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More Judges Wanted to Fix Arizona’s ‘Invisible Judicial System’

March 7, 2022, 9:45 AM

Making the trip to U.S. District Judge Diane Humetewa’s courtroom in Phoenix goes beyond the typical inconvenience for people joining proceedings from far-flung tribal lands in Arizona.

Some parties and jurors must travel hundreds of miles because there is no full-service federal courthouse in the northern part of the state where the country’s biggest reservation is located. One witness in a federal trial, for example, had to drive nearly 10 hours round-trip for about 10 minutes of testimony to authenticate a document, Humetewa said.

“It sort of creates this invisible judicial system for the community that we are meant to serve,” said Humetewa, an enrolled member of the Hopi Tribe in northeastern Arizona.

The facilities shortcoming in Flagstaff is only one challenge facing federal judges in Arizona, where caseloads have risen along with a growing population. The judiciary is looking to Washington for help in adding judges and replacing the northern courthouse.

‘Like Molasses’

Arizona’s 13 U.S. district court judges have had some of the highest caseloads and felony filings per judge in the country in recent years due to reasons shared with other border states and unique here.

The state’s southern border with Mexico leads to a substantial volume of immigration and entry-related cases. In addition, more than a quarter of the state is tribal land, which means many crimes there fall under the jurisdiction of federal courts.

Covid-19 closures at the courthouses in Phoenix and Tucson only exacerbated backlogs, said Alfred Urbina, attorney general for the Pascua Yaqui Tribe with a reservation near Tucson.

“Instead of moving at a slow clip, it’s like molasses now,” Urbina said.

The high workload impacts how cases proceed. Most parties request oral arguments, for instance, but judges can’t accommodate all of them. Judges are operating like “the kid with her finger in the hole in the dike,” Humetewa said.

“I can tell you, it’s a terrible feeling because when you get down to it, each case represents someone, some person’s injury or claim,” she said. “And due to our lack of judges, these people wait years to know what’s going to happen in their case.”

‘Grand Bargain’

With one of the nation’s highest rates of population growth, Arizona is among states where the judiciary has asked Congress to add more district court judges nationwide. The proposal last year includes four new judgeships for Arizona and making one temporary position permanent.

But it’s been more than 30 years since major legislation was approved to add judges. Lawmakers generally agree on the nationwide need but dispute how and when the positions should be added. Action on at least two bills pending in Congress to add between 77 to 203 judges in districts across the country is uncertain.

“We need some sort of grand bargain,” Troy Eid, president of the Navajo Nation Bar Association, said.

Arizona also faces constraints with its court facilities. Most proceedings take place in courthouses in Phoenix and Tucson. A magistrate judge who has limited authority sits in Flagstaff.

A judge who wants to hold a trial in Flagstaff on a northern Arizona matter must coordinate with the magistrate judge to make sure the courtroom is available. The process requires the judge and a few staff to temporarily relocate from Phoenix, Humetewa said.

Options are limited. There’s no space for a grand jury at the Flagstaff courthouse and the jury box is too small for criminal jury trials, particularly with pandemic-related distancing requirements, Humetewa said.

Jurors drawn from northern Arizona may face unpaved roads and severe weather during the long drive to Phoenix, which makes it hard to seat a representative jury, Humetewa said.

Increasing court access in Flagstaff would help address those issues, said Jon Sands, federal public defender for the district. The Navajo Nation alone is bigger than West Virginia, with most of that land in Arizona.

“If you said there were no federal judges in West Virginia, you would be amazed,” Sands said.

There are “ongoing discussions” between the Judiciary and the General Services Administration about resolving space constraints at court facilities, according to the Administrative Office of the U.S. Courts. For Flagstaff, a GSA spokesperson said the agency is finalizing lease requirements to replace the existing space.

Beyond Judges

The impact of federal resources begins before a crime progresses to a court case. Investigations into federal felony crimes can be delayed in places like the Navajo Nation, which impacts prosecution decisions, Humetewa told Congress last year.

Urbina said immigration and border-related enforcement in Arizona leaves limited resources for tribal areas when it comes to violent crimes. Fewer cases are investigated and referred while more are declined. Federal investigators and courts are located off reservations, and few federal judges have lived or worked there, he said.

“It’s a little odd to have a justice system that’s disconnected from your community,” Urbina said.

It’s hard to expect major improvements by adjusting the existing system, said Eid, who argues tribes should be able to opt out of federal jurisdiction. The federal government, though, can still do more within the structure, he said.

“It has to do with breaking out each part of the justice process and then thinking about how is it staffed,” Eid said.

—With Madison Alder

To contact the reporter on this story: Brenna Goth in Phoenix at bgoth@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com

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