November/December 2010:
Courthouse Construction Could Slow Down in Tight Times

Washington Watch | November/December 2010
By Bruce Moyer

Rising costs, budget realities, and planning concerns threaten to stall a multibillion dollar boom in the construction of federal courthouses. As many as 29 federal courthouse construction projects could be affected if Congress imposes a moratorium on courthouse construction because of a government spending freeze next year. Congress last imposed a moratorium on federal courthouse construction in 2004.

Renewed budget pressures add to continued tension between the federal judiciary, the General Services Administration, the Congress, and the Government Accountability Office (GAO) over the unapproved costs of some courthouse construction projects and whether federal judges are taking sufficient steps to share their unused courtrooms with one another as a way to avoid added costs.

In testimony before a House subcommittee on Sept. 29, the GAO, Congress’ watchdog, reported that 32 of the 33 federal courthouses completed since 2000 had more space than needed— more than 3.5 million square feet, adding up to as much as nine average-sized courthouses. The GAO also reported that many of the new courthouses were above congressionally authorized size limits; 27 of the 33 district courthouses completed since 2000 exceeded their congressionally authorized size by a total of 1.7 million square feet. According to the GAO, 15 courthouses exceeded their congressionally authorized size by more than 10 percent, and 12 of the 15 also had total project costs that exceeded the estimates provided to congressional committees. In addition, the future cost of this extra square footage is even more alarming, the GAO said, because ongoing courthouse operations and maintenance costs will increase substantially.

These overruns, according to the GAO, were attributable to overestimates by the judiciary of the number of judges that would occupy these courthouses by the time they were completed. Congress has not created the additional federal judgeships that the judiciary has requested, nor has it passed a comprehensive judgeships bill since 1990. At the September hearing, witnesses representing the federal judiciary told lawmakers that the Administrative Office of the U.S. Courts has a valid system for analyzing future construction and renovation needs, based on various
factors, including prior caseload and trial track records, general safety and post-9/11 security considerations, and the ability to conduct a proper trial.

The issue of sharing courtrooms and whether the federal judiciary is doing enough to share existing courtroom space adds fuel to the fire. Using data provided by the judiciary, the GAO told Congress that courtrooms are used for case-related proceedings only a quarter of the available time or less, on average. The GAO’s computer simulation modeling of federal courtroom use suggested that three district judges could share two courtrooms, three senior judges could share one courtroom, and two magistrate judges could share one courtroom with time to spare. The Administrative Office of the U.S. Courts strongly criticized the GAO for the methodology it used to arrive at those recommendations.

Over the last two years, the Judicial Conference, the policy-making arm of the federal judiciary, has adopted courtroom sharing policies for future courthouses uner which senior district and magistrate judges will share courtrooms at a rate of one courtroom for every two senior judges and one courtroom for every two magistrate judges in courthouses that have three or more magistrate judges, plus one courtroom for magistrate judges’ criminal duty proceedings. The judiciary is also in the process of studying whether sharing courtrooms is feasible in bankruptcy
courts and plans to study the feasibility of courtroom sharing by active district judges in courthouses that have ten or more active district judges.

The federal judiciary clearly needs to have adequate, secure, modern facilities to carry out its responsibilities for administering justice and ensuring the safety of all participants in the judicial
process. Decisions over whether and where new courthouses need to be built, how they should be designed, and how many courtrooms they should contain are not easy.

In the recent past, the judiciary has taken moderate steps to implement courtroom sharing policies that balance stewardship of taxpayer dollars with the need of ready access to justice. But Congress is likely to insist on more from the judiciary, while seeking to maintain the availability of dignified and safe courtrooms that serve as the delivery rooms of justice.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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