Bench Blues

The judiciary starts scrambling after state cuts in visiting judges

In a move that will alter the way Harris County courthouses do business, state legislators have decided that visiting judges have overstayed their welcome.

The county's judiciary found out only last week that the last legislative session -- in massive cuts to reduce looming deficits -- slashed the upcoming statewide budget for visiting district judges by about two-thirds, to around $3.3 million. That's about what Harris County alone had been getting to staff courts with the judge temps.

In the past fiscal year, the 59 state district courts in Harris County relied on those nonelected judges to fill in an average of 44 workdays -- more than two months -- per court. That would drop to a mere ten days per court -- two weeks -- if the county's share of visiting judge funds is apportioned strictly on the basis of population.

Those two weeks would have to cover everything from annual vacations and sick leave, time off for conferences and required legal seminars and other matters. It would also largely curtail the current use of visiting judges to handle regular dockets while elected judges are involved in long trials.

"It is not like every judge is taking 44 days a year of vacation," explains Judge Mark Davidson, the chief administrative district judge for the county. "That includes the special impact court operations, death penalty trials and everything else."

Critics of the cutback predict that caseloads could increase substantially, lengthening the waits for trials or other dispositions.

District Clerk Charles Bacarisse reported that lawsuits filed in civil district courts (not family and juvenile courts) have leveled off at roughly 25,500 annually over the last five years, while the number of disposed cases has declined somewhat from about 29,000 yearly from 1998-2000 to 26,000 in 2001 and last year.

On the criminal courts side, felony case filings have headed upward in the last five years, from about 27,000 in 1998 to 33,500 last year. In that period, about 35,500 cases were disposed of annually until last year, when those jumped to almost 40,000 cases.

In addition to affecting the caseloads, the decrease in visiting judges is expected to slow what critics call the Harris County killing machine -- the capital punishment verdicts that keep the county sending record numbers of inmates to death row.

Visiting judges are regularly used in the arduous process of individually questioning jurors in the selection of juries in capital punishment cases. That can take up to four weeks, so elected criminal court judges often handle their regular dockets and have the temporary judges preside over jury selection in the capital cases.

"Judges will be working harder, but at some point dockets will increase," Davidson predicts. "Without the resource of former judges, not as many cases will go to trial. When a judge gets caught up in a long trial, the relief valve we've always had -- retired judges willing to come back and hear the balance of the docket -- will disappear."

Some courthouse regulars say the reductions are long overdue, that the elected judiciary has exploited the use of visiting judges.

"You can hardly be sympathetic," said one veteran criminal defense attorney. "These elected judges make about $120,000 annually; they get cars or allowances and free parking -- even free license plates. They've got benefits and retirement plans. Now they're being asked to work for it, and they get all upset. That's bullshit."

Two other lawyers revived the usual complaint: that it only takes a late-week, afternoon stroll through the civil or criminal courts buildings to realize how few elected judges are still conducting court or even are in their chambers.

Davidson defends the Harris County work ethic, saying the average per-court stay of 44 days for visiting judges compares favorably with those in some other parts of the state. Dallas averaged 63 days, Hidalgo County had 86 days, and El Paso was tops with 93 days of visiting judges per court.

The judiciary also argues that steep decreases in visiting judge funds can be foolish for the overall state budget. While a visiting judge makes about $400 a day from the state, the annual cost of staffing and operating a courtroom is estimated at more than a half-million dollars a year. The judges contend that the state, rather than paying those costs for more full-time courts, saves by having a fill-in judge handle dockets on a temporary basis.

"It is far more economical to have visiting judges do it than create a new court," says Debbie Mantooth Stricklin, chief administrative judge for the state district criminal courts.

Elected judges aren't bound by rules on vacation days or how they use their time in office, although their efficiency in handling caseloads can become one of the few issues in judicial re-election campaigns. Of course, seasoned lawyers also tell of some judges who have used visiting jurists to staff their courts -- at the same time those incumbent judges are on the campaign trail, touting their work in reducing dockets.

