Statement of Judge Jane Roth, Third Circuit Court of Appeals

For the past several years we have worked closely with the Congress and the General Services Administration (GSA) on the courthouse construction program. We appreciate the continued willingness of this Subcommittee, of the full Committee, and of your staff to work with us to make improvements. We look forward to working with you on the projects for FY 2001. In particular, we hope that you will authorize all projects that can be ready for design, site or construction contract award in FY 2001 at the levels originally submitted by GSA to the Office of Management and Budget (OMB).

President Clinton's FY 2001 budget request includes $488 million for seven new courthouse construction projects. This request for courthouse projects is the first since FY 1997. The judiciary appreciates the fact that the Administration has acknowledged the need to provide adequate, secure space for courts. The President's request does not, however, include all the projects which GSA proposed to OMB. We are concerned by the Administration's failure to include funds for all the projects which need site, design or construction funding in FY 2001. We are also concerned about actions taken by OMB to reduce the size of the projects. We are informed that the funding levels for these seven projects is based on an assumption that only two courtrooms will be provided for every three active district, senior, magistrate, and bankruptcy judges.

The Judicial Conference, at its March 14, 2000 meeting, considered the unilateral efforts of the Office of Management and Budget to impose a courtroom sharing policy on the judicial branch, and the Conference condemned these efforts as an unwarranted and inappropriate intrusion into the constitutionally mandated independence of the judiciary. By statute, the judicial councils of the circuits have the authority to determine the need for court accommodations. (See 28 USC 462 (b)). Once the need for accommodations is approved by the council, the Director of the Administrative Office of the United States Courts requests the GSA Administrator to provide them. The Administrator is directed by law to do so. Any action, taken by the Office of Management and Budget (OMB) to reduce the scope and size of the projects, as approved by the councils and GSA, would appear to violate the governing statutes. We ask that you take action to restore the levels of funding for the courthouse program to those proposed by GSA prior to OMB's arbitrary action.

The shortsightedness of OMB's actions is obvious. The courts are experiencing an ever-increasing workload. To delete courtrooms from buildings that should last for decades will only cause the judiciary to come back to this Subcommittee shortly after a building is occupied in order to seek funding for expansion or major alterations to a brand-new facility. I will further address the actions taken by OMB and the concept of "courtroom sharing" later in my testimony.

Current Status of the Program

The Administration chose not to request funding for courthouse construction in the budget for the previous three years. Congress was able to appropriate funds for courthouses in only one of those years. This lack of funding has created a backlog of projects and has placed GSA woefully behind schedule in delivering needed space for the courts. The courts, therefore, must continue to operate in facilities that are unsafe, overcrowded, and substandard. The Judicial Conference's FY 2001 request includes 19 projects which are ready to go. Eighteen of the projects require authorization by this Subcommittee. The Environment and Public Works Committee previously authorized construction of the Savannah project. The total cost of these projects requiring authorization is about $750 million, based on GSA's September 1999 estimates. Seventeen of these projects were included in GSA's original request to OMB. In addition, based on current information, one more project (in Fresno, California) should be ready for construction contract award in FY 2001. All of these projects are needed and will only fall further behind schedule if not funded. A listing of these projects in priority order is attached to this statement.

Our prioritized list of courthouse projects was established with the goal of requesting approximately $500 million for site, design and construction in each fiscal year. The judiciary would have kept to such a schedule if our construction budget requests had been recognized by the Administration in the fiscal years in which they were presented. In fact, if our projects had received funding in this manner, the cost of the FY 2001 projects would have been closer to $500 million than the $800 million that we are asking for. In addition to creating backlogs, delayed funding of scheduled courthouse projects can result in significant cost increases. Although at one point GSA estimated that construction costs were increasing an average of 3-4 percent for each year of delay, there have been several situations where the escalation factors have been significantly higher. For example, in Seattle it appears that costs increased in one year by about 8 percent due to the rising construction market costs not because of any change in the project.

The workload of the federal courts has grown tremendously over the past 10 to 15 years, largely as a result of legislative efforts to wage a federal war on crime and the illegal drug trade. The courthouse projects on the list for funding in FY 2001 are in areas of the country where there is dynamic population growth, combined with an increase in law enforcement activities. Moreover, as the criminal caseload has grown in number and complexity, the civil jurisdiction of the federal courts has also broadened and the number of bankruptcy filings has risen substantially. Finally, we have seen major growth in probation and pretrial services, with a staff of over 7,000 supervising about 30,000 pretrial defendants and 100,000 released offenders a number roughly equal to the inmate population of the federal prison system.

Court facilities must keep pace with the need for additional judges and court employees to handle these increased workloads. The same Administration that proposes shrinking courthouses is also asking for increased funding this year for additional border patrol agents and U.S. Attorneys and for the construction of federal prisons. Such law enforcement activities inevitably result in an increase in the judicial actions that must be handled in the federal courts.

