losses in clerks of court and probation and pretrial services offices nationwide.

For fiscal year 2012, the Judiciary seeks $7.3 billion in appropriations, $299 million above the fiscal year 2011 assumed appropriations level. The Judiciary’s funding requests for its three largest accounts are:

  • Salaries and Expenses. The Judiciary’s largest account funds the bulk of federal court operations, including the regional courts of appeals, district courts, bankruptcy courts and probation and pretrial services offices. This account requires $5.2 billion for FY 2012. 
  • Defender Services. This program, which provides criminal defense services to indigent defendants under the Criminal Justice Act, requires a $1.1 billion increase in FY 2012 to handle 206,200 defense representations. 
  • Court Security. A funding level of $513 million would provide for additional court security officers, cover higher Federal Protective Service costs, and fund improvements to security at federal courthouses.

The Judiciary still spends a huge amount – nearly $1 billion on renting courthouse space from GSA. The judiciary has been devoting a lot of effort to bringing those costs down.
Projected rent payments to GSA are nearly $400 million below the 2012 rent projection made prior to initiating cost-containment efforts” seven years ago.

4. Lawsuit Abuse Reduction Act and Rule 11

On March 11, the House Judiciary Subcommittee on the Constitution held a hearing on the Lawsuit Abuse Reduction Act. The bill would amend Rule 11 of the Federal Rules of Civil Procedure to impose more stringent sanctions on those who file frivolous lawsuits.

Identical versions of the bill have been introduced in the House and the Senate. House Judiciary Committee Chairman Lamar Smith (R-Texas) introduced the House measure (H.R. 966) and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) then introduced a companion bill in the Senate (S.533).

The proposed legislation would make sanctions for violations mandatory and would include attorney’s fees and costs in the penalties assessed. The current version Rule 11 provides that a federal district court “may” impose an appropriate sanction on a lawyer, law firm or party that files any paper in court without an attorney’s signature, which certifies that, after reasonable inquiry, it is not presented for any improper purpose, it is not frivolous, and the factual contentions or defenses have evidentiary support.

The Lawsuit Abuse Reduction Act would do three primary things:
-- Requires sanctions if there is a Rule 11 violation.
-- Requires that judges impose monetary sanctions against lawyers who file frivolous lawsuits.
-- Reverses the 1993 amendments to Rule 11 that allow parties and their attorneys to avoid sanctions for making frivolous claims by withdrawing them within 21 days after a motion for sanctions has been served.

The sides in support and against the bill are pretty clear. The bill is promoted by the business community. It is opposed by the trial defense bar community. It is likely to pass the House, but unlikely to get through the Senate.

Because of the issues raised by the legislation and its potential impact upon the federal bar, the FBA is examining the legislation with the aid of its Professional Ethics Committee, Federal Litigation Section and Government Relations Committee. These components will exchange their findings and views and present them to the Board of Directors for further consideration.

5. Judiciary Inspector General Legislative Proposals

Legislation has been introduced in the House and the Senate establishing an Inspector General for the Judicial Branch. The bills (S. 348, H.R. 727) have been introduced by Sen. Chuck Grassley (R-IA) and Rep. James Sensenbrenner (R-WI). For more information, click here. In 2006, the Federal Bar Association opposed similar legislation.

6. SCOTUS Recusal Bill

Rep. Chris Murphy (D-CT) has introduced legislation in the House of Representatives that would alter the ways that Supreme Court justices handle ethical questions, including recusals. The legislation, the “Supreme Court Transparency and Disclosure Act of 2011,” (H.R. 862) would require the Judicial Conference to set up a process for taking in ethics complaints about the justices, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice. It would subject justices to the same Judicial Conference code of conduct that governs other federal judges. By tradition, the justices already abide by it, and the justices are covered by the federal statute governing conflicts of interest for federal judges

The ways the Supreme Court handles ethics issues, largely through internal means with varying degrees of disclosure has long been subject to criticism by lawmakers and legal ethics experts. Recently, more than 100 law professors signed a letter favoring ethics legislation aimed at the Supreme Court. Murphy said the justices’ recusal decisions leave the public with too little information. “There is often a mystery as to why a recusal doesn’t happen, and there is often mystery as to why a recusal does happen,” he told Blog of the Legal Times.

Prepared by Bruce Moyer
Counsel for Government Relations
Federal Bar Association
Email: grc@fedbar.org

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