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                                                       Calendar No. 399
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-200
_______________________________________________________________________

 
 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA

                               __________

                              R E P O R T

                                 of the


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1561

 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA




               November 18, 2003.--Ordered to be printed

                                ______

                    U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
 TED STEVENS, Alaska                 JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas

           Michael D. Bopp, Staff Director and Chief Counsel
                    Johanna L. Hardy, Senior Counsel
 Theresa Prych, Professional Staff, Oversight of Government Management,
    the Federal Workforce and the District of Columbia Subcommittee
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                 Cynthia Gooen Lesser, Minority Counsel
  Marianne Clifford Upton, Minority Staff Director and Chief Counsel, 
                              Oversight of
   Government Management, the Federal Workforce and the District of 
                         Columbia Subcommittee
                      Amy B. Newhouse, Chief Clerk


                                                       Calendar No. 399
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-200
======================================================================


 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA

                                _______
                                

                November 18, 2003.--Ordered to be printed

                                _______
                                

Ms. Collins, from the Committee on Governmental Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1561]

    The Committee on Governmental Affairs, to whom was referred 
the bill (S. 1561) to preserve existing judgeships on the 
Superior Court of the District of Columbia, having considered 
the same reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

  I. Purpose and Summary...........................................   1
 II. Background....................................................   1
III. Legislative History...........................................   4
 IV. Section-by-Section Analysis...................................   5
  V. Estimated Cost of Legislation.................................   5
 VI. Evaluation of Regulatory Impact...............................   5
VII. Changes in Existing Law.......................................   5

                         I. Purpose and Summary

    The purpose of S. 1561 is to preserve existing judgeships 
on the Superior Court of the District of Columbia.

                             II. Background


                DISTRICT OF COLUMBIA LOCAL COURT SYSTEM

    The local District of Columbia Courts consist of the 
Superior Court of the District of Columbia and the District of 
Columbia Court of Appeals. The District of Columbia Courts 
constitute the Judicial Branch of the District of Columbia and 
they are separate and distinct from the legislative and 
executive branches of the District of Columbia.\1\ The District 
of Columbia court system is overseen by Congress and funded by 
the federal government.\2\
---------------------------------------------------------------------------
    \1\ See D.C. Code section 1-204.31 (2003); 2002 Annual Report of 
the District of Columbia Courts, p. 11.
    \2\ For a history of the District of Columbia court system, see 
Senate Report No. 107-108, Appendix.
---------------------------------------------------------------------------
    Judges on both the District of Columbia Court of Appeals 
and the Superior Court are selected through a process that 
includes the involvement of both local and federal entities. 
When a vacancy occurs on the Court, notice is sent to the 
District of Columbia Judicial Nominations Commission, a 
District of Columbia agency composed of seven members.\3\ The 
Judicial Nominations Commission solicits applicants for the 
vacancy, conducts an investigation and review of each applicant 
and selects three possible candidates to fill the vacancy. The 
names of those three candidates are sent to the President, who 
then selects one of them to nominate to fill the vacancy on the 
Court. Once the nomination is made, it is sent to the Senate 
for confirmation.\4\
---------------------------------------------------------------------------
    \3\ See D.C. Code section 1-204.34 (2003) (One member is appointed 
by the President, two members are appointed by the Board of Governors 
of the unified District of Columbia Bar, two members are appointed by 
the Mayor, one member is appointed by the D.C. Council, one member is 
appointed by the chief judge of the U.S. District Court for the 
District of Columbia.)
    \4\ D.C. Code section 1-204.33 (2003).
---------------------------------------------------------------------------

               SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    The Superior Court of the District of Columbia is the local 
trial court of general jurisdiction in the District of 
Columbia.\5\ It consists of six divisions including civil, 
criminal, probate, social services, and the Family Court. The 
last major reform of the District of Columbia Courts occurred 
in 2002. On January 8, 2002, President Bush signed into law the 
District of Columbia Family Court Act of 2001.\6\ The purpose 
of that Act was to restructure the then-family division of the 
Superior Court into a new Family Court. The Act was intended to 
promote the efficiency and consistency in the assignment of 
judges to the Family Court, improve the handling of cases 
involving families and neglected children, and help recruit and 
retain experienced judges to serve in the Family Court.\7\
---------------------------------------------------------------------------
    \5\ D.C. Code section 1-204.31 (2003).
    \6\ Public Law No. 107-114.
    \7\ See Senate Report No. 107-108.
---------------------------------------------------------------------------
    Section 11-903 of the District of Columbia Code establishes 
an overall limit on the number of judges that may be seated on 
the Superior Court. The current limit is 58 in addition to a 
chief judge. Section 3(a) of the Family Court Act, among other 
things, allows the limit to be exceeded to appoint additional 
Family judges if the number of judges in the Family Court is 
less than 15 and if certain other conditions are met.\8\ 
Section 3(b) of the Act required the Court to complete a 
transition plan and submit it to Congress within 90 days of 
enactment. Section 3(c) of the Act required that the transition 
plan include an analysis of the number of judges then sitting 
in the Family Court. In addition, section 3(c) required that, 
should the number of judges in the Family Court be less than 
15, then a corresponding number of vacancies would be created 
on the Court.
---------------------------------------------------------------------------
    \8\ These other requirements include: (1) there are no other judges 
already on the Court who are willing to volunteer for a transfer into 
the Family Court from another division, (2) the chief judge obtains 
permission from the Joint Committee on Judicial Administration within 
the Court, and (3) the chief judge reports to Congress on the need to 
exceed the cap.
---------------------------------------------------------------------------
    On April 5, 2002, the chief judge submitted to Congress the 
required transition plan. The plan determined that the number 
of judges qualified and willing to serve in the Family Court 
was 12 and, therefore, pursuant to the Family Court Act, three 
new vacancies were created on the Family Court, notwithstanding 
the overall limit to the number of judges on the Superior Court 
in section 11-903 of the District of Columbia Code.\9\ As a 
result, the nomination process was triggered and on January 21, 
2003 the President nominated Judith Nan Macaluso, Jerry Stewart 
Byrd, and Joseph Michael Ryan III to fill the three newly 
created Family Court seats. Those nominations were referred to 
the Senate Governmental Affairs Committee, as the committee of 
jurisdiction over the District of Columbia Courts.
---------------------------------------------------------------------------
    \9\ District of Columbia Family Court Transition Plan, April 5, 
2002, p. 30.
---------------------------------------------------------------------------

