May 23, 1977
Page 16092
The Senator from Maine (Mr. MUSKIE), for himself and Mr. HATHAWAY, proposes an unprinted amendment numbered 285.
Mr. MUSKIE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 6, line 20, insert the following: "one additional district judge for the district of Maine," Immediately after "Louisiana,".
On page 10, strike out "1" in the item referring to Maine and insert "2".
Mr. MUSKIE. Mr. President, the amendment which I am submitting with Senator HATHAWAY provides an additional Federal district court judge for the district of Maine. Maine is presently one of only three States which is served by one judge. We have been fortunate to have enjoyed the dedicated services of an outstanding jurist in Judge Ed Gignoux, whose hard work and careful administration have enabled Maine to avoid most of the problems confronting our overworked court system.
But it is clear that the increasing administrative responsibilities imposed on Federal district court judges, the growing complexity of Federal civil and criminal proceedings and the increasing workload in the district of Maine makes continual service by one judge impractical and inefficient.
The need for an additional district court judge can be clearly demonstrated.
The pending civil caseload as of April 30 was 400 cases and projections from the first 4 months of the present calendar year indicates filings in excess of 600 cases can be expected this year — well above, I believe, the Judiciary Committee's standard of need.
Beyond the basic statistics the increasing complexity and resulting time demands of criminal cases and the dramatic increase in the variety of civil cases including environmental enforcement actions, actions related to the 200 mile limit and the Maine "Indian cases," which have been described by the Justice Department as potentially the most complex civil litigation ever brought in Federal court, make effective operation as a one-judge district increasingly difficult and impose unnecessary delays on litigation.
The geographic area of Maine makes service to the entire State and particularly the northern division particularly difficult. Recent protracted litigation and the brief hospitalization of Judge Gignoux clearly demonstrated the absolute necessity to provide additional flexibility with an additional judge.
Mr. President, the case for an additional judge was further presented in a letter from Senator HATHAWAY and myself to Senator EASTLAND in support of this amendment and in a letter we recently received from Judge Gignoux. I ask unanimous consent that copies of these letters be included in the RECORD at this point.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
U.S.SENATE,
Washington, D.C.
Hon. JAMES O. EASTLAND,
Chairman, Committee on the Judiciary,
Dirksen Senate Office Building,
Washington, D.C.
DEAR. Mr. CHAIRMAN: The purpose of this letter is to call your attention and the attention of the other members of the Committee to the need for an additional federal district court judgeship for Maine, and to urge the Committee to adopt our amendment creating that judgeship. While we recognize that Maine falls barely short of meeting the statistical criteria set out by the Committee, we believe there are several unique circumstances in Maine which combine to demonstrate beyond doubt the need for this judgeship.
Maine's 1976 "record", according to the Judicial Conference, indicates that the court processed 94% of the new filings and 90% of the terminations required under the criteria. And while bench days totaled only 65% of the days thought to be necessary to justify a new judge, extenuating circumstances which are explained in the text of this letter make this an extremely misleading figure.
The circumstances to which we refer include the particular problems experienced in a State with only one district court judge; the unique geography of Maine, which greatly exacerbates those problems; the fact that neighboring courts in the circuit, and particularly Massachusetts, are too overburdened to provide additional support for Maine; and the fact that Maine's docket contains a large number of extremely complex cases, including one recently characterized by the Justice Department as "potentially the most complex litigation ever brought in the federal courts."
In the balance of this letter, we will briefly elaborate on each of these circumstances.
1. The one-judge district court
Most analysts now agree that the one-judge statewide district court is an anachcronism that should no longer be tolerated in our federal judiciary. With the increasing administrative burdens of the modern judicial system, we can no longer expect one judge to shoulder those burdens for a statewide court, while at the same time conducting trials and otherwise keeping abreast of the increasingly complex and demanding substance and procedure of federal litigation.
