Adequate funds and resources for the courts are a legislative/executive responsibility, with the primary source of funds typically represented by general revenue appropriated by the authorities charged with that responsibility. Under our system of justice, courts should not operate based upon fines and costs that are charged to citizens appearing in court as litigants or parties to a case. Such a system diminishes public trust and confidence in a fair, impartial and independent judiciary, which is essential to a free and democratic society.
The ABA House of Delegates adopted Resolution 302 and Resolution 10C, sponsored by the Task Force, in August of 2011 and August 2013 respectively. The latter Resolution, adopting the “Principles for Judicial Administration” [Principles], reflects the work of the National Center for State Courts, and the adoption of the Principles by the Conference of Chief Justices and Conference of State Court Administrators in July 2012. The Principles are categorized into three subject-matters:
- Budget Development and Management
The following represents an aggregation of “best practices” developed by the Task Force in concert with the NCSC. It is intended to help guide State Bar Associations and others to better understand the Principles and to encourage the incorporation of these concepts in the management of the courts throughout the United States.
The Principles state that “effective court governance requires a well-defined governance structure for policy formulation and administration for the entire court system.” A comprehensive structural framework is essential for effective and efficient operating of court systems.
Some of the best practices include:
- Utah, which has a unified, state-funded system. A constitutionally created Judicial Council adopts rules for the administration of the courts, and the Chief Justice serves as the chief administrative officer of the courts.
- Minnesota, which has a unified, state-funded system; the Judicial Council is statutorily created.
- Washington State, which has a decentralized, locally funded system that is governed by a Board for Judicial Administration that is charged with providing effective leadership to the state courts and developing policy to enhance the administration of the courts.
The Principles suggest that the position of Chief Justice requires longevity in order to implement effective management initiatives and develop sustained relationships with legislative and executive branch leaders. A system of short-term rotation of the position of Chief Justice is counter-productive for long-term court budget strategies and planning. In 35 states, the term of the Chief Justice is set by the state Constitution; nine states are set by statute; five states by seniority until retirement or loss of election; and two by rotational seniority for two- and five-year terms, respectively.
Some of the most effective arrangements include:
- Kentucky, where the Justices of the Supreme Court by Constitution elect one of their number to serve as Chief Justice for a term of four years.
- New Hampshire, where the Chief Justice serves for a term of up to five years and shall be the Justice with the most seniority of service on the court who has not served in that capacity.
- Wisconsin, where the Justice having been the longest continuous member of the court shall serve as Chief Justice without rotation.
The Principles and strong court management procedures should be adopted by court rule and policy in each state regardless of whether funds are through a unified state system or local funds.
Some of the better approaches include:
- By constitutional mandate in Alaska (Section 15), Colorado (Section 21), and Vermont (Section 37), the Supreme Court shall make and promulgate rules governing the administration of all courts.
- In New Hampshire, the Chief Justice, with the concurrence of a majority of the Justices, makes rules governing the administration of all courts in the state and the practice and procedures to be followed in all such courts (Section 73-a).
- Arkansas, where the Supreme Court exercises “superintending control” over all the courts and may temporarily assign judges, with their consent, to courts or divisions other than for which they were elected or appointed (Amendment 80).
Budget Development and Management
The establishment of court budget committees or commissions that develop a state and/or local budget based upon core principles would encourage effective management of available resources, reduce redundancies and more efficiently allocate resources throughout the state or local court system.
Some of the approaches used include court budget committees (Florida and Connecticut); single request for appropriation (Colorado and Hawaii); and submission to legislature with no or minimal interference by the governor (Arkansas, Arizona and Utah).
- In Florida, by judicial order, the Trial Court Budget Commission is charged with specific responsibility to establish budgeting and funding policies and procedures consistent with judicial branch plans and policies, directions from the State Supreme Court, and in consideration of input from Supreme Court committees and from the Florida Conference of Circuit Judges and the Florida Conference of County Court Judges. In Connecticut, a Probate Court Budget Committee establishes a compensation plan, staffing levels and miscellaneous office budget for each Probate Court.
