FOR PUBLICATION

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

IN APPROVAL OF THE JUDICIAL 

EMERGENCY DECLARED IN THE  ORDER

DISTRICT OF ARIZONA 

Filed March 2, 2011

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).

3279
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,

3280 IN RE APPROVAL OF THE 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

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3281
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

3282 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
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.

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3283
A. Current Caseload Status of the District of Arizona

1. Criminal Docket

In FY 2009, the District of Arizona ranked first in the Ninth

Circuit and third in the nation for criminal case filings. The

national average of criminal felony filings per judgeship was

97 during FY 2009. During this same period, each Arizona

district judge averaged 328 criminal felony filings, but in the

Tucson Division, this number was 652 filings per judge. The

picture becomes bleaker when one looks at the number of

criminal defendants, not just the number of cases. In Arizona,

there have been 6,922 criminal defendants (4,913 were in

Tucson) during Calendar Year 2010, a 33.9% increase over

the previous year. We incorporate by reference the numbers

for FY 2008 through FY 2010 for felony case filings, felony

defendant filings, felony case sentencings, and felony defendant sentencings as listed in Judge Roll’s November 24, 2010,

letter. See Tab A at pp. 3-4. 

Since Judge Roll’s criminal caseload has now been distributed among the three active district judges in Tucson, their

caseloads are even more staggering. As of January 31, 2011:

Judge Collins had 972 criminal cases, and 1,218 criminal

defendants; Judge Jorgenson had 1,005 criminal cases, and

1,222 criminal defendants; and Judge Bury had 963 criminal

cases, and 1,182 criminal defendants. If filings continue at the

same pace as the past 12 months, the active judges will

receive an average of 1,548 criminal defendants in Calendar

Year 2011.

The District of Arizona’s magistrate judges are overburdened as well. In FY 2009, its magistrate judges heard 20,952

petty offense cases — second highest in the nation, the first

being the Southern District of Texas. Most of the petty

offense cases were heard in Tucson (over 17,000). In addition,

magistrate judges in Arizona heard 1,016 Class A misdemea3284 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
nor cases — second highest in the nation, out of a total of

8,700 such cases nationwide. 

2. Civil Docket

The District of Arizona is also experiencing inordinate

pressure with its civil caseload. Three percent of civil cases

filed in Phoenix, and 5.6% of the Tucson cases, have been

pending over 3 years as of December 31, 2010, a total of

3.4% for the district. Of the motions filed in this district,

10.6% were pending over 6 months as of January 18, 2011.

Because of the overwhelming caseload, in FY 2009, Arizona

ranked an unenviable 54th in the nation and 6th in the circuit

for time from filing to trial in civil cases, and 35th in the

nation and 7th in the circuit in time to disposition. 

These percentages demonstrate the pressure of the civil

caseload and motion docket at all times. Given that these

numbers were generated when the District of Arizona had no

vacancies, and now there are three vacancies with no nominees, the backlog will continue to grow. We note that Circuit

Judge Tashima graciously volunteered to take on Judge Roll’s

civil docket, which will help the District of Arizona’s overburdened district judges. 

3. Capital Docket

The District of Arizona has a large number of inmates on

death row. Currently, there are 135 individuals on death row,

virtually all of whom will file petitions for a writ of habeas

corpus in the federal district court. These cases consume an

enormous amount of judicial and staff resources. Within the

Ninth Circuit, only California has a higher number of death

row inmates. The District of Arizona has also had a large

number of federal death penalty cases prosecuted; 13 cases

involving 32 defendants eligible for the death penalty have

been filed since 1999.

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3285
4. Overall Caseload

In FY 2009, Arizona carried a weighted caseload of 603,

and an unweighted caseload of 860 cases per active district

judge (which was third highest in the nation). In FY 2010,

Arizona’s weighted caseload was 653, ranking ninth highest

in the nation (the unweighted caseload data is not yet available). The higher ranking districts include districts in other

border states or districts with multi-district litigations

(MDLs).

