[Congressional Record Volume 144, Number 3 (Thursday, January 29, 1998)]
[Senate]
[Pages S227-S229]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MACK (for himself and Mr. Graham):
  S. 1585. A bill to provide for the appointment of additional Federal 
district judges in the State of Florida, and for other purposes; to the 
Committee on the Judiciary.


               THE FLORIDA FEDERAL JUDGESHIP ACT OF 1998

  Mr. MACK. Mr. President, I come before the Senate today to introduce 
with my esteemed colleague and friend, Senator Graham, the Florida 
Federal Judgeship Act of 1998. This legislation will provide the Middle 
and Southern Districts of Florida with the judgeships which have been 
recommended for them by the Judicial Conference of the United States. 
The Middle District would receive three new permanent judgeships and 
one temporary judgeship (the highest number of new judgeships 
recommended for any district in the country), while the Southern 
District would receive two new permanent judgeships.

  I would not be introducing this bill if I did not believe there is a 
real need for increased judicial resources in Florida. The pressures 
upon our court system, particularly in the Middle District, are some of 
the most acute in the entire country. The Middle District currently 
contains 55% of Florida's population, projected to grow to two-thirds 
of the population by the year 2005; and yet this District has only one-
third of Florida's judges. This District also contains the federal 
correctional center at Coleman. When construction of this facility is 
completed in FY 1999, it will be the largest prison complex in the 
country. The increased prisoner petitions which come with this will 
stretch judicial resources even further.
  To add to the problem, a portion of the Middle District has been 
designated a High Intensity Drug Trafficking Area. While I am pleased 
that Florida will be receiving additional assistance in the war against 
drugs, we must also recognize and anticipate the increased demands that 
this will put upon this district as more criminals are apprehended and 
prosecuted.
  Both districts contain major tourist attractions in frequently 
visited cities, including Disney World, Universal Studios, and Busch 
Gardens in Tampa and Orlando and the international playground of South 
Beach in Miami. This heavy flow of both tourism and winter residents 
serve to make the needs of these two judicial districts unique in our 
nation.
  The statistics kept by the Administrative Office of the US Courts 
demonstrate the compelling need for new judges in these districts. The 
numbers for the latest twelve month period show that the Middle 
District ranks second in the nation in average cases (adjusted for 
complexity) filed per judge, with a crushing 855. The Southern District 
averages 605 per judge. To put this in perspective, the national 
average for this time period was 519. Clearly, both of these districts 
are in need of relief.
  I urge the Judiciary Committee and the full Senate to consider and 
pass this legislation expeditiously. I would also like to take this 
opportunity to express my gratitude to Chairman Hatch for his swift 
consideration of all of the judicial nominees from Florida last year. 
The Southern and Middle Districts of Florida received three excellent 
new district judges, Donald Middlebrooks of West Palm Beach, Alan Gold 
of Miami, and Richard Lazzara of Tampa. In addition, Judge Stanley 
Marcus was nominated to the federal appeals court and confirmed by the 
full Senate in only six weeks. I know I speak for both Senator Graham 
and myself in saying that we are grateful for Chairman Hatch's 
responsiveness to the needs of these districts.
  It will not be possible to provide Floridians with a safe environment 
and access to justice unless there is a court system in place which can 
handle the demands of this dynamic and growing part of our country. 
This legislation is integral to providing that court system.
  Mr. GRAHAM. Mr. President, I am extremely pleased to join with my 
distinguished colleague from Florida, Senator Mack, in introducing the 
Florida Federal Judgeship Act of 1998.
  This legislation will create six additional U.S. District Court 
judgeships in Florida--two in the Southern District and four--three 
permanent and one temporary--in the fast-growing Middle District of 
Florida.
  Mr. President, make no mistake: Florida's federal courts are in the 
midst of a full-blown crisis. Currently, the Miami-based Southern 
District has sixteen judges. The Middle District, which also includes 
the Jacksonville, Tampa, St. Petersburg, Orlando, Sarasota, and Fort 
Myers metropolitan areas, has eleven.
  Because this number of judgeships is too small to meet the increasing 
demand of Florida's rapidly growing population, judges face 
overwhelming caseloads, and the public faces a denial of justice.
  Prosecutors and law-enforcement personnel are stymied in their 
efforts to mete out swift justice.
  Civil litigants are forced to endure unreasonable waits to bring 
their cases to resolution.
  Prominent legal and judicial officials all over Florida have told us 
that this is not a tenable situation.
  For example, Middle District U.S. Attorney Charles Wilson, whose 
office is responsible for bringing alleged criminals to trial, has said 
that the judicial shortage has a ``negative and severe'' effect on the 
work of federal prosecutors and law enforcement officials.
  Floridians are not alone in their concern about overcrowded court 
dockets.
  In September 1996, the Judicial Conference of the United States--the 
principal policy-making body of the Federal judiciary, which is chaired 
by the

