Crisis in the courts: Bars take steps to stave off judicial funding cuts

Volume 34 Number 5

By

Florida Bar President Jesse Diner spent the first six weeks of 2010 criss-crossing the state to plead with a dozen newspaper editorial boards.

Don Philips, government relations counsel for the Connecticut Bar Association, drove a well-worn, 12-mile path between bar headquarters and the state capitol this winter to meet with legislators.

The State Bar of Michigan has spent the last several months creating a Facebook page and blogs to get news and information to its members and the public.

These are just some of the stories emerging from bar associations large and small, unified and voluntary, as they stage lobbying and informational blitzes across the country to preserve funding for state and local judiciaries. Deep cuts in spending for the judiciary over the last year have triggered layoffs, salary cuts, deferred maintenance, and court closures nationwide, with even deeper cuts on the horizon as states grapple with a weak economy that contin-ues to widen budget gaps.

“One would hope that the current cutbacks are temporary measures, but it’s clear that the state budgets are going to be bad for years to come,” Christine Durham, Utah chief justice and president of the Conference of Chief Justices, told the ABA House of Delegates at its Midyear Meeting in February. “State courts are recognizing that the severity of this economic crisis may well mean that things are never going to return to ‘normal.’ ”

It is a sentiment shared by bar leaders across the country, spurring them into action.

The efforts of state and local bars—along with groups on the national level such as the ABA, the National Center for State Courts, and the Conference of Chief Justices—underscore the importance of judicial funding and the dire circumstances confronting many courts.

Such support is crucial, bar executives and observers say, not only to keep the courts accessible and to keep peo-ple employed, but also to ensure that state judiciaries maintain their role as a constitutional branch of government, and not just as another state or county agency. Lobbying, public outreach, strong bench-bar partnering, task force research, and volunteering are all part of the intensifying drive to maintain adequate court funding at what could be a critical time in state judiciary history.

 

Not normal times

The critical state of judicial funding and its impact on bar associations became evident very quickly to Bill Weisen-berg at the Midyear Meeting of the National Association of Bar Executives, the National Conference of Bar Presi-dents, and the National Conference of Bar Foundations, also in February. As chair of the ABA Standing Committee on Judicial Independence, he moderated a packed panel discussion and workshop on court funding.

“I’ve never seen so many people sitting up and paying attention, just focusing on what was being said and how important it was,” he recalls. “There is an unparalleled level of attention to this issue.”

A glance at some of the growing statistics gives plenty of reasons to back up that concern. The National Center for State Courts, a clearinghouse for the judiciary, sees the totality of the funding problems throughout the country. By February 2010, the NCSC judicial budget scorecard showed:

 

20 states with hiring freezes

11 states with salary freezes

11 states with court employee furloughs of up to 10 days

five states with salary reductions

four states with periodic court closures

41 state court systems projecting budget shortfalls of 1 to 15 percent

 

The effects on the judiciary vary throughout the country, due in large part to the variability of how the courts are funded and administered, according to Dan Hall, vice president of court consulting services for the NCSC. In some states, courts are wholly funded and/or administered by state government, with most states having a hodgepodge of state, county, and city funding and administration, which can make funding uneven. Some states and counties have been harder hit than others by the economy—for example, the high rates of foreclosure in Florida and Nevada.

Every day, news and anecdotes reach the NCSC and Weisenberg, assistant executive director for public affairs at the Ohio State Bar Association. “There are judges taking reduced pay, people who are asking not to be put into a jury pool because they can’t afford the time off from work,” he says. “The economy has had a significant impact on the courts.”

What is potentially even more frightening, Weisenberg and Hall say, is a slew of studies and reports that offer sour predictions for a sluggish economic recovery, with no promise of a return to previous spending levels.

“The trends are pretty ominous,” Hall says. “There are 48 of 50 states facing budget shortfalls [in the coming fis-cal year]. And there’s a feeling that times aren’t going to get better [for courts] in five or six years.”

A report issued in January by the National Governors Association confirms that view, predicting annual revenue shortfalls in many states through 2014, with full recovery not likely until the end of the decade.

Faced with such daunting deficits and grim prospects for an economic turnaround, legislatures and governors have responded with sweeping budget cuts that have included the judiciary (see “A state-by-state look at the crisis,” page 9).

“This court system just cannot sustain any more cuts,” says Diner, issuing an alarm similar to those from other bar leaders, judges, and others connected to the judicial system. “We are in a precarious situation [in Florida]. Our economy relies on real estate revenue and sales tax revenue, and both are being hurt.

“We have a projected $3 billion shortfall that could become $7 or $8 billion—and I just don’t know where they’re going to get the money.”

Echoing Chief Justice Durham, he adds, “These aren’t normal times.”

 

Hurting the public

What troubles many bar leaders about the budget cuts—aside from the job losses and slowdown in court activities—is the increasing belief that the courts are becoming less safe, less accessible to the poor, and less likely to be treated as a constitutionally equal branch of government.

