‘Judicial emergency’ rules issued in Eastern District

For years, the now-former chief judge of the U.S. Eastern District of California, Lawrence J. O'Neill, warned of serious consequences if a shortage of judges was not addressed. Those warnings came to fruition this week through numerous orders citing a "judicial emergency" in the district.

The standing orders were prompted by the departure of O'Neill himself; he went on senior inactive status on Feb. 2.

They were issued in a variety of civil and criminal cases by U.S. District Judge Dale A. Drozd, who wrote in each order he will "now be presiding over all criminal and civil cases previously assigned to Judge O'Neill."

He then invoked the court's Local Rule 102(d), governing "procedures outside the rules." Under this authority, he said the court would schedule fewer hearings and rely more on briefs and magistrate judges.

"Hearings on civil law and motion matters will no longer be feasible," Drozd wrote, adding it is "unlikely" that many civil cases "will be able to proceed to trial on the currently scheduled date ... the setting of new trial dates in civil cases would be purely illusory and merely add to the court's administrative burden."

"He wants people to understand the realistic challenges facing the court," U.S. District Judge Kimberly J. Mueller, who became the court's chief judge on Jan. 1, said in a phone interview Wednesday.

"It's been a long time coming," Mueller said, adding "we know" the U.S. Senate and President Donald J. Trump's administration are working on filling the court's vacancies. But even once these slots are filled, she said, the court will be in need of additional judgeships.

Mueller also issued another series of orders this week stating certain cases would not be assigned to a particular judge.

"The above captioned case shall be and is hereby UNASSIGNED and shall remain unassigned until a new district judge is appointed," she wrote in one typical passage.

Drozd's orders happened within the normal course of reassigning cases, she said.

But the position in which Drozd and the other judges have found themselves is anything but. The court has just six slots for full district judges, but two of these jobs are now vacant. Mueller, John A. Mendez and Troy A. Nunley are based in Sacramento. Drozd is based in Fresno, but it scheduled to transfer to the Sacramento courthouse once the two U.S. District Judge vacancies in Fresno are filled. He is taking on a schedule with little of the downtime that judges typically use to write their opinions,Mueller added.

"The judges of the United States District Court for the Eastern District of California have long labored under one of the heaviest caseloads in the nation," Drozd wrote in language that appeared nearly verbatim in numerous orders.

The "procedures outside the rules" will apply to his own cases, carrying the designation DAD, and O'Neill's cases, now marked NONE.

The orders also noted Judge Morrison C. England Jr. went on senior status on Dec. 17 while Judge Garland E. Burrell Jr. "assumed inactive senior status" on Dec. 31. Mueller said England will continue to work on his existing cases while Burrell's cases have been reassigned.

Drozd concluded with a resigned tone: "The emergency procedures announced above are being implemented reluctantly. They are not, in the undersigned's view, conducive to the fair administration of justice. However, the court has been placed in an untenable position in which it simply has no choice."

O'Neill repeatedly warned for years such steps would become necessary, including in an October letter to California's U.S. Senators, Dianne Feinstein and Kamala D. Harris, and White House Counsel Pat Cipollone. Feinstein's and Harris' offices did not respond to emails seeking comment on Wednesday.

"I write this letter out of concern for some 8.5 million people who live in the Eastern District of California, with my intention to prevent an impending, acute, and judicial catastrophe," O'Neill wrote. "The statement sounds serious and ominous. It is both. It may also sound like an exaggeration. It is not."

He went on to ask that the two open judicial slots in the district be filled and to point out that the district has received "no new judgeships since 1978." O'Neill warned a continued lack of action could result in "abhorrent outcomes," including "a high possibility that a number of criminal cases will have to be dismissed due to an inability to comply with the Speedy Trial Act."

O'Neill testified to the U.S. Senate Judiciary Committee on the need for more judges in 2009. In 2011 Feinstein led a bipartisan group of Senators who introduced the Emergency Judicial Relief Act. This bill would have added new judge positions in Arizona, California, Minnesota and Texas, but it failed in the committee process.

"Judge O'Neill has shown the brightest light possible on our district," Mueller said.

The chief judge of the U.S. Central District of California, Virginia A. Phillips, also sent a letter to members of Congress in October warning of a judge shortage in her district. She wrote the district needs up to 10 new judges and urged Senate action on stalled nominees. A representative of the Central District clerk's office said Wednesday the court has not issued any emergency orders relating to insufficient judges.