B. Border Patrol Program and USAO Resources

The District of Arizona’s criminal caseload has grown

because the Department of Homeland Security has increased

border enforcement, and the United States Attorney’s Office

has increased its efforts to prosecute these cases along the

United States-Mexico border. See Tab D: Administrative

Office of the United States Courts: Report on the Impact on

the Judiciary of Law Enforcement Activities along the Southwest Border, prepared for the U.S. House of Representatives

and Senate Committees on Appropriations (July 2008) (“AO

Report”). Operation Streamline, a program that requires criminal prosecution and imprisonment of all individuals unlawfully crossing the border, eliminated the discretion

traditionally reserved by United States Attorney’s offices to

limit prosecution to immigrants with criminal records or previous illegal border-crossings. Id. at pp. 1-7. This program has

led to a burgeoning number of federal criminal prosecutions

in all districts bordering Mexico, but the increase has been

particularly pronounced in the District of Arizona. 

In the few years since Operation Streamline commenced,

the United States Attorney’s Office in Tucson has doubled its

number of prosecutors and empaneled a third grand jury in

January 2011. The United States Attorney’s Office for the

District of Arizona reports that it added 42 AUSAs since

2006, and filled eight other AUSA vacant positions. See Tab

3286 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
E: United States Attorney District of Arizona “Border Security Fact Sheet June 2010.” There are currently 170 AUSAs in

the District of Arizona, a 62% increase over the past 10 years.

See http://www.justice.gov/usao/az/office_overview.html. 

There has also been a dramatic increase in the number of

U.S. Border Patrol and other federal law enforcement agents

in Arizona. Id. In FY 2009, the Border Patrol apprehended

approximately 241,000 people in the Tucson Sector and

seized well over 1 million pounds of marijuana. Due to this

dramatic increase in resources, the USAO was able to investigate and prosecute 3,200 felony and 22,000 misdemeanor illegal immigration cases in FY 2009, in addition to prosecuting

other border-related crimes involving drug and firearms

smuggling. Id. at p. 1. 

All Operation Streamline cases resulting from Border

Patrol apprehensions in the Tucson Sector (comprised of 262

miles of international border, extending from the Arizona border with New Mexico to the Yuma County line) are heard at

the Evo A. DeConcini Federal Courthouse in Tucson. The

2008 AO Report deemed this area the “the busiest sector

along the entire border.” See Tab D: AO Report at p. 6. Presently, Tucson division magistrate judges hear 70 Operation

Streamline cases per workday. During Calendar Year 2010,

the Tucson Division disposed of 20,066 immigration petty

offense cases, of which 16,981 were part of Operation

Streamline. 

In fact, the Department of Justice asked for a funding

increase of $231.6 million for FY 2010 to support its immigration enforcement along the southwest border, including

Operation Streamline. The DOJ request includes $8.1 million

to fund new USAO positions in response to the

rising caseload along the U.S.-Mexico border. See U.S.

Department of Justice, Fiscal Year 2010 Budget Request

(2009), available at http://www.usdoj.gov/jmd/

2010factsheets/pdf/safeguardingour-swb.pdf. According to

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3287
the 2008 AO Report, an additional $100 million was appropriated in FY 2008 to the Department of Justice, including $7

million to hire additional AUSAs and support staff, and in FY

2009, the Department of Justice requested $100 million in

new funding for the Administration’s Southwest Border

Enforcement Initiative, including $8.4 million to hire another

50 AUSAs along the border. See Tab D, AO Report at p. 8.

There has been no correlating increase in Article III judgeships, and as noted above, there is a further significant

decrease in judicial resources with the three current vacancies.

III. Proposal for Alleviating Congestion

A. Visiting Judges

The Ninth Circuit maintains a robust and vigorous visiting

judge program that provides visiting judges to districts requiring assistance each year. In the past, the Circuit has successfully addressed the lack of judicial resources in districts

throughout the Ninth Circuit, including the Southern District

of California, the Central District of California, the District of

Montana, the District of Idaho, and the District of Arizona.

Most recently, the Circuit recruited more than 80 visiting

judges to assist the Eastern District of California, which the

individual judges assuming between 15 and several hundred

cases, resulting in nearly 900 case terminations to date.