Asked if he knew of any abuses in the use of visiting judges, District Attorney Chuck Rosenthal shot back with a quick "no comment."

The judiciary here rarely relied on visiting judges until the last two decades. By the late 1990s, one in every four cases statewide was being heard by a visiting judge. Most are retired, although some returned as fill-in judges after their defeats by the electorate -- especially in the years of sweeps by both Democrats and Republicans.

That created more controversy about accountability -- having local cases heard by a judge who hadn't been selected by the electorate, or who had actually been voted out of office by constituents. Complaints by former district attorney Johnny Holmes led to a general policy of not using defeated judges unless a sitting jurist specifically requested him or her for that court.

"Visiting judges are not responsible to the voters; they are not responsible to anybody, really," says Rosenthal. "Except if they want to get invited back again, they treat the other judges nicely. But I've never understood why anybody allowed defeated judges to be here, anyway."

Defenders of the system say accountability can actually be higher for visiting judges, because their rulings usually get more scrutiny and they aren't invited back if their performance is subpar.

Visiting judges also rule in cases where the local judiciary may have conflicts of interest. Attorneys say there have been instances when an outside judge will be pressed into service to make rulings in controversial or politically sensitive cases, so the elected judges won't have to suffer the fallout from voters or influential sides in the litigation.

Tightening up the visiting judge programs is also expected to have hard financial impacts for some visiting judges who need the income or the time to become vested in the judicial retirement system. The visiting judges could work as little as one day a month and still receive retirement credit for working the entire month (the state paid the rest of the contribution to their retirement for that month). A bill in the last session by state Senator Jon Lindsay proposed to end that setup by requiring judges to make the full contribution for retirement. An aide says the bill died in committee.

Elected judges for Harris County are bracing for the final budget allocations before making any formal adjustments to the visiting judge cutbacks. The state comptroller's office confirmed that the budget's final appropriation for the fiscal year beginning in September includes $3.4 million for visiting judges -- down from last year's $7.3 million (visiting judge funds actually exceeded last year's allotment by nearly $3 million). However, the new budget still must be certified by Comptroller Carole Strayhorn and signed by Governor Rick Perry.

Administrative Judge Davidson says he has heard that funds for about 1,000 days of visiting judges have been designated for the 34-county judicial region that includes Houston. The presiding jurist of this region, Olen Underwood of Conroe, is expected by July to determine how many of those days will be allotted for Harris County, which has about 60 percent of the population of the judicial region.

However, local judges are already preparing for the worst.

"We're just going to have to put our heads together and come up with ways to cover for one another," says Stricklin. "We'll have to come up with a lot more creative ways to deal with it. And we'll have to deal with it -- there's no two ways about it."

Rosenthal says he won't alter his approach to district attorney office operations, although he concedes that the pace of death penalty trials may be slowed down "a little bit" by the lack of visiting judges to handle jury selection.

"The judges are going to have to schedule their docket a little bit differently to allow for their vacations and whatever," Rosenthal says. "But other elected judges can pick up the slack on some of those things. It's just a matter of scheduling it correctly."

Rosenthal also notes that other new legislation -- not mentioned by judges -- may offset the reduction in visiting judges. Lindsay sponsored a new law that allows Harris County's judges to seek approval from Commissioners Court for the creation and funding of magistrate positions to help with special dockets such as drug cases. The magistrates would take pleas and handle some other uncontested or preliminary matters for the regular judges.

The district attorney says the judges, who pushed for the legislation, say only one magistrate would be used, although the bill sets no limit on how many could be appointed -- assuming that commissioners would agree to fund the positions.

Some skeptics see irony in the Republican-controlled state government slashing funds for the all-GOP county judiciary. Is that betrayal?

"I wouldn't put it that way at all," Stricklin says. "I realize that everybody had to have budget cuts. These are just what we wound up with on our end."

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