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In re Approval of the Judicial Emergency Declared in the District of Arizona (9th Cir. 03/02/2011)

March 2, 2011

IN APPROVAL OF THE JUDICIAL EMERGENCY DECLARED IN THE DISTRICT OF ARIZONA


FOR PUBLICATION

ORDER

Before: Alex Kozinski, Chief Judge, Procter Hug, Jr., Sidney R. Thomas, Raymond C. Fisher, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges, Audrey B. Collins, Roger L. Hunt, James Ware, Chief District Judges, and Stephen M. McNamee and Robert H. Whaley, District Judges.

ORDER

On January 20, 2011, Chief Judge Roslyn Silver declared a thirty day judicial emergency in the District of Arizona pursuant to 18 U.S.C. § 3174(e). Finding no reasonably available remedy, the Judicial Council agreed to continue the judicial emergency for an additional one-year period and suspend the time limits of 18 U.S.C. § 3161(c). The continued judicial emergency will end on February 19, 2012.

The attached Report by the Judicial Council of the Ninth Circuit Regarding a Judicial Emergency in the District of Arizona constitutes the findings of fact and conclusions of law of the Judicial Council justifying a declaration of judicial emergency pursuant to 18 U.S.C. § 3174. This report was submitted to the Director of the Administrative Office of the U.S. Courts. See 18 U.S.C. § 3174(d).

REPORT OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT REGARDING A JUDICIAL EMERGENCY IN THE DISTRICT OF ARIZONA

Submitted to the Administrative Office of the U.S. Courts Pursuant to 18 U.S.C. § 3174(d)(1)

March 2, 2011

On November 24, 2010, the late Chief District Judge John Roll initiated the process to declare a judicial emergency in the District of Arizona under 18 U.S.C. § 3174. He reported a crushing criminal caseload and inadequate judicial resources, and sought the Ninth Circuit Judicial Council's approval in declaring an emergency that would suspend the time limits of the Speedy Trial Act (STA) for bringing accused criminals to trial. This request is virtually unprecedented: only two circuit courts have approved a judicial emergency under 18 U.S.C. § 3174(e) since the Speedy Trial Act was enacted, both occurring over 30 years ago.

With existing circumstances already dire, the tragic death of Judge Roll on January 8, 2011, caused Chief District Judge Roslyn Silver to declare a judicial emergency under 18 U.S.C. § 3174(e). This judicial emergency period commenced on January 20, 2011 and ended February 19, 2011. Chief District Judge Silver sought the Judicial Council's approval to extend the suspension of time limits for one year pursuant to 18 U.S.C. § 3174(b). After gathering additional data, and engaging in extensive discussion about the extraordinary circumstances, the Judicial Council found no reasonably available remedy, and thus agreed to declare a judicial emergency and suspend the time limits required by 18 U.S.C. § 3161(c) for one year. The continued judicial emergency commenced on February 20, 2011, and will conclude on February 19, 2012.

Under 18 U.S.C. § 3174(d), the Judicial Council hereby submits to the Administrative Office: (1) the District of Arizona's application for a declaration of a judicial emergency, (2) a written report stating in detail the reasons for granting the application, and (3) a proposal for alleviating congestion in the district.

I. A Judicial Emergency Exists in the District of Arizona

A. 18 U.S.C. § 3174: the Judicial Emergency Provision

According to 18 U.S.C. § 3174(a), upon application by the district, the judicial council "shall evaluate the capabilities of the district, the availability of visiting judges from within and without the circuit, and make any recommendations it deems appropriate to alleviate calendar congestion resulting from the lack of resources." If a judicial council finds no reasonably available remedy, it may declare a judicial emergency and suspend the 70-day time limit for a period up to one year, instead allowing up to 180 days before a trial must commence. See 18 U.S.C. § 3174(b). The time limits to try detained persons "who are being detained solely because they are awaiting trial" are not affected by the emergency provision. Id. If the time limits are not suspended, the sanction for not bringing a defendant to trial within 70 days of the filing of the indictment is a dismissal of the indictment. See 18 U.S.C. § 3162(a)(2).