                  THE PROBLEM AND NEED FOR LEGISLATION

    Prior to the nominations of the three Family Court 
nominees, the Committee had also received the nomination of 
Fern Flanagan Saddler. As with most DC Court nominations, she 
was nominated to fill a vacancy created by a retired judge, 
Judge Patricia Wynn, and was not designated for a particular 
division. Later in the year, the Committee received the 
nominations of Brian F. Holeman and Craig S. Iscoe to be 
Superior Court judges to fill vacancies created by retired 
judges Mary Ellen Abrecht and Frederick D. Dorsey, 
respectively. On June 26, the Committee favorably reported the 
nominations of Fern Saddler and Judith Nan Macaluso to the full 
Senate and on June 27, both were confirmed.
    Subsequently, the Committee learned that with the 
confirmation of Judges Macaluso and Saddler, the Court only had 
two open seats due to the overall limit on the number of 
judges; however, there were four nominations still pending in 
the Committee. If all four of those nominations had involved 
judges not specifically designated to serve on the Family 
Court, the limit on the number of judges in section 11-903 
would have permitted only two of the four nominated individuals 
to serve on the Court, even if the Senate confirmed all four. 
While the Family Court Act resulted in creating three new seats 
on the Court, that Act failed to account for the new seats in 
the overall limit outlined in section 11-903. In addition, 
while the four nominations were still pending in Committee, on 
September 25, the Committee received the additional nomination 
of Gregory E. Jackson to fill the seat of retired judge Mildred 
M. Edwards.
    In response to this problem, Chairman Collins, along with 
Senators Voinovich and Durbin, Chairman and Ranking Member of 
the Subcommittee on Oversight of Government Management, the 
Federal Workforce, and the District of Columbia, introduced S. 
1561 to amend section 11-903 to reflect the addition of the 
three newly created seats on the Court pursuant to the Family 
Court Act. In addition, the Committee determined that it would 
move forward with the nominations of Joseph Michael Ryan III, 
Jerry Stewart Byrd, Brian F. Holeman, and Craig S. Iscoe. The 
Family Court Act provides an exception to section 11-903 to 
allow Family Court judges to be seated notwithstanding the 
limit. Therefore, the Committee determined that if Brian F. 
Holeman and Craig S. Iscoe were confirmed prior to the 
confirmations of Joseph Michael Ryan III and Jerry Stewart 
Byrd, the Family Court nominees, all four could be seated as 
judges, notwithstanding the fact that there were only two 
vacancies on the Court. Once the Holeman and Iscoe nominations 
were confirmed, there were no more seats remaining on the 
Court; however, because of the exception in the Family Court 
Act, the Court could exceed the section 11-903 limit to seat 
the two Family Court judges.
    On October 22, 2003, the Committee favorably reported the 
four nominations to the full Senate and on October 24, the 
Senate confirmed first the nominations of Brian F. Holeman and 
Craig S. Iscoe and then, on the same day, confirmed the 
nominations of Joseph Michael Ryan III and Jerry Stewart Byrd. 
However, Gregory E. Jackson, the most recent nominee received 
by the Committee, will not be able to be seated as judge even 
if he is confirmed.
    In addition, notwithstanding the confirmation of Brian F. 
Holeman and Craig S. Iscoe, should section 11-903 not be 
amended, the result may be a permanent decrease in the number 
of judges serving in the non-Family Court divisions of the 
Superior Court, including civil and criminal, as other judges 
decide to retire. In 2002, the civil division had nearly 98,000 
cases available for disposition and the criminal division had 
50,000, compared to 38,000 in the Family Court.\10\ Based upon 
the caseload statistics in the Court's 2002 Annual Report, the 
loss of three seats in the other divisions of the Superior 
Court would result in an average increase of the caseload by 
nearly 7% per judge. This is particularly troubling because the 
District of Columbia Superior Court's caseload tends to be 
among the highest in the Nation. For example, in the period 
from 1999 through 2001, D.C. had nearly 6,700 felony case 
filings per 100,000 population, the highest in the country.\11\ 
In 2001, the District had the highest number of civil filings 
per 100,000 of the population\12\ and only five states exceeded 
the District in the number of filings per judge.\13\
---------------------------------------------------------------------------
    \10\ 2002 Annual Report of the District of Columbia Courts.
    \11\ Examining the Work of State Courts, 2002: A National 
Perspective from the Court Statistics Project, p. 65.
    \12\ Examining the Work of State Courts at 18.
    \13\ Examining the Work of State Courts at 12.
---------------------------------------------------------------------------
    The loss of three seats in the non-Family Court divisions 
of the Superior Court could have a detrimental effect on the 
administration of justice in the District by adding to the 
already high caseload level of the judges. S. 1561 would 
address that concern by increasing the limit on the number of 
judges from 59 to 62.

                        III. Legislative History

    S. 1561 was introduced on August 1, 2003 by Senators 
Collins, Voinovich, and Durbin and was referred to the 
Committee on Governmental Affairs and then referred to the 
Subcommittee on Government Management, the Workforce, and the 
District of Columbia. The bill was polled out of subcommittee 
on October 15, 2003. On October 22, 2003, the Committee 
considered S. 1561 and ordered the bill reported by voice vote.

                    IV. Section-by-Section Analysis

    Section 1 amends section 11-903 of the District of Columbia 
Code to increase the limit on the number of judges on the 
Superior Court of the District of Columbia by three.

                    V. Estimated Cost of Legislation


S. 1561--A bill to preserve existing judgeships on the Superior Court 
        of the District of Columbia

    S. 1561 would amend the District of Columbia Code to 
increase the number of associate judges on the Superior Court 
of the District of Columbia from 58 to 61. Under current law, 
the Superior Court is subject to a cap of 58 judgeships. Based 
on information from the Superior Court, CBO estimates that 
increasing the cap on judgeships to 61 would cost about $1 
million a year for salaries and benefits of additional judges 
and support staff, subject to appropriation of the necessary 
amounts. Enacting the bill would not affect direct spending or 
revenues.
    S. 1561 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                  VI. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. CBO states that 
there are no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and no costs on 
state, local, or tribal governments. The legislation contains 
no other regulatory impact.

                      VII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic and existing law, in which no 
change is proposed, is shown in roman):

                       DISTRICT OF COLUMBIA CODE

         TITLE 11, ORGANIZATION AND JURISDICTION OF THE COURTS

         CHAPTER 9. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA


Sec. 11-903. Composition

    The Superior Court of the District of Columbia shall 
consist of a chief judge and [fifty-eight] 61 associate judges.