With the elections over, the federal courts are warning Congress and the public that major spending cuts triggered by the impending “fiscal cliff” would imperil the justice system by forcing layoffs of one court staffer in three, decimating court security and ending juror pay.

Unless Congress and the White House resolve the stalemate over the budget, 8.2 percent across-the-board cuts to federal programs would strip $555 million from the courts. That would be “devastating,” according to a October 2 analysis by the Administrative Office of the United States Courts.

In the Northern District of Illinois, for example, Chief Judge James Holderman has spread word that he would have no choice but to close courthouses in Chicago and Rockford for 39 days during the year and reduce supervision of convicted felons, putting the community at risk.

“At this point, we are considering closing the district court one business day each week, probably each Wednesday, starting the first week in January 2013, and running through the last week of September 2013,” Holderman wrote to the Illinois State Bar Association in September. “During these weekly shutdowns, no civil case and no criminal case court proceedings will take place.”

The Judicial Conference of the United States and its committees were working through their budgets to prepare for cuts, although the federal courts already have been taking cost-cutting measures that included the elimination of 1,100 positions, spokesman Charles Hall said. As for the Administrative Office, itself, a $13 million reduction in funding — representing a 25 percent decrease in operating expenses — would require an estimated four-week furlough of all employees or layoffs, the office told Congress earlier this year.

Aside from that, the federal courts have not released a detailed plan for dealing with the effects of the Budget Control Act of 2011, which was signed into law in August 2011 and which mandates the sequestration. Effective January 1, the government would be forced to begin enforcing $7 billion in tax increases and spending cuts over the next decade — although, presumably, any subsequent deal could be applied retroactively.


Earlier this year, Julia Gibbons, chairwoman of the Judicial Conference of the United States’ budget committee, told the House Appropriations Committee that the judiciary has constitutional obligations that do not give it the flexibility that executive branch programs do to eliminate or cut programs to achieve budget savings.

Not everyone in Congress agrees. On November 8, Senator Chuck Grassley (R-Iowa) wrote a letter to Judge Thomas Hogan, director of the Administrative Office, asking for a more comprehensive plan that incorporates other operational expenses, such as travel and conferences. Grassley, ranking minority member of the Senate Judiciary Committee, criticized the courts earlier this year for spending more than $1 million for a U.S. Court of Appeals for the Ninth Circuit conference in Hawaii.

Grassley said he would prefer to see cuts to these gatherings before layoffs and court closings. “The entire federal government is going to be absorbing some difficult cost saving measures. But, it’s disappointing that the federal judiciary outlined draconian measures in a vague email instead of providing a comprehensive plan,” Grassley said. “It seems to present a Chicken Little mentality without much effort and forethought into avoiding major disruptions.”

Senator Patrick Leahy (D-Vt.), chairman of the committee, referred questions to a committee aide. But the aide, who spoke on condition of anonymity, said Leahy wants to avoid the cuts altogether.

“Senator Leahy is concerned about the negative impact sequestration would have on our courts and the ability of Americans to seek justice,” the aide said. “He is hopeful Congress can find a bipartisan solution to this issue during the lame duck session.”


The fiscal cliff was just one aspect of the fallout from the election. Among other legal developments stemming from November 6:

• Three Florida Supreme Court justices targeted for defeat by the Republican Party held onto their posts. Justices Fred Lewis, Barbara Pariente and Peggy Quince each collected more than two-thirds of the vote in their merit-retention elections. The state GOP’s executive committee had voted to oppose all three. It marked the first time a Florida political party had taken a position in a merit-retention race.

Republicans had sharply disagreed with several of the court’s decisions, including its invalidation of a 2010 proposed constitutional amendment intended to soften the effects of the Patient Protection and Affordable Care Act. Voters also rejected a proposed amendment to the Florida Constitution that would have given the Florida Legislature more control over the court.

“Floridians care deeply about ensuring that we have a fair and impartial judiciary untainted by partisan politics,” Quince said after the votes were in.

In Iowa, voters retained Supreme Court Justice David Wiggins. He was the fourth justice up for retention since 2009, when the seven-member court unanimously legalized same-sex marriage. In 2010, three justices were voted out, marking the first time since 1962 that an Iowa justice was not retained.

• In Alabama, the state’s former chief justice was voted back into office. Roy Moore, a Republican, was ousted from the bench by his colleagues in 2003 after he refused to remove a 5,200-pound monument to the Ten Commandments from the Heflin-Torbert Judicial Building in Montgomery, Ala. Moore beat Democratic contender Bob Vance. “I have no doubt this is a vindication,” he told supporters on November 6, The Associated Press reported.

• Michigan Republicans retained their 4-3 hold on the state Supreme Court. Justices Brian Zahra and Stephen Markman, both Republicans, kept their seats, and Democrat Bridget McCormack, a professor at the University of Michigan Law School, won a seat on the board in officially nonpartisan voting. In a four-minute ad, characters from The West Wing had singled out McCormack for praise while urging voters not to overlook nonpartisan seats including state judgeships. Her sister, Mary McCormack, appeared on the show as a national security adviser for three seasons.

• In North Carolina, incumbent state Supreme Court Justice Paul Newby beat opponent Sam “Jimmy” Ervin IV. The nonpartisan race was closely watched because of super-PAC support for the candidates. National and state Republican organizations, business interests and other conservative groups lined up behind Newby with more than $2.5 million, according to The Charlotte Observer.

• Texan Sharon Keller retained her seat on the Court of Criminal Appeals, the state’s court of last resort on criminal cases. Keller is perhaps best known for refusing to allow an after-hours appeal for a Texas death-row inmate before his execution. “My personal challenge was not just to win, but to win decisively,” Keller, a Republican, said via email. “Thanks to the voters, I succeeded in doing that. Over a million more people voted for me than for my Democratic opponent.”

Regarding the Texas Supreme Court, which holds final jurisdiction over state civil matters, Republican Nathan Hecht won election for the fifth time. Republican candidate John Devine and Republican incumbent Justice Don Willett, both of whom faced no Democratic opposition, also won seats on the court.

• Also on Election Day, voters in Colorado and Washington set the stage for court tests with the U.S. Department of Justice by approving initiatives to legalize and tax the sale of marijuana through special stores. A spokeswoman for the department said that the enforcement of the Controlled Substances Act would remain unchanged and that officials “are reviewing the ballot initiatives and have no additional comment at this time.” Colorado Governor John Hickenlooper warned: “Don’t break out the Cheetos or goldfish too quickly.”

Similarly, the success of same-sex ballot initiatives in Maine, Maryland and Washington will almost certainly be incorporated by attorneys representing groups who support same-sex marriage as evidence of a growing consensus in the country of support for the issue. The U.S. Supreme Court will take its first look at petitions arguing for and against the constitutionality of same-sex marriage during a November 20 conference, including petitions involving the federal Defense of Marriage Act and the Proposition 8 ban of same-sex marriage in California.

Todd Ruger can be contacted at truger@alm.com. Also contributing to this report were staff reporter Leigh Jones; Adolfo Pesquera of NLJ affiliate Daily Business Review; and John Council and Miriam Rozen of Texas Lawyer.