[[Page S228]]

Chief Justice of the Supreme Court of the United States and comprised 
of Federal judges from throughout the United States--asked Congress to 
create four new judgeships in the Middle District and two in the 
Southern--precisely what our legislation would authorize.
  Senator Mack and I are introducing our bill so that Congress can meet 
the urgent request of the Judicial Conference, and provide the 
additional judicial resources needed for these two U.S. District Courts 
to meet their increasing caseload.
  We are certain that many States have justifiable concerns about 
overcrowded Federal District Court dockets. I hope that this Congress 
this year will meet those needs by considering and adopting the 
recommendations that the Judicial Conference of the United States 
submitted to us almost a year and a half ago.
  But we also believe that the urgent nature of Florida's judicial 
crisis makes our State a special case.
  I am going to be saying some things about Florida of which I am not 
proud. They are not positive. But they happen to be the facts as to the 
circumstances that our Federal courts face.
  First, Florida has one of the highest caseloads per judge in the 
Nation.
  For the last several years, the Judicial Conference has proposed all 
recommendations for increased judgeship based on weighted filings--a 
number that takes into account both the total number of cases filed per 
judge and the level of case complexity.
  I would like to note that this is a retrospective look. The Judicial 
Conference looks at prior history, in terms of evaluating future needs. 
In the case of the State of Florida, because of the rapid growth, which 
I will soon detail, and because of the time required--a year and a half 
has already passed since the Judicial Conference did the calculations 
that I will soon review--Congress has not yet acted on its 
recommendation to authorize these additional positions. It would then 
require the process of actually filling those vacancies. So, there will 
be a gap of many months between the time that the numbers were 
calculated based on past history, as to what the need was, before 
relief in the form of an actual human being sitting at a bench to 
render justice will be in place.
  But looking back to the 1996 numbers, the Southern District's 
weighted filings stood at 588 per judge.
  This was 33 percent above the national average of 435 weighted filing 
per judge.
  In the Middle District, the story was even worse--623 weighted 
filings per judge, a figure that represented one of the highest in the 
entire nation.
  As a result, nearly 1,800 criminal defendants have cases pending in 
the Middle District.
  The story is even worse on the civil side of the docket, where more 
than 6,200 cases have yet to receive final disposition.
  In fact, the situation is so dire that Middle District Chief Judge 
Elizabeth Kovachevich has announced plans to shut down the Federal 
courthouses in Jacksonville and Orlando for 3 months this summer and 
recruit their judges, and any others from around the Nation who can 
spare the time, to tackle the growing civil case backlog in the Tampa 
Bay area.
  Innovative measures like this may help to alleviate the problem in 
the short-term.
  But the Florida caseload is not going to experience a slowdown in 
growth anytime soon, and the judicial backlog will get worse unless 
Congress takes preventative action for the long term.
  Second, this legislation recognizes that Florida's largest Federal 
judicial districts are responsible for a massive area that includes 
nearly 80 percent of Florida's 15 million residents.
  The Southern and Middle Districts combined jurisdiction stretches 
from Key West--the southernmost city in the continental United States--
north to include Miami, Ft. Lauderdale, West Palm Beach, Melbourne, 
Fort Myers, Sarasota, Tampa, St. Petersburg, Orlando, and Jacksonville.
  Florida adds over 200,000 new permanent residents every year.
  Between 1980 and 1995, for example, the middle district grew by 52 
percent, and it is expected to increase even from this elevated new 
level by an additional 21 percent in the next decade.
  However, since 1990, the last time Congress approved more judges for 
Florida, our United States district courts have not received any 
additional resources from the Federal Government to cope with this 
growth.
  Third, this proposal will assist the work of law enforcement 
officials. If we are committed to assuring that criminals face 
punishment that is both just but swift, we must be willing to provide 
resources to all aspects of the judicial system.
