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[Senate Report 109-316]
[From the U.S. Government Publishing Office]

109th Congress                                                   Report
                                 SENATE                          
 2nd Session                                                     109-316
_______________________________________________________________________

                                     

                                                       Calendar No. 559

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

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2068

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

                 July 31, 2006.--Ordered to be printed

For Sale by the Superintendent of Documents, U.S. Government Printing Office
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        COMMITTEE ON HOMELAND SECURITY AND 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
TOM COBURN, Oklahoma                 THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island      MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah              FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico         MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia

           Michael D. Bopp, Staff Director and Chief Counsel
            Jennifer A. Hemingway, Professional Staff Member
             Michael L. Alexander, Minority Staff Director
                    Beth Grossman, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk

                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................1
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................5
  V. Estimated Cost of Legislation....................................5
 VI. Evaluation of Regulatory Impact..................................6
VII. Changes in Existing Law..........................................6

                                                       Calendar No. 559
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-316

======================================================================

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

                                _______
                                

                 July 31, 2006.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2068]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2068) 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.

                         I. Purpose and Summary

    The purpose of S. 2068 is to preserve existing judgeships 
within the Superior Court of the District of Columbia 
inadvertently impacted by the 107th Congress under the Family 
Court Act of 2001.

                             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 over-seen by Congress and funded by 
the federal government.\2\
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    \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.
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    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 the names to fill the vacancy on the Court. 
Once the nomination is made, it is sent to the Senate for 
confirmation.\4\
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    \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 Major, 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 1-203.33 (2003).
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               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\
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    \5\ D.C. Code section 1-204.31 (2003).
    \6\ Public Law No. 107-114.
    \7\ See Senate Report No. 107-108.
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    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 
on 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.
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    \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 with the 
Court, and (3) the chief judge reports to Congress on the need to 
exceed the cap.
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    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 on 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 then Senate Governmental Affairs Committee, as the 
committee of jurisdiction over the District of Columbia Courts.
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    \9\ District of Columbia Family Court Transition Plan, April 5, 
2002, p. 30.
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                  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, 2003, the Committee favorably 
reported the nominations of Fern Saddler and Judith Nan 
Macaluso to the full Senate and on June 27, 2003, 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, 2003, 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 in the 108th Congress to amend section 11-903 (an 
identical bill was subsequently reintroduced as S. 2068 in the 
109th Congress). 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, Ryan and Byrd.
    On October 22, 2003, the Committee favorably reported the 
four nominations to the full Senate and on October 24, 2003, 
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 was not able to be confirmed until 
November 21, 2004 when an additional vacancy was created due to 
the retirement of an additional Superior Court judge.
    On February 14, 2005, the Committee received the nomination 
of Jennifer M. Anderson to be Associate Judge, D.C. Superior 
Court. On November 10, 2005, the Committee received the 
nomination of Carol A. Dalton to serve on the Superior Court; 
and on January 26, 2006, the Committee received the nomination 
of Pamela S. Gray, also to serve on the Superior Court. The 
Committee has been unable to process the nominations of Dalton 
and Gray since no vacancies exist on the Superior Court. On 
July 11, 2006, the Committee was able to schedule the 
confirmation for Anderson due to the nomination of Justice Anna 
Blackburne-Rigsby to be Associate Judge of the District of 
Columbia Court of Appeals.
    In addition, 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, when the Family Court Act of 2001 went into 
effect, the civil division of the Superior Court had nearly 
98,000 cases available for disposition, while the Family Court 
boasted only 38,000.\10\ Of this 98,000 from the civil 
division, only 88,123 were actually disposed, and just under 
14,000 were disposed from Family Court.\11\ Three years later, 
the situation is quite similar, even in the wake of 3 
additional judges being assigned to the Family Court division. 
In 2005, the civil division and Family Court division saw 
clearance rates of 97% and 87% respectively.\12\ And while 97% 
and 87% may seem impressive, given the large scale for which 
the courts operate on, a 97% clearance rate for the civil 
division has resulted in a case backlog of over 2,400. The 
subsequent pending case load of 87% for the Family Court has 
resulted in a backlog of over 1,600 cases. Overall, percentage 
dispositions for the Superior Court are falling, and the result 
is a continual increase in pending cases for each subsequent 
year. In 2003, the District of Columbia had over 5,900 felony 
case filings for 100,000 population, the third highest in the 
nation.\13\
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    \10\ 2002 Annual Report of the District of Columbia Courts.
    \11\ 2005 Annual Report of the District of Columbia Courts.
    \12\ 2005 Annual Report of the District of Columbia Courts.
    \13\ Examining the Work of State Courts, 2004, Criminal Statistics.
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    The detrimental effect on various Superior Court divisions 
is evident by the increase in pending case loads as well as the 
decrease in total cases disposed. S. 2068 would address both of 
these issues by increasing the number of associate judges from 
58 to 61, in an effort to dispose more cases and lessen pending 
case loads for Superior Court divisions.

                        III. Legislative History

    S. 1561 was introduced on August 1, 2003 by Senators 
Collins, Voinovich, and Durbin. The legislation was referred to 
the then Committee on Governmental Affairs, and subsequently 
referred to the Subcommittee on Government Management, the 
Workforce, and the District of Columbia. The bill was favorably 
polled by the subcommittee on October 15, 2003, and on October 
22, 2003, the Committee ordered the bill favorably reported by 
voice vote. On November 20, 2003, the bill passed the Senate 
unanimous consent, and was referred to the House Committee on 
Government Reform on November 21, 2003. No further action was 
taken on the legislation during the 108th Congress.
    The legislation was reintroduced by Senators Collins, 
Voinovich, and Akaka on November 18, 2005, and was referred to 
the Committee on Homeland Security and Governmental Affairs on 
the same date. On January 27, 2006, S. 2068 was referred to the 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia, which favorably polled 
the legislation on April 21, 2006. Senator Lieberman 
cosponsored the bill on June 13, 2006. On June 15, 2006, the 
Committee considered S. 2068 and ordered the bill reported 
favorably by voice vote without amendment. Members present were 
Senators Collins, Voinovich, Coleman, Coburn, Chafee, Bennett, 
Lieberman, Carper, Dayton, and Pryor.

                    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 from 58 to 61.

                  V. Estimated Cost of the Legislation

                                                     June 16, 2006.
Hon. Susan M. Collins,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2068, a bill to 
preserve existing judgeships on the Superior Court of the 
District of Columbia.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

S. 2068--A bill to preserve existing judgeships on the Superior Court 
        of the District of Columbia

    S. 2068 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. 2068 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandate 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.

                                  
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