A halt on federal courthouse construction spurs review

From the The Recorder, February 2, 2005

A two-year freeze on federal courthouse construction has done more than leave judges at 42 aging courthouses around the country out in the cold for a couple of years.

The September construction moratorium initiated a re-examination of some of the most sacred cows held by the nation's judicial Brahmins.

To stave off the ever-worsening annual budget squeeze, a committee of the Judicial Conference of the United States, the court's policy-making arm, may propose smaller courtrooms and judicial chambers to save money. Even sharing courtrooms is on the table.

In addition, the committee will examine downsizing clerks' offices and court libraries in the age of electronic filing. And senior judges have not been spared. The length of time that senior judges may keep their own courtrooms, which is now set at 10 years, could be curtailed.

"We are taking a hard look to see if we really do need to bring so many construction projects on line given how much we are paying in rent," said Judge Jane Roth of the Third Circuit U.S. Court of Appeals in Wilmington, Del., who is leader of the Security and Facilities Committee.

Currently, 22 percent of the judiciary's budget goes to pay rent to the General Services Administration, or about $900 million. Rent has been rising 8 percent a year, while the total court budget has risen roughly 4 percent annually, according to Fifth Circuit Chief Judge Carolyn Dineen King in Houston, who is head of the executive committee of the judicial conference.

Courts have been making up shortfalls in recent years by firing staff, which meant 1,350 jobs lost, or 6 percent of the judiciary staff in fiscal year 2004. "Rents were forcing cuts in staff, but we can't cut any more," said King.

Frustrating King and the other judges is the rent calculation. It includes 25-year amortization of the original cost of construction. Even though a courthouse may be used 50 or more years, the rent does not stop. "We pay for a building two or three times over," King said. The judges are pushing GSA to negotiate lower rents.

GSA expects to respond in writing to the judges as early as this week, according to Steve Peters, a GSA space pricing specialist in Washington, D.C.

Security has become a major cause of increased expense since the 1995 bombing of the federal building in Oklahoma City. In addition, 28 federal mandates ranging from stronger structural material to local prevailing-wage payments - and even use of metric-sized pipes - have pushed up costs, according to a 2003 congressional report.

The average construction cost in the late 1990s was $175 a square foot, but today that has jumped much faster than inflation, to as much as $250 per square foot, the congressional report states.

Meanwhile, all design costs appear to be fair game for the ax, according to Roth, who will present some preliminary cost-containment recommendations from her security and facilities committee to the March meeting of the Judicial Conference. Final proposals will be submitted in September.

This has left some courts holding expensive architectural plans that may be heavily revised, while other courts put groundbreaking dates on hold.

Seven projects with money to begin design, including San Jose's, were ordered to stop. The others are Harrisburg, Pa.; Toledo, Ohio; Charlotte, N.C.; Greenville, S.C.; San Antonio; and Anniston, Ala.

Buffalo, N.Y.'s $100 million downtown courthouse, set to start construction in 2004, has been stopped twice for lack of funds. It ranks first on the list of the most urgently needed of the stalled projects, according to Chief Judge Richard Arcara of the Western District of New York.

Arcara expressed his disappointment at the new delay. "We were hoping for construction funding in fiscal year 2006, but that is not going to happen," he said.

Buffalo's current court, which is less than a mile from the Canadian border, has prisoners sharing elevators with the public and court personnel. The court survived what Arcara called a "security nightmare" in the Lackawanna Six case in 2003.

Six Yemeni-Americans charged with providing material support to al-Qaida had to be brought into court through the front doors because the courthouse lacks secure underground transport for defendants.

"The whole building was surrounded by Buffalo police, New York state police and U.S. marshals. It was like an armed camp," he said.

Arcara still may be among the lucky few. His building plans are 99 percent complete, and the court has $15 million to go forward with purchase of property for the new building.

Eight projects in the midst of design were exempt from the moratorium and will go on with designs, but only if they scale back the project scope. Even then they have no commitment that construction funds will be requested from Congress. They are Norfolk, Va.; Austin, Texas; Rockford, Ill.; Salt Lake City; Cedar Rapids, Iowa; Jackson, Miss.; Nashville, Tenn.; and Fort Pierce, Fla. Four projects, designated emergencies, will go ahead, but even they didn't escape the budget ax.

The granddaddy of the projects is the largest in the nation: a $480 million, 22-story courthouse in Los Angeles. Though it held the record on the emergency list for 10 years, Congress ordered the plan scaled back by $80 million, cutting 300,000 square feet, and dropping it from 22 to 16 stories, according to district court architect Allen Leslein.

"It is nonsense," said U.S. District Judge Terry Hatter of the Central District of California, the former chief judge and for years a champion of the new courthouse. "We're the busiest court in the nation," he said.

Hatter fumed at the plan that will continue the existing problem of splitting judges between two courthouses a half-mile apart, with magistrates in one and judges in the other. It wastes money on duplicate clerks' offices and double security staffs, he said. Ironically, to upgrade one of the two existing courthouses may cost $100 million, "which is $20 million more than we need to put them all in one court," Hatter said.

Said Leslein, "If we had known about the downsizing, we would not have chosen the site we purchased."

Los Angeles and three other courts rated as emergencies because they are "flat out of space" escaped the moratorium, said King. The others include Las Cruces, N.M.; El Paso, Texas; and San Diego.

Judge Michael Hogan of Eugene, Ore., counts himself among the lucky few. His building is six months into a 24-month construction schedule and will be completed. He took a more philosophical view.

"I've been around 31 years and these things are cyclical," he said. "I just hope we don't select a solution that puts us into one courthouse that looks the same as the next," he said.