  In both the southern and middle districts, drug prosecutions and 
other serious criminal cases make up a large percentage of the total 
case files. For example, both the southern and middle districts have 
been designated by this Congress as high-intensity drug trafficking 
areas. These antidrug zones generate a substantial number of lengthy 
multidefendant prosecutions, and the addition of judges will help law 
enforcement officials and prosecutors in their fight against drug 
crimes.
  In addition, the Federal prosecutors and law enforcement officials 
throughout Florida, but especially in the southern and middle 
districts, are being forced to spend more time combating the cheats, 
the fly-by-night operators and the other criminals who are engaged in a 
systematic campaign to defraud and plunder our Medicare and other 
health care programs.
  Mr. President, as shocking as it is, it has been estimated that 
nearly 20 percent of all Medicare expenditures in the Southern District 
of Florida are lost to fraud. Nearly 30 percent of all Medicare fraud 
nationwide takes place in the State of Florida.
  In November of 1997, the new southern district U.S. Attorney Tom 
Scott pledged to create a comprehensive antifraud task force made up of 
local, State and Federal law enforcement officials to fight health care 
fraud. I am optimistic that this new effort will be successful in 
increasing the number of fraud offenders brought to justice. I am 
hopeful that it will deter others from entering this pernicious 
activity. But I am very concerned that unless the southern and middle 
districts have the adequate number of judges, many of these charlatans 
will not receive the swift and severe punishment they deserve.
  It is vital that we act quickly to resolve this crisis. Since 1991, 
filings have gone up 21 percent in the middle district; 30 percent in 
the southern district. Congress and the White House must be vigilant in 
their shared responsibility for recommending, nominating and confirming 
Federal judicial nominees.
  Mr. President, I commend Chairman Orrin Hatch, of the Judiciary 
Committee, and its membership, including our current Presiding Officer, 
for their recognition of the overcrowding problems facing Florida's 
Federal district courts.
  Last year, the Senate confirmed three Federal district judges--Donald 
Middlebrooks of West Palm Beach, Alan Gold of Miami, and Richard 
Lazzara of Tampa--to replace three judges who had retired or taken 
senior status. From late September of 1997, when Judge Lazzara was 
confirmed, until yesterday when the President nominated William P. 
Dimitrouleas of Fort Lauderdale and Judge Steven Mickle of Gainsville 
to fill openings in the Southern and Northern Districts of Florida, we 
had no judicial nominations pending before the Senate.
  Senator Hatch's and Members' leadership and understanding and their 
determination to address Florida's special needs are very much 
appreciated by the residents of our State.
  U.S. Federal district courts are the first stop for most citizens 
involved in the Federal judicial system. Most Federal cases are 
disposed of at the district court level. It is essential that these 
citizens have their claims heard in a timely manner.
  As the court caseload increases nationally, the Senate must be 
willing to expand judicial positions where they are needed.
  Our legislation is simple, sound and will serve the interest of 
America and will serve the interest of our State of Florida.
  I look forward to working with Senator Mack, with yourself and with 
the other members of the Judiciary Committee on this matter, Mr. 
President. I urge all my colleagues to support the passage of this 
much-needed legislation. For thousands of crime victims,

[[Page S229]]

for thousands of civil litigants in Florida's southern and middle 
judicial districts, justice delayed is rapidly becoming justice denied.
  Mr. President, I appreciate the opportunity to join my colleague, 
Senator Mack, in introducing this legislation.
  I ask unanimous consent that two letters which I have received--one 
from the middle district chief judge, Judge Elizabeth Kovachevich, and 
one from the U.S. Department of Justice, the U.S. Attorney for the 
Middle District of Florida, Mr. Charles Wilson--be printed in the 
Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                              U.S. District Court,


                                   Middle District of Florida,

                                     Tampa, FL, December 17, 1997.
     Hon. Bob Graham,
     U.S. Senate, Washington, D.C.