Simply to hold himself or herself constantly available for temporary restraining orders or other emergency litigation on a statewide basis, while conducting all the other business before the court, can tax the endurance of even the finest judge. And when a State's lone judge is ill, takes a vacation, or is otherwise unavailable in the State, it is the quality of justice itself which suffers the greatest harm.
It is ironic that this situation can be made even worse in a State if the quality of its single district judge is high. Such an individual is often called upon to perform tasks and take on responsibilities outside the normal scope of court business, leading to further difficulties providing service within the State. In the case of Maine, Judge Gignoux has had precisely that "problem". His skills are widely recognized outside the State resulting, for example, in his participation in the activities of the American Law Institute and other preeminent national legal forums, as well as in his temporary assignment to important cases outside the State, such as the Chicago conspiracy contempt proceeding.
2. The unique geographic problems of Maine
Even among the few remaining one-judge states, Maine has unique geographic characteristics that considerably exacerbate the problems of the one-judge court.
To begin with, Maine's one million residents are spread over 33,215 square miles, as compared with 8,257 for Massachusetts, or 9,304 for New Hampshire. Filing, termination and bench day figures become less significant by themselves when you consider that Maine's single judge commutes regularly between Portland and Bangor, a distance of 150 miles. And the litigants can be even more inconvenienced than the judge. When he sits in Portland, for example, suitors from the St. John Valley must travel over 350 miles simply to obtain a temporary restraining order!
3. Overburdened neighboring courts
In addition to geographic problems within the state, the isolation of Maine vis-a-vis the rest of the country can also add to judicial difficulties, especially when emergencies arise which are beyond the workload capacity of the one available judge (or which might occur during his absence or illness). Maine actually shares a border with only one other American state: New Hampshire. And the courts in New Hampshire and Maine's other reasonably proximate neighbor, Massachusetts, are themselves too overburdened to fill in readily when the Maine court requires assistance.
Indeed, it can be argued that an extra judge in Maine would also be available to sit in other nearby states, whose dockets are expected to continue to be jammed, despite new judgeships created by this bill.
4. Unique caseload in Maine
Finally, although Maine's docket appears on the surface to be lighter than average, in fact the court is burdened with an unusual number of cases with heavy evidentiary requirements and complicated procedures.
The State's geography is also a causal factor here. Maine is a maritime State, with 8,500 miles of shoreline, and its economy is heavily dependent on its proximity to the sea. The court thus handles a relatively large number of maritime and marine injury cases, which can be extremely burdensome and time-consuming.
Maine's 1976 docket contained 11 marine injury cases, for example. It also contained 34 civil rights cases, 15 fraud cases, 9 forgery or civil fraud cases, 9 labor lawsuits, 9 United States contract cases, and 62 cases involving other contracts. All of these matters represent difficult cases not easily disposed of, and the Maine docket is thus far from being as simple as it might appear.
The Maine docket also currently contains one case so unique as to defy comparison in terms of normal district court workload. This is the now famous Maine Indian lawsuit against the State, in which Indian tribes have claimed huge money damages and millions of acres of Maine real estate. It should rarely be argued that an additional judge is justified solely on the basis of a single case. However, if this suit is not settled by the parties, a convincing argument to that effect could easily be made. Even if the case is ultimately settled, ancillary matters, both procedural and substantive, might easily tie up the court for months, or even years. Suffice it to say that the Justice Department, in a memorandum to the Court, noted—
"... that this is potentially the most complex litigation ever brought in the federal courts, with social and economic impacts without precedent and incredible potential litigation costs to all parties:"
For these reasons we strongly urge you, Mr. Chairman, and the members of your committee, to support our amendment to S. 11, and create a second district court judgeship for Maine. We believe that after considering all the non-statistical arguments in favor of such an action, you can come to no other conclusion but that it is long overdue.
Please enter this letter into your hearing record on S. 11, pursuant to the letter we received from Senator John McClellan, dated February 22. And please feel free to call upon either of us if you have any further questions about this matter, or any other matter of mutual concern.
With best regards.