The statute does not specify what qualifies as an emergency or what factors to assess before determining that there is "no reasonably available remedy." In the legislative history of the Speedy Trial Act, many members of Congress commented on the importance of a court's resources to be able to comply with the Act's time limits, and the ability to suspend time limits if a court could not meet those requirements. See 120 Cong. Rec. 41,773, 41,775 (1974). The legislative history supports that an emergency situation would include the death or incapacity of a judge. Id.

Congress did not intend that a district court demonstrate its inability to comply with the STA by dismissing criminal cases and releasing would-be convicted criminals into society. See H.R. Rep. No. 93-1508 at 80-82, reprinted in 1974 U.S.C.C.A.N. 7401. In fact, the emergency provision has been used twice previously to avoid imminent criminal dismissals as a sanction for non-compliance. See United States v. Bilsky, 664 F.2d 613, 619-20 (6th Cir. 1981) (Sixth Circuit suspended time limits for one year in the Western District of Tennessee shortly after the Speedy Trial Act became effective in 1980); United States v. Rodriguez-Restrepo, 680 F.2d 920, 921 at n.1 (2d Cir. 1982) (Second Circuit approved emergency for the Eastern District of New York, noting the district's "burgeoning caseload and calendar congestion.").

In addition to the statutory judicial emergency, as outlined above, the District of Arizona also has a "judicial emergency" as defined by Judicial Conference policy. A vacancy on a district court is considered an "emergency" if the court's "weighted filings" exceed 600 per judgeship. The District of Arizona's weighted filings, 653 per judgeship, are high enough that Judge Roll's judgeship became a judicial emergency immediately upon his January 8 murder. See Russell Wheeler and Sarah Binder, Do Judicial Emergencies Matter? Nomination and Confirmation Delay during the 111th Congress. The Brookings Institute, Feb. 16, 2011, at 1, available at http://www.brookings.edu/papers/2011/0216_judicial_ emergencies_wheeler_binder.aspx.

B. The District of Arizona's Application

The District of Arizona's application includes the late Chief District Judge Roll's letter dated November 24, 2010, Chief Judge Silver's letter dated January 25, 2011, and Chief Judge Silver's Declaration of a Judicial Emergency in General Order No. 11-02. See Tabs A-C. In his letter, Judge Roll reported that the District of Arizona has the sixth-highest weighted and the third-highest un-weighted caseload in the nation. In Fiscal Year (FY) 2009, the District of Arizona ranked first in the Ninth Circuit and third in the nation in criminal case and defendant filings, an increase of 65% since 2008.

This increase particularly affects the Tucson division. In his November 24, 2010 letter, Judge Roll explained that the then four active judges and one senior district judge in Tucson were scheduled at that time to hear 919 trials, including 893 jury trials, 73% of which involve either immigration or drug charges. See Tab A at pp. 2-3. It has been the practice of the Tucson judges to set 30 cases for jury trial each Tuesday, but the district judges cannot preside over more than two trials per week. Clearly, that schedule is premised on the likelihood that most cases will plead out, or defendants will agree to a continuance. Now, with Judge Roll's death, resulting in two vacancies on the Tucson bench, the situation has become intolerable.

As further described by Chief Judge Silver, since the death of Judge Roll, the three remaining Tucson judges are facing over 1,000 felony cases each. See Tab B at p. 1. Judge Roll's death raised the number of vacancies in the District of Arizona to three, with a vacancy created in Tucson when District Judge Zapata took senior status, and another created in Phoenix when Judge Murguia was elevated to the Ninth Circuit Court of Appeals. Id. At this time, there are no nominees for these three vacancies.

II. Reasons for Granting the District of Arizona's Application

The District of Arizona's application sets forth the reasons why a judicial emergency exists in Arizona. The data detailed below shows that the District of Arizona has calendar congestion because of an inordinate amount of criminal cases, criminal defendants, and a lack of judicial resources.

A. Current Caseload Status of the ...


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