Chief Justice Cites Case Backlogs, Bench Vacancies : Burger Urges Fines for Lawyers Filing Frivolous Suits

Chief Justice Warren E. Burger, citing a growing “judicial deficit” of case backlogs, urged federal judges Sunday to impose fines and other penalties against attorneys who bring frivolous lawsuits to court.

“No one wishes to suppress hard-fought advocacy,” Burger said in his annual year-end report on the judiciary. “But a line needs to be drawn between fair blows and fouls; zealous representation is our ideal, not dilatory and abusive gamesmanship.”

“The time has come to penalize those few lawyers and litigants who treat the judicial system as an arena for a sporting contest . . .” he said.

The chief justice also said that he has asked President Reagan and the Senate to move faster in filling vacancies on the federal bench, to help reduce the rising “judicial deficit,” caused by increased caseloads and a shortage of judges.

“Federal judges are working longer hours and more days than ever before, but, like Alice in Wonderland, they cannot run fast enough even to stay in the same place,” he said.

In the federal district courts, the number of civil suits filed rose 5% and the number of criminal cases grew 7% in the last year, Burger reported. The civil backlog increased 2% and the criminal backlog rose 12% in the district courts, while the backlog in the federal courts of appeals increased 9%.

Burger noted that 85 new judgeships were created by Congress last year, but that because of delays in filling those positions and vacancies in other positions, there are still 97 vacancies in the 743-member federal district and appellate judiciary.

Earlier this year, partisan disputes held up Senate confirmation of many of the Administration’s nominees to the federal bench. In December, the logjam was broken and 19 pending nominations were approved, under an agreement that will give Democrats on the Senate Judiciary Committee more time to investigate future nominations.

Burger, an outspoken critic of unwarranted lawsuits, reported that in the last two years, federal judges have imposed sanctions on attorneys and litigants in about 100 such cases.

Under federal court rules, judges may impose fines or suspensions on attorneys who bring frivolous suits, and may require a lawyer and his client to pay the other party’s attorney fees and court costs. These sanctions may be imposed at the request of a party in the suit or on the judge’s own initiative.

The rules were strengthened in 1983, in response to concern over growing caseloads. Now, when filing suits, attorneys must sign a statement saying that they believe the suit is “well-grounded and warranted” and that it is not being brought to harass the other side, unnecessarily delay the case or simply to generate legal fees.

Burger has repeatedly urged his colleagues on the Supreme Court to impose penalties on lawyers and litigants who bring unwarranted appeals to the high court. But there is disagreement among the justices over how to determine when sanctions should be imposed and whether they would unfairly discourage legitimate appeals to the court.

Last month, the justices voted 5 to 4 to impose a $1,000 penalty against an Indiana man who came to the court challenging the constitutionality of paper currency. Justice William J. Brennan Jr., in a dissent joined by Justices Thurgood Marshall and John Paul Stevens, said the court rule under which the sanctions were imposed was “arbitrary” because it lacked standards for determining what appeals were “frivolous.” Justice Harry A. Blackmun also voted against the penalty.

In his report, Burger also renewed his plea for better pay for federal judges. He said that a recent survey indicated that most of the jurists were under “a great financial strain.” Compensation to federal judges has declined by more than a third in real dollars since 1969, and about 50 judges have resigned during that time, he said.

“Although the nation’s interest may be served by decreasing government spending, Americans are ill served by the folly of inadequate judicial pay,” Burger said.

The chief justice cited a survey in which 80% of the 553 responding judges said they were unable to live on their judicial pay alone and supplemented it with their spouses’ income or other sources, such as speaking engagements.

At present, federal district judges receive $78,700 annually and appellate judges are paid $83,200. The eight associate justices of the Supreme Court receive $104,100 a year, and the chief justice gets $108,400 a year.