U.S. Rep. Joe Neguse has introduced legislation that would expand the number of federal trial judges in Colorado for the first time since 1984, and to authorize court proceedings to occur in northern Colorado.
“Colorado’s population has skyrocketed, especially in northern Colorado, over the last several decades. While our population and the caseload has certainly grown, the number of judges we have added to the federal bench has not," said Neguse, speaking at a congressional subcommittee hearing Wednesday.
Jeffrey Colwell, the clerk of the U.S. District Court in Colorado, welcomed Neguse's proposal, and said the federal courthouse in Denver has empty chambers and courtrooms that can be immediately put to use should the bill pass.
"If you give me two or three new judges tomorrow, I've got a place to put them," he said, cautioning that there are no current facilities to hold court in Fort Collins, as Neguse proposes.
In 2019, the Judicial Conference of the United States recommended that Congress create 73 additional trial court judgeships nationwide given the number of cases per judge, including two for Colorado. Colorado's two U.S. senators at the time introduced a bill to authorize those positions, but the Senate took no action.
"From the court's perspective, we aren't engaged in being political or lobbying," added Cowell, "but two or three would be fantastic news for Colorado."
The House Subcommittee on Courts, Intellectual Property, and the Internet heard from federal judges and legal scholars about the crushing caseloads in many parts of the country that prolong the legal process and impose severe burdens on courtrooms.
Chief Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California described how a vacancy in the district's Fresno courthouse is affecting the remaining judge there.
"One of his caseloads is assigned to nobody, Judge 'None.' N-O-N-E," she said. "The real judge holds criminal calendars four days a week. He cannot hold any hearings on civil motions and cannot set new civil trials."
The Judicial Conference has labeled Colorado as a "judicial emergency" due to high numbers of case filings in the seven-judge district court. One of the seats has been vacant since 2019, and the Biden administration has not yet sent a nomination to the U.S. Senate.
Congress, which establishes lower-court judgeships, last added a member to the court in 1984, when Colorado's population was just over half of what it is today.
U.S. District Judge Diane J. Humetewa, who is the first Native American woman and enrolled tribal member to become a federal judge, told the subcommittee that the tribal population is growing in her state of Arizona, and the district courts are tasked with handling many types of criminal cases in Indian Country. She also described the detrimental effects of high caseloads on parties who may face pressure to avoid proceeding to trial or oral arguments.
"I fear that in many ways, litigants see that the courtroom doors are closing rather than opening," Humetewa said. "It really does damage to what our courtrooms are meant to be: public forums for airing of these grievances and to be able to have the ability to orally argue your case, to make persuasive points that may not otherwise resonate in a paper form."
A 2019 report from in U.S. District Court in Colorado noted that the number of civil cases filed in 2019 was the highest ever since tracking began in 2002. Yet there were only 31 jury trials, suggesting that less than 1% of cases filed might eventually make it to trial. Also in 2019, the average time from filing a civil case to holding a trial was between 2.5 and three years.
"If the judicial branch is to carry any respect in the eyes of the public, it has to move with speed," said David Lane, a partner with Killmer, Lane & Newman who litigates in federal court in Colorado. He feared that once judges begin to address the backlog of trials that accumulated during the COVID-19 pandemic, "these courts are going to be nothing but criminal trials and the entire civil docket may be delayed by years. Urgent help is needed."
Although the House subcommittee hearing primarily focused on district court judgeships, several representatives raised the possibility of breaking apart the U.S. Court of Appeals for the Ninth Circuit. Based in San Francisco, the circuit is the largest, covering the entire west coast, and has 29 judges.
U.S. Rep. Ted Lieu, D-Calif., questioned witnesses about the possibility of moving some of the states into the U.S. Court of Appeals for the 10th Circuit, which is headquartered in Denver and hears federal appeals from six states.
Some Republican members of the committee, however, wondered aloud why Democrats had chosen this time to pursue adding district court judges, and suggested it was because a Democratic president was now in a position to make nominations. U.S. Rep. Steve Chabot, R-Ohio, recommended staggering the appointment of judges across multiple administrations.
“If there’s a leak in your roof, you don’t want to hear that you’re going to have someone fix it a year from now or four years from now," countered Marin K. Levy, a professor at Duke University School of Law. "You want it fixed as soon as possible."
Russell O. Stewart, who serves on the board of the Faculty of Federal Advocates and is also the mayor of Cherry Hills Village, said that in part, Colorado has not seen disastrous effects from increased filings because senior judges — former district court judges who retire but still continue to handle cases — have eased the workload.
Of the move to add Fort Collins to the list of authorized locations to hold court, Stewart voiced his support because "a lot of the attorneys and the parties who live up there, it's more convenient for them."