     Hon. Connie Mack,
     U.S. Senate, Washington, D.C.
       Dear Senators Graham and Mack: Initially, I wish to 
     sincerely thank both of you for your respective 
     participations in several of the events scheduled in Tampa on 
     December 12, 1997. Each of you attended two of the four 
     activities, and it certainly was greatly appreciated, and 
     noted, by the other participants and attendees of those 
     respective celebrations. Your presence was a significant 
     contribution toward the success of that day.
       Further, your joint letter that was published in the Tampa 
     Tribune last week on December 12 produced great positive 
     reaction on this West Coast of Florida! The Accelerated Trial 
     Calendar is the ``last hurrah'' for Tampa/Fort Myers by the 
     eleven judges of the Middle District of Florida before senior 
     status claims two of our eleven by the year 2000. If we are 
     successful, we must be prepared to utilize the same tactic in 
     the future in Jacksonville and Orlando.
       Consistent with the foregoing, and our efforts to help 
     ourselves, we enclose a conservative statistical compilation 
     prepared by our Clerk's office in MD/FL, which graphically 
     demonstrates what would occur without the ATC, and, what will 
     happen when we go from eleven to nine active United States 
     District Judges. I remind you that our previous Tampa/Fort 
     Myers chart shows that as of October 31, 1997, our real 
     projections for July 1998, without the ATC, would have been 
     4,400 civil cases and 1,000 criminal cases pending, totaling 
     5,400 cases for the Tampa/Fort Myers judges!
       These next five years will see a congressional election, 
     with consequences in 1999, and, a presidential and 
     congressional election, with consequences in 2001. If this 
     district must wait for national political machinations, we 
     will collapse! Just the plans for H.I.D.T.A. in Tampa and 
     Orlando, during the next three years, and the funding for 
     same, will generate substantial multi-defendant, multi-month 
     prosecutions of persons ``targeted for federal sentencing 
     guideline implications;'' these are not in any of our present 
     calculations!
       I would hope that the Senate Judiciary Committee will 
     provide us with a hearing to answer any questions regarding 
     your proposed legislation to provide us with new judgeships 
     as soon as reasonably possible, perhaps in February 1998.
       With warmest personal regards, I am
           Sincerely yours,
                                         Elizabeth A. Kovachevich,
     Chief Judge, Middle District of Florida.
                                  ____



                                   U.S. Department of Justice,

                                          Tampa, FL, May 21, 1997.
     Hon. Bob Graham,
     U.S. Senate, Washington, D.C.