- In Colorado, the court administrator, subject to the approval of the Chief Justice, prepares annually a consolidated operating budget for all courts that are part of the judicial department operating budget. In Hawaii, the Chief Justice presents to the legislature a unified budget, six-year program and financial plan, with variances revised by the Chief Justice as appropriate.
- In Arkansas, the budget requests for administration and operation of the judicial branch is submitted directly to the Legislative Council without any recommendation from the governor (b)(2); In Arizona, the judiciary shall not be subject to control of the governor in the preparation and submission of budgets, but shall submit its requests for appropriations for the ensuing fiscal year to the governor for review by the legislature. In Utah, the estimate for the Judicial Department, as certified by the state court administrator, shall be included in the budget without revision, but the governor may make separate recommendations on the estimate (9)(b).
It is recommended that there be constitutional and/or statutory provisions for lump sum budgets submitted by the judiciary directly to the legislature. In 22 states, a governor may amend the judicial budget before submission to the legislature; in 20 states, the governor may comment on judicial budget but submission is directly to legislature; and seven have no gubernatorial review.
In developing judicial budgets, it is important that the judiciary and its leaders have effective working relationships with legislators as well as state and local offices of budget and management. Practices that have demonstrated effectiveness with legislative leaders include such initiatives as a Legislative Orientation program; “ride-along”: experiences with legislators to observe the judicial process; “Hill Days” similar to ABA Day; or Judicial Impact Statements, as done in Ohio.
The court system should have the ability to roll over funds (a percentage of funds) from one funding period to another. This encourages and rewards good management. Approximately 30 states budget for specific projects, such as technology, training, security, facilities and judicial performance evaluation. Typically, funds in these special categories are allowed to be rolled over across funding periods.
Many states, such as Utah, Minnesota, Oregon, Arizona, Louisiana and Michigan, use a centralized budget development process based upon core principles of effectiveness, efficiency, metrics and performance standards. Frequently, this is through a single-bill budgeting process whereby the judiciary’s budget is processed as a separate piece of legislation or attached to the legislative appropriations bill. Ohio, for examples, processes the transportation budget as a separate bill. States should explore whether any similar instruments of government are processed separately pursuant to either constitutional or statutory authority. Eleven states have a separate judicial budget bill or a judicial budget attached to the Legislative appropriation bill and handled as a “branch” rather than an “agency.”
- In South Dakota, the appropriations bill includes four lines: State Bar Personal Services, State Bar Operating Expenses, Unified Judicial System Personal Services, and Unified Judicial System Operating Expenses.
- In Oklahoma, the lump appropriation is based on court-level. The Court of Criminal Appeals, as a co-equal court of last resort, handles its own appropriations while the other three levels (Supreme Court, Court of Civil Appeals, District Court) are directed to the Supreme Court for administration (see for example SB 1975 of 2011).
- In Kentucky, the judicial branch budget is divided by five units, with the bulk (more than 70 percent) allocated simply to “Court Operations & Administration” and the state's Judicial Retirement System (Volume I — Part D).
- In Louisiana, appropriations for the judiciary are handed as a separate bill that includes funds for Supreme Court, Courts of Appeal, District Courts, Criminal District Court of Orleans Parish and other courts.
Various states employ performance standards, and often leave it to the courts to determine specific standards. There is a mix of metrics and evaluations, with annual reports on the judiciary including detailed analysis of programs and operations tied to performance standards. It is important that the administration of funds be done in accordance with generally accepted financial management practices and with an emphasis on transparency and accountability.
- In Colorado and Washington State, statutes require performance standards but leave it to the courts to determine. Louisiana integrates similar data into the appropriations bill.
- In Utah, Arizona and Michigan, courts have independently developed metrics and evaluations. Utah publishes results online, while Arizona and Florida have provisions for performance audits. The Arizona state auditor conducts a performance audit, limiting it to the administration and operation of the Supreme Court and to those programs and funds that are administered by the Supreme Court.
- In Florida, the internal audit is conducted by the Office of Inspector General.