As uncertainty about the federal budget looms and the possibility of a government closure of all nonessential services becomes more, well, possible, many lawyers have wondered what this might mean at the federal courts.
While many things about a shutdown are still unclear, we have been in contact with the U.S. District Court of the District of Colorado and learned that the courts are given the discretion to identify “essential functions” that must be performed by staff in order to address the constitutional duty of the court to resolve cases, and that legislative or executive review of the courts’ determination is not required.
Along those lines, Chief Judge Wiley Y. Daniel of the U.S. District Court of the District of Colorado has issued General Order 2011-3, which states:
In accord with the Anti-Deficiency Act, 31 U.S.C., §§ 1341 and 1342 and The Guide to Judiciary Policy, Vol. 13, Ch.2, § 220.30, it is now
ORDERED that the functions performed by all employees and judicial officers of this court and the staffs of the judicial officers of this court are determined to be necessary and essential to address the court’s constitutional duty to hear and decide cases without interruption.
Unless so modified or revoked by the chief judge, this order shall remain in effect throughout the current fiscal year.
UPDATE: The United States Bankruptcy Court for the District of Colorado has indicated it has a similar order in the works.