The District of Arizona has been employing visiting judges

to the fullest extent possible. As of this writing, 36 judges

from within and outside the Ninth Circuit have been designated to assist the court in 2011, serving one-to-four-week

tours in the district. In addition, judges from Alaska and the

Eastern District of Washington have provided ongoing and

long-term assistance to the District of Arizona. With the assistance of the U.S. Judicial Conference Committee on Intercircuit Assignments, additional visiting judges will continue

to be recruited from all across the country for the foreseeable

3288 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
future or until the District receives the additional judicial

resources it so desperately needs. 

The Phoenix division is limited in the help it can provide

to the Tucson division because it handles a disproportionate

percentage of the district’s civil filings, in addition to approximately one-third of the district’s felony cases. 

The District of Arizona and the Judicial Council are jointly

developing a plan to use visiting judge resources in the most

effective manner as possible. However, as will be discussed

in more detail, the physical limitations of the courtroom space

in Tucson and the necessity of scheduling 30 trials each week

severely constrain the ability of the Circuit to provide sufficient visiting judge assistance that will address the criminal

docket in Tucson. The District has already adopted an effective case management system, so no further efficiencies can

be achieved through any change in court administrative procedure.

B. Courthouse Facilities

Visiting judges are not an adequate short-term fix, nor are

they a long-term solution to this problem. See Tab D, AO

Report at p. 10. The Evo A. DeConcini United States Courthouse in Tucson has only been able to accommodate one visiting judge at a time, and now can accommodate two with

Judge Roll’s courtroom available. The Special Proceedings

Courtroom is unavailable because it is completely utilized for

Operation Streamline proceedings. There are only two other

courtrooms not assigned to a judge, one of which is needed

each day for felony criminal duty (detention hearings in the

morning and initial appearances in the afternoon). Once per

week another district judge sized courtroom is needed for

arraignments. The magistrate judges typically use their

assigned courtrooms both mornings and afternoons each day

for felony change of plea and other proceedings. Thus, the

visiting judges can only be scheduled to courtrooms as they

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3289
become available each day. Any visiting judge presiding in a

civil trial will likely have to do so in courtrooms borrowed

from the bankruptcy court at the Walsh Courthouse down the

street.

On September 29, 2010, Judge Roll submitted a statement

to Congress concerning the space problems at the Evo A.

DeConcini district courthouse. See Tab F: Testimony re: Evo

A. DeConcini Courthouse in Tucson Division: Hearing before

the Subcommittee on Courts and Policy of the House Judiciary Committee, 111th Cong. (2010) (statement of Chief

Judge John Roll). In those comments, Judge Roll responded

to a GAO Report stating: “No one familiar with the actual situation in Tucson could reasonably conclude that the DeConcini Courthouse was overbuilt in 2000 or that the Courthouse

has any extra available space. In fact, there is a constant

search for tenants who will leave the Courthouse to free up

additional space.” Id. at p. 9. The GAO’s position that the

Tucson Division did not need more space had assumed courtroom sharing, which isn’t practical in busy border state

courts, and also didn’t take into account the frequent use of

visiting judges. As noted in the 2008 AO Report, the District

of Arizona had inadequate facilities for court operations, and

Tucson’s criminal case filings increased “well beyond the volume projected” when the courthouse was designed. See Tab

D: AO Report at pp. 11, 21-22 (noting “serious space limitations.”). 

Congresswoman Gabrielle Giffords continues to champion

the District of Arizona’s space crises. In a letter written February 7, 2011, Congresswoman Giffords’ Chief of Staff wrote

to the Chairmen of the Committee on Appropriations and the

Subcommittee on Financial Service and General Government

requesting that GSA work with the DeConcini courthouse tenants to lease auxiliary space. See Tab G: Letter from Pia Carusone, Congresswoman Giffords’ Chief of Staff, (misdated

February 7, 2010). Because the courthouse is out of space,

and the United States Attorney’s Office lease in the DeCon3290 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
cini Courthouse doesn’t expire until 2013, the judiciary would

have to spend an inordinate amount of money to relocate them

pursuant to 41 C.F.R. § 102-85.210.