     Hon. Connie Mack,
     U.S. Senate, Washington, D.C.
       Dear Senators Graham and Mack: You have requested comment 
     from the United States Attorney regarding the impact of the 
     shortage of resident District Court Judges on the U.S. 
     Attorney's Office for the Middle District of Florida. I write 
     to report that the impact is negative and severe.
       For our Criminal Division, the most direct effect of the 
     judicial shortage is the assignment of cases to visiting 
     judges for trial. Although visiting judges provide a great 
     service to the Middle District, the use of them for a 
     substantial number of criminal trials poses several problems. 
     First, the very fact that a case is transferred to a visiting 
     judge's docket often causes unnecessary delay. Secondly, I am 
     advised by Assistant United States Attorneys that visiting 
     judges are, understandably, not as well-versed in Eleventh 
     Circuit case law, requiring the expenditure of additional 
     time by both prosecution and defense attorneys in addressing 
     significant legal issues during the course of a case. 
     Finally, the Middle District of Florida is one of the leaders 
     in the country in the filing of multiple-defendant and 
     complex white collar crime litigation characterized by longer 
     trials. For example, last year, our office prosecuted 16 
     members of the Outlaws Motorcycle Gang for conspiracy, 
     racketeering and other offenses. The trial lasted for 
     eighteen weeks. During that period of time, the cases 
     assigned to the presiding judge accumulated without the 
     judicial attention that they would have ordinarily received. 
     Given our present prosecution priorities (i.e., drug 
     trafficking, violent  crime, health care fraud and 
     telemarketing fraud), we expect that the number of 
     multiple-defendant and sophisticated white collar criminal 
     cases will continue to increase in the future. In fact, 
     many such cases are awaiting trial at the present time.
       Thus far in Fiscal Year 1997, 32 per cent of criminal jury 
     trials (8/25) in the Tampa Division of the Middle District of 
     Florida were conducted by visiting judges. Another 20% of 
     these trials (5/25) were conducted by a judge on senior 
     status. In our Ft. Myers Division, where we presently have 
     seven criminal AUSAs but no resident district Court Judge, 
     fully 91% (10/11) of the criminal trials were conducted by a 
     visiting judge.
       Our Ft. Myers Division is most severely impacted by the 
     judicial shortage. Because of the absence of a resident 
     judge, Ft. Myers cases are assigned to Tampa judges. As a 
     result, some cases that should be tried in Ft. Myers are 
     moved to Tampa to accommodate the judges' busy schedules. 
     This includes many cases that are important to the citizens 
     in and around Ft. Myers. In fact, the bigger the case (and 
     thus the more local attention warranted by it) the more 
     likely it is to be transferred to Tampa for no other reason 
     than the Court's schedule. Transfers are also expensive. Even 
     for relatively insignificant hearings in a case, if there is 
     a disputed issue, all attorneys, parties and witnesses must 
     take an entire day to drive to Tampa and back. If a Ft. Myers 
     case is tried by a Tampa Judge in Tampa, my office must incur 
     the travel and accommodation expense of the Ft. Myers AUSA 
     originally assigned to the case.
       Our Civil Division is also impacted quite directly by the 
     shortage of Article III judges in our District. First, in 
     light of their heavy caseload, District Court judges 
     typically do not have the time to grant oral argument in 
     connection with sophisticated motions to dismiss or motions 
     for summary judgment in civil cases. The result is that the 
     judges take several months to decide motions that might 
     otherwise be disposed of quite promptly if oral argument were 
     heard. In those cases where the motions are meritorious, the 
     delay results in unnecessary expenditures on expert witnesses 
     and other pretrial matters, all to the great detriment of the 
     parties even if the correct result is ultimately reached. 
     Worse yet, meritorious motions are sometimes denied only to 
     have the court adopt the movant's legal position after trial 
     (the first time the judge has had a real chance to ponder the 
     case), suggesting that trial was in fact unnecessary. We 
     believe that these problems would be avoided by oral argument 
     in many instances, but we recognize that our overburdened 
     judiciary simply does not have the luxury to grant oral 
     argument very often.
       Second, the lack of a judge in Fort Myers has a serious 
     negative impact on civil cases there. By way of illustration, 
     we are presently prosecuting a complex ``fair housing'' case 
     in the Fort Myers Division. At one point the District Court 
     judge transferred the case to Tampa, notwithstanding that 
     numerous victims reside in south or southwest Florida and 
     would have been substantially inconvenienced by a Tampa 
     trial. On our motion, the case was transferred back to Fort 
     Myers, but it cannot be tried for many months. If a judge 
     were resident there, this case would probably have been tried 
     already.
       FInally, civil cases which for some reason are not reached 
     on the calendar of one of the visiting judges usually roll to 
     the next month in which a nonresident judge will be visiting, 
     as opposed to the next calendar month. This causes 
     significant unwarranted delay. For example, in a large 
     pending discrimination case, an opposing counsel who appears 
     particularly reluctant to go to trial was able to obtain a 
     continuance, thereby delaying the case not for one month, but 
     for approximately five. This phenomenon would also be 
     eliminated by additional judgeships.
       I hope the information supplied herein is helpful. If I can 
     be of further assistance, please let me know.
           Sincerely yours,
                                                Charles R. Wilson,
                                                    U.S. Attorney.
                                 ______