Many of the existing court facilities were built over 50 years ago and have not been or cannot be altered to meet the needs of a modern day justice system. Generally, older courthouse structures cannot accommodate the technological advances necessary for a modern court. Security for jurors, witnesses, court employees, judges, and the public is compromised as they use the same hallways and elevators through which the Marshals bring individuals who have been charged with or convicted of serious crimes. In addition, problems with deteriorating heating and cooling systems as well as other building infrastructure problems will persist unless action is taken to fund the projects. Without the necessary funding, the federal judiciary will continue to face serious space and security concerns. We have provided subcommittee staff with a fact sheet on each courthouse project that describes the current housing situation and the need for a project at that location.

As I noted earlier, this is the first time in the past four years that funding has been included in the President's budget request for courthouse projects. The fact that a request was submitted to the Congress this year is a result of efforts made by this Committee, other members of Congress and the judiciary to impress the importance of a courthouse construction program upon key White House decision-makers. The Committee's letter last year to the President was undoubtedly very helpful. We also met with the White House Chief of Staff during the fall of 1999, and he assured us that consideration would be given to a program in FY 2001. As I noted earlier, however, the Office of Management and Budget unfortunately chose to reduce the number of courtrooms in each of the projects. OMB in fact developed its own courtroom sharing policy which is contrary to the policy approved by the Judicial Conference in 1997. This was done without any study, analysis, or understanding of the judicial system.

The Judiciary's Efforts to Strengthen the Courthouse Program Independent Review of the Judiciary's Space and Facilities Program

In recent years the judiciary has continually reviewed and significantly improved the operation of the courthouse construction program. Workforce growth and changing security and operational requirements pose significant challenges for this important program. It has been nearly 12 years since the judiciary last conducted an independent management review of its facilities program. As part of our on-going commitment to cost containment and program assessment and evaluation, we contracted with the consulting firm of Ernst and Young to review our entire space and facilities program. The study, which is close to completion, will address courtroom sharing and "utilization," our long-range planning process, courthouse design assumptions, internal space management policies, business practices, funding mechanisms, and resource allocation strategies. A critical dimension of the study involves having Ernst and Young solicit the views of interested parties such as the relevant congressional committees and others in the Congress, GSA, OMB, the General Accounting Office, judges, attorneys, the United States Marshals Service, and other court users. Ernst and Young is using teams of experts in architecture, construction, economics, and other areas to explore the issues raised and to develop recommendations.

We expect a final report at the end of April for review by the Conference's Committee on Security and Facilities. After our Committee considers the consultant's recommendation, we will have to seek approval of any policy changes from the Judicial Conference. In the meantime, however, it is critical that the courthouse construction program continue to move forward. It makes no sense to delay action on the courthouse program because of an ongoing study -- such a policy would hamper innovation throughout the government. Moreover, Ernst and Young has reported to the judiciary that the court projects requested by GSA in the fiscal year 2001 budget are the result of methodical planning and review processes put in place by the judiciary and GSA.

Courtroom Sharing

For the past few years, the topic of courtroom sharing has been in the forefront of Congressional and Executive Branch inquiry and media speculation. It has been suggested that because most courtrooms are not in use 100% of the time, federal judges should be able to share courtrooms in order to save the cost of constructing courtrooms. Recognizing these concerns, in 1997 the Judicial Conference thoroughly reviewed the matter and adopted a policy on courtroom sharing. This policy balances the essential need for judges to have an available courtroom to fulfill their responsibilities with the economic reality of limited resources. It provides one courtroom for each active district judge and for each senior judge who maintains a substantial caseload. For senior judges, who do not carry a caseload requiring substantial use of a courtroom, and for visiting judges, the policy sets forth a non-exclusive list of factors for circuit councils to consider when determining the number of courtrooms needed at a facility. Each of the projects on the attached list incorporates this policy. Notwithstanding the Conference's policy, I would like to emphasize that there is no research which supports courtroom sharing. In addition, the doctrine of separation of powers creates serious constitutional concerns if the executive branch should attempt to establish courtroom usage policy. Moreover, none of the fifty state-court systems has ever adopted a policy of sharing courtrooms.

Simplistic approaches to the assessment of courtroom needs, such as the use of queuing theory, might suggest that one can simply add up the average number of hours that judges spend in courtrooms and then calculate the number of courtrooms that would be needed if all of those courtroom hours were perfectly distributed. There are many fundamental flaws with this notion, the foremost of which is the assumption that a court is akin to a post office or bank, where litigants, witnesses, jurors, probation officers, interpreters, court reporters, prisoners, and others are lined up and waiting outside the courthouse door for the next available courtroom. Under these conditions, due process, public openness, security, and notification requirements would be essentially abandoned. Moreover, the costs and the delays for litigants, including the largest litigant in the federal courts the federal government itself, would be significant.