C. Other Methods to Expedite Cases

While it awaits the judicial resources it needs, the District

of Arizona, with the help of this Judicial Council, will employ

whatever techniques, innovations, and other methods it can to

expedite cases. One such idea that the District of Arizona is

currently evaluating is an offer from the Ninth Circuit’s

Office of the Circuit Mediator for its team of mediators to

help with the caseload burden. 

The mediators would help with only civil cases, and only

those in which both parties are represented by counsel. Once

the district and the Circuit Mediation Office are able to consider and work through the logistics, mediators could travel to

Arizona to conduct mediations in cases that would normally

have been conducted by a magistrate judge, thereby freeing

up some time for the District of Arizona’s magistrate judges

to focus on their caseload. Further, if this option becomes

available, the district judges may suggest mediation to civil

parties in cases not traditionally referred to mediation.

D. Additional Resources Needed to Comply with the STA

The District of Arizona’s congestion may be alleviated in

the long term only if its vacancies are filled and new judgeships created. This district does not have the resources to keep

pace with the current prosecution of border-related cases. 

1. Judgeships and Filling Vacancies

The Committee on Judicial Resources of the Judicial Conference of the United States recently recommended that the

District of Arizona be authorized five additional judgeships

(four permanent and one temporary). See Tab H: JCUS

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3291
Report dated January 10, 2011 at pp. 5-6. The Committee also

recommended converting a current temporary position to permanent status. The Federal Judgeships Act was introduced in

the last Congress (S. 1653 and H.R. 3662) but no action was

taken on the proposed legislation. No judgeships bills have

been introduced yet in the 112th Congress. 

Arizona’s congressional delegation is well aware of the district’s crisis: Judge Roll kept the delegation apprised about

increased case filings and judgeship needs, and House Representatives Gabrielle Giffords and Ed Pastor recently wrote a

joint letter acknowledging the crisis and supporting the District of Arizona’s request for the suspension of Speedy Trial

Act time limits. See Tab I: Giffords and Pastor letter dated

December 21, 2010. Indeed, Judge Roll went to Representative Giffords’ “Congress on Your Corner” on January 8,

2011, to discuss this very topic. Judge Roll also advised, on

December 10, 2010, that Senators John McCain and Jon Kyl

also supported the district’s request for a judicial emergency.

The District of Arizona must await Congress to create the

recommended judgeships, fill vacancies, and provide other

resources. In fact, then Representative Abner Mikva, a sponsor of the Speedy Trial Act, recognized that Congress was

responsible to ensure that courts were adequately staffed if it

was to impose the Speedy Trial Act time limits. He acknowledged the need to allow for postponement of the Act’s

requirements if a court had inadequate resources. He wrote in

a prepared statement in 1971: 

Nevertheless, it may well be that even if all the

judges in a given circuit were putting in a full week’s

work on the bench, and even if the most modern,

efficient administrative techniques were employed,

we would still find that the available resources are

inadequate to achieve the goal of speedy and fair trials. 

3292 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
In this event, Section 3164 allows for a postponement of the speedy trial requirements of Section

3161. The (Judicial Conference) is required to submit legislation to Congress providing the needed

additional resources. This places the burden back

where it belongs — on the shoulders of Congress. It

will then be up to the representatives of the taxpayers of America to decide whether we are serious

enough about crime prevention to expend the money

and effort necessary to obtain it. In other words, the

buck will stop here. 

See TAB J at p. 261.

The 2008 AO Report suggested to the Senate and House

Appropriations Committees that additional judgeships were

needed, and that there had been a lag in the appropriations

process, “in that prosecution resources have been provided to

the Executive Branch without considering at the same time

the impact that these additional resources will have on the

Judiciary.” See Tab D, AO Report at p. 17. 

Swiftly filling the three current vacancies in the District of

Arizona will help, but please recall that only one of these

vacancies existed when Judge Roll reported the crisis in

November 2010. Thus, consideration should be given to proposing legislation to create the additional judgeships that the

District of Arizona so desperately needs. 