Sincerely,
EDMUND S. MUSKIE,
WILLIAM D. HATHAWAY, U.S. Senators.
U.S.DISTRICT COURT,
Portland, Maine,
May 11, 1977.
Re: Omnibus Judgeship Bill, S. 11 and Amendments: District of Maine.
Hon. WILLIAM D. HATHAWAY,
U.S. Senate,
Washington, D.C.
DEAR BILL: In accordance with your request, I am writing to urge the creation by the Congress of an additional district judgeship for the District of Maine. I am aware that, on the basis of past performance (ignoring projections), the caseload in this Court does not meet the criteria adopted by the Senate Judiciary Committee for determining the need for an additional judge. But after extended deliberation, I have come to the conclusion that I would be derelict in my responsibilities if I did not present this request. The fact is that the combined civil and criminal caseload in this Court, plus the administrative burdens which I must carry as the only district judge, have increased to the point where a second district judgeship can be more than justified. I am also of the view that the bar of this State, particularly in the Bangor area, is entitled to the services of a second full time judge.
Summarily stated, the principal reasons for this request are the following:
(1) As shown on the attached "Statistical Profile" prepared by the Administrative Office of the United States Courts, for fiscal year 1976 a total of 356 cases were filed in this District, of which 273 were civil actions and 83 were criminal actions; the total weighted filings were 367; 341 cases were terminated; and there were 334 cases pending at the end of the period. Although this statistical record does not meet the standard of need adopted by the Senate Judiciary Committee — case filings of 400 or more and terminations in excess of 358 per judge — for the first four months of the present calendar year (January 1-April 30) 191 civil cases and 30 criminal cases have been filed, a total of 221 filings. Projected over a twelve months period, this indicates total filings for the current year in excess of 600. Incidentally, my pending civil caseload as of April 30 is 400 cases.
(2) As you are undoubtedly aware, the bare statistics tell only part of the story:
(a) Largely. I believe, as a result of the Criminal Justice Act, the percentage of guilty pleas in criminal cases has dropped, in line with national experience, from approximately 90% to about 70%. Moreover, the average criminal case now takes about three times longer to terminate than it did ten years ago, whether the termination is by trial or by a plea of guilty. Supreme Court decisions and the amended Rules of Criminal Procedure now require extended interrogation of the defendant before a guilty plea can be accepted, and when a not guilty plea is entered, lengthy preliminary hearings on the admissibility of confessions, the legality of searches and seizures, and the sufficiency of identification procedures, as well as discovery motions.
(b) In the civil category, also, the bare figures tell only part of the story. Over the last ten years there has been a dramatic change in the kinds of cases being filed in the federal courts. Hardly a week passes that some new and complex action is not brought. Civil rights cases, voting cases, welfare cases, environmental cases, securities cases, consumer class actions have become commonplace. In the last several years, for example, I have been asked to review the record of more than 100 state criminal convictions; to direct a complete revision of the rules and regulations of the Maine State Prison relating to inmate mail privileges, press relations, conditions of confinement and disciplinary procedures; to determine whether conditions at our State mental institutions meet minimally humane standards; to rule on the validity of state and local health and welfare regulations relating to categorical aid, general assistance and Medicare-Medicaid programs; to intervene in the operations of the University of Maine and local public school systems; to order the paper companies and other industries to clean up our rivers and coastal waters; and to cope with a current challenge to the licensing procedures in connection with the recent establishment of the 200 mile fisheries zone. Also, presently pending before me are several complex securities law, contract and patent cases, each of which will require an extended trial, and the so-called "Indian cases," which could tie up the Court's docket for years.
(3) Until about 1970, I was able each year to keep my criminal cases current and to close more civil cases than were filed. My pending civil caseload remained at a relatively constant 100 to 120 cases. As shown on the attached Statistical Profile, by 1971 my pending caseload had increased to 237 and as of the end of 1976, it was 334. As of April 30, 1977, it has risen to 400. A significant factor in this increase has been the recently enacted Speedy Trial Act, which, under the Plan adopted by this Court, requires that every criminal defendant be tried within 60 days after arraignment. The result has been that because of the priority which must be given to criminal actions the civil docket remains essentially dormant. With the additional time required for criminal dispositions and the increased complexity of civil cases, it has simply been impossible during the last several years to close out as many cases as have been filed.