On the other hand, the cost of a courtroom, when compared over its lifetime to the overall cost of the courthouse, is not substantial. The General Services Administration has estimated that it costs about $1.5 million to construct a courtroom and its associated spaces (including jury rooms, attorney conference rooms, public waiting areas, and prisoner holding cells). With use of these facilities expected for at least 30 years, this equates to a construction cost of $50,000 per year. If, however, courtroom sharing were required, new administrative costs would be incurred by the government because of the need to schedule the use of which courtroom might be available for what proceeding. Furthermore, under a courtroom sharing scenario, the last-minute cancellation of even one civil jury trial due to the lack of a courtroom can result in many thousands of dollars in legal fees and expert witness costs for the litigants. Also, delays in criminal proceedings will cause potential problems with the Speedy Trial Act and increase expenses for the Department of Justice's U.S. Attorneys and U.S. Marshals and for federal public defenders. In federal courts where courtroom sharing among active judges has occurred out of necessity, judges have reported serious difficulties. For example, the 3 to 2 ratio of judges to courtrooms suggested by OMB is currently in effect in the federal district courthouse in Brooklyn, New York, while a new facility is under construction. The judges, staff, and others affected have struggled to make it through the temporary situation. Last minute changes, events that go over schedule, and other difficulties have resulted in wasted time for judges and other participants. Recently, a magistrate judge canceled a civil jury trial the week before its scheduled start because the court could not guarantee an available courtroom and the attorneys did not want to incur the potentially exorbitant expert witnesses' fees. The earliest date for rescheduling the trial was two months later. In another situation, a defendant seeking a hearing to determine whether he should remain in custody spent longer in detention than necessary because a courtroom was not available for his hearing. One judge, frustrated by his inability to obtain a courtroom, held a proceeding in a public park outside the courthouse. These actual experiences demonstrate the problems associated with courtroom sharing.

According to Ernst and Young, the judges in Brooklyn are uniform in concluding that courtroom sharing has strained the operational effectiveness of the court and that courtroom sharing as a permanent policy would be counterproductive. A 3 to 2 ratio causes chaos in a system that requires orderly process in order to be fair and just.

Prioritizing Courthouse Projects

The judiciary continues to review and update its prioritization of projects using a weighted scoring methodology. By continuously reviewing our priorities, we are able to ensure that changing circumstances at a particular location are taken into account so that necessary adjustments can be made. I am pleased to report that the process we established in response to Congress's suggestion that all projects be ranked in order of priority has worked quite well. I am very concerned, however, that continued delays in funding courthouses or reductions in the sizes of the buildings could result in a breakdown of this prioritization process with individual districts attempting to fulfill their needs without regard to the established process.

A courthouse project is not proposed for consideration unless the district's long-range facility plan indicates that there is no more room for district judges in the existing facility. In virtually every proposed project, this determination is made after all executive branch agencies and court-related units (probation, pretrial services, the bankruptcy court) have been moved from the existing building. In this sense, the expansion capacity of the building is the primary consideration in determining the need to take some action.

The lack of sufficient space can cause great waste and inefficiency in court operations. In worst case scenarios, trial courts are split into separate facilities causing the dual management of records, prisoners, and duplicate security screening. In addition, security risks are a grave concern in all public buildings, including federal courthouses. Tragic events in Oklahoma City, Oklahoma, shootings in courthouses in Topeka, Kansas, and Chicago, Illinois, and serious threats on the lives of judges who are trying international terrorists underscore the need for proper security arrangements.

Summary

A number of new courthouses have been occupied over the past few years. Public reaction has been very favorable. The courthouses being delivered by GSA today are high quality, operationally efficient buildings that should last well into this century.

Many lessons have been learned as the Congress, GSA and the judiciary have worked together over the past several years on the courthouse program. We have incorporated many of the recommendations made by this Committee into our planning process and design standards in order to improve management of the program. We will be studying whether there are additional ways to control costs and make the program even more effective in the months ahead. Security considerations continue to be a major concern. The judiciary hopes the Committee will recognize the actions taken by the Judicial Conference as evidence of the judiciary's commitment to a productive and cooperative working relationship. It is imperative that the integrity of the judiciary's rightful role in determining courtroom usage remains intact; the constitutional rights to trial and due process are too important to be risked on whim. Nor should the guarantees of these constitutional rights, which rest upon the presumption of adequate, dedicated courtroom space, be held hostage to such uncertain, untested, and untried cost-saving schemes. We ask that you take action to authorize the new courthouse projects on the attached list in FY 2001 at the levels originally calculated by GSA in September 1999. We are also committed to working with you on adopting appropriate recommendations from Ernst and Young's final report.

Thank you for the opportunity to testify before the Subcommittee. I would be pleased to answer any questions you might have at this time.

FY 2001 Courthouse Construction Projects Judiciary Prioritized Plan