2. Other Needed Resources

The Clerk’s Office staffing is based in large part on the

number of judgeships authorized for a district court. The number of visiting judges assigned to the court will also increase

the need for additional Clerk’s Office staff, as will the enormous number of border-related cases, and reassignments due

to Judge Roll’s death. We are working with the Clerk of Court

in the District of Arizona to identify its requirements, but note

at this time the following units are particularly strained:

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3293
(a) Docketing and Calendar Clerks: Tucson’s calendar

clerk is working overtime to keep up with processing all the

motions to continue criminal sentencings and trials. In January, she processed 1,166 continuances (32% more than January 2010). The criminal sentencings, disposition hearings, and

trials set for Judge Roll are being rescheduled before visiting

judges. The district is currently moving sentencings from the

other three active judges to visiting judges. There are over

1,100 proceedings that need to be rescheduled, with noticing

given to U.S. Marshals, Probation, and the attorneys. Further,

during 2010 alone, the clerk’s office processed over 2 million

dollars in CJA vouchers related to Operation Streamline.

(b) Interpreters: The seven staff interpreters are in court

every day, most of the certified contract interpreters in Tucson

are called in most days, and TIP (Telephone Interpreting Program) proceedings take place each day. Any increase in criminal court activity requiring interpreters will strain the system

and court could be delayed until interpreters become available. An administrative clerk was recently hired to log letters/documents submitted for translation and assist with the

headsets during Operation Streamline proceedings which

reduced the staff interpreters’ burden. 

(c) Probation Office: This office’s staffing is based primarily on the number of pre- and post-conviction sentencing

reports and the number of post-supervision cases supervised

in the community. The crushing criminal workload is taking

a severe toll on staff. Although the Administrative Office has

provided the Probation Office with supplementary funds,

funding remains insufficient to hire enough probation officers

to support the work of judicial officers. There are 262 onboard employees, another 16 officers will be hired. The

expected staff size of 278 will still be 21 positions fewer than

what is needed. The increase in cases also presents a need to

increase video teleconferencing capacity with the detention

facility where defendants are held. 

3294 IN RE APPROVAL OF THE JUDICIAL EMERGENCY
(d) Pretrial Services: This office’s staffing is based primarily on case activations (new investigations) and defendants under supervision. Between fiscal years 2009 and 2010,

there was a 40% increase in case actions, growing from

13,145 to 18,424. This is primarily due to the increase in

Operation Streamline prosecutions. Additionally, there was a

22% increase in cases received for supervision during that

same time period, growing from 908 cases to 1,109. Workload continues to increase and it has been difficult to keep

pace with staffing. Although recent hires will help alleviate

some of the tremendous workload strain on staff, if workload

continues to increase and funding is reduced, this could compromise the quality of investigations and supervision being

provided by Pretrial Services. 

(e) U.S. Marshals Service: Additional resources will be

required to transport pre-trial detainees, and other matters

related to judicial and court security. 

(f) Magistrate Judges: The District will require either

new authorized Magistrate Judge positions or the recall of

Magistrate Judges, or likely both.

E. Conclusion

Although the District of Arizona and the Ninth Circuit

Judicial Council are exploring every available alternative to

alleviate the caseload congestion, the most cost-effective and

reasonable long-term solution is the swift enactment of legislation creating additional judgeships for the district, perhaps

as a stand-alone bill rather than as part of a larger judgeship

bill. In addition, it is hoped that the President and the Senate

expedite the nomination and confirmation process for the

three existing judicial vacancies in the district and any additional new judgeships created. Finally, budget cuts and/or furloughs should not be considered for the District of Arizona’s

support staff. 

IN RE APPROVAL OF THE JUDICIAL EMERGENCY 3295
Submitted by the Judicial Council

of the Ninth Circuit:

Alex Kozinski, Chief Circuit Judge 

Procter Hug, Jr., Circuit Judge

Sidney R. Thomas, Circuit Judge

Raymond C. Fisher, Circuit Judge

Ronald M. Gould, Circuit Judge

Johnnie B. Rawlinson, Circuit Judge

Audrey B. Collins, Chief District Judge

Roger L. Hunt, Chief District Judge

James Ware, Chief District Judge

Stephen M. McNamee, District Judge

Robert H. Whaley, District Judge

3296 IN RE APPROVAL OF THE JUDICIAL EMERGENCY