(4) As you are aware, Maine is one of only three states with a single federal district judge, the other two states being New Hampshire (which will receive a second judge under the Omnibus Judgeship Bill) and Wyoming. This is also one of a relatively few single-judge districts in the country. The single district judge must serve two courts — one in Portland and one in Bangor — and a population of one million people spread over a geographical area greater than the combined area of the states of Vermont, New Hampshire and Massachusetts. For 20 years I have been apprehensive of the impact upon my calendar of a truly protracted case. For the first time, this winter I was faced with such a reality: the separate trials of three defendants who were indicted as a result of last summer's northern New England bombings. These required 41 days of actual trial time plus at least an equal number of days required for the hearing and disposition of a vast number of pre- and post-trial motions. The time required by these cases, together with some three weeks of time lost by reason of my hospitalization in December (for minor surgery), made it impossible to make any substantial inroad upon the pending civil calendar. I am thoroughly persuaded that the flexibility of a multi-judge court is necessary to meet such emergencies.
(5) Finally, I have become convinced that no state should be limited to a single district judge. The reasons are many. As already noted, a protracted case, or illness of the judge for any extended period, disrupts and delays the court docket. Attendance at meetings of Judicial Conference committees, assignments outside of the district and vacations (limited though they have been) mean that there is no judge available within the state during the absence of the resident judge. Recusals, and frequently retrials, require the designation of another judge from outside the district. And equally important, it has seemed to me unfair that the lawyers are required always to appear before the same federal judge. Undoubtedly, there are some lawyers in this state who feel, rightly or wrongly, that I have not looked kindly upon their efforts, or who have the impression, again rightly or wrongly, that my approach toward a particular type of litigation reflects a particular bias. Assuredly, the bar should have at least a 50 percent chance of appearing before a judge other than Judge Gignoux.
I am well aware that the problems which I have outlined, other than those arising from a single-judge district, are not unique to the District of Maine. I sincerely feel, however, that the need for an additional judge is pressing.
There is a second, but related, matter which I also submit for your consideration. Since the memory of man runneth not, Maine has constituted one judicial district comprising two divisions. See 28 U.S.C. f 99. The Southern Division includes the nine southern counties; court for the Southern Division is held at Portland. The Northern Division includes the seven northern counties; court for the Northern Division is held at Bangor. Approximately two-thirds of the civil and criminal cases are filed in the Southern Division, about one-third in the Northern Division.
We have presently a single courtroom and set of chambers with limited space in the 70 year old federal building at Portland and a splendid new courtroom and ample set of chambers at Bangor. Since Portland is my official station, and as a result there is no district judge resident at Bangor, I assume that the second judge should be based at Bangor. If so, it would be highly desirable to equalize the caseload between Bangor and Portland. The present rigid divisional structure makes this difficult, and I suggest that flexibility could be obtained if 28 U.S.C. § 99 were amended to provide simply that Maine shall constitute one judicial district, court to be held at Portland and Bangor. 28 U.S.C. If 109 and 126 so provide with respect to New Hampshire and Vermont. My research indicates that divisions are anachronisms. If an additional judge is authorized, I would hope that desirable flexibility might be obtained by elimination of the present divisional structure.
I am taking the liberty of forwarding copies of this letter to Senator Muskie, and also to Congressman Cohen in his capacity as a member of the House Judiciary Committee. As you are undoubtedly aware, an additional judgeship for Maine was included in the Omnibus Judgeship Bill which was reported favorably by the House Judiciary Committee last fall.
If there is any further information you desire, please let me know. I appreciate your efforts in our behalf.
Best regards.
Sincerely yours,
EDWARD T. GlGNOUX,
U.S. District Judge.