A report released last December by the U.S. Department of Justice found that violent threats against federal judges and court personnel more than doubled in five years, going from 592 in 2003 to 1,278 in 2008. More re-cently, state budget cuts in Maine have led to the elimination of manned, operational metal detectors at several courts, while in Alabama, Jefferson County Domestic Relations Court Judge Suzanne Childers keeps a .38-caliber gun at her side since two courtroom deputies were laid off because of budget cutbacks.

Cuts have also forced the elimination of weapons screening at the Yakima County, Wash., courthouse, according to Sal Mungia, president of the Washington State Bar Association. A judge in that county told him, “ ‘We’re just an accident waiting to happen.’ ”

Concern is also growing about how the poor and others who cannot afford lawyers are able to access the justice system. Diner says the Florida Bar is opposed to significant raises in filing and other associated court fees—on the heels of a recent fee raise—fearing that court fees could become too prohibitive. In hard-hit California, for example, filing fees run an average of $300, according to the NCSC, while the national average is $130.

In Iowa, family court, foreclosure, and debt collection cases, which require more court resources, are being de-layed because those resources have been cut, says Jim Carney, legislative counsel for the Iowa State Bar Associa-tion.

In Boston, funding for nonlawyer educational advocates in Juvenile Court was completely eliminated. “It’s left the judges to deal with pro se parents trying to navigate the system,” says Jack Regan, president of the Boston Bar Association. “There is also a large volume of pro se [representation] in family court, which has led to delays and again put judges in a difficult situation, having to explain court procedures.”

The New Hampshire Bar Association was forced to temporarily suspend a pro bono program aimed at helping people through bankruptcy because the backlog of court cases—caused in part by court closures and judiciary cuts—became too great, says Dan Wise, the bar’s communications director. “We’re trying to protect access to jus-tice,” he notes. “Clearly, we’re concerned that it is being hampered.”

As state legislatures and governors muddle through their budget cycles, often discovering revenue shortfalls be-fore the budget year is out, they have responded by ordering or recommending additional spending cuts for virtually all state agencies—including the judiciary. And for many judges, bar associations, and legal services providers, that has become one of the worst aspects of the current economic downturn.

A proposed 5 percent midyear budget cut in Connecticut has left the Connecticut Bar Association lobbying hard to stave it off. “We don’t view the judicial branch as a state agency,” says the CBA’s Philips. “They ought to be treated like a coequal branch of government, not like a state agency.”

Carney agrees, noting that the cuts in Iowa’s judicial branch might be somewhat easier to accept if the other two branches of government were seeing similar cuts—but that has not always happened over the last two years.

Keeping the courts free of legislative and executive budgetary control, Weisenberg says, is key to maintaining ju-dicial independence, which is why his committee has become more involved in state court funding issues. “We need to enhance our relationships with the other branches of government,” he says. “Courts play a vital role in serving the totality of our citizenry.”

Bar leaders like Sal Mungia believe that the judiciary and its supporters—namely, bar associations that can speak for and with them—need to be more vocal in the months and years ahead to get necessary budget dollars.

“The days are gone where we can sit back and say, ‘You have to fund [the judiciary] equally with the legislative and executive branches,’ ” he believes. “We have to work together [with the judiciary] more often.”

 

What about Keller?

The time has come, Mungia and other bar leaders say, for bar associations of all sizes and types to be more vocal in support of judiciary funding at levels that can keep state and local courts safe, accessible, and independent. A good way to do that right now, he says, is through lobbying and discussions with legislators and state and local execu-tives.

“There’s a real need for us as bar leaders to be politically active, both at the state and local level,” he says. “We tell members, ‘Get to know your legislator.’ ”

The voluntary Vermont Bar Association recently played a significant role in helping restore some Probate Court judgeships that were targeted for removal in budget talks, says Bob Paolini, the bar’s executive director. The bar has also spoken out in favor of a more active role for the association in restructuring the state judiciary, which has been subject to layoffs and court closures.

“I’m in the Legislature every day, talking to House members and senators,” Paolini said in between statehouse visits in February. “We represent more than 90 percent of the attorneys [in Vermont]. The bar needs to have a voice, and we’re able to give it to them.”

Members of the Boston and Connecticut bars have been heavily involved in contacting their state legislators, ask-ing them to avoid judicial budget cuts. “We’ve put adequate judicial branch funding right at the top of our agenda,” Philips notes. “We need to be a very loud voice in support of our judiciary.”

Still, many mandatory state bar associations—often considered a part of state agencies, themselves—are cautious about lobbying and speaking out on court funding, citing the restrictions of Keller, which limits the use of member dues for lobbying.

“We’re just trying to show the human and social impacts of possibly denying access to justice,” the New Hamp-shire bar’s Wise says. “As a mandatory bar, we have to be cautious about how we do things.”

Florida’s Diner says he is comfortable speaking out on the funding shortfalls, noting that Keller allows dues to be used to improve the quality of legal services in the state. The current climate of budget cutting, he explains, threat-ens that quality.

Diner and other bar leaders also expect to remain active by taking a closer public examination of the funding problems and working with the judiciary and other agencies to find and recommend solutions. Diner cites a 2009 report commissioned by the bar as a turning point in judicial funding.

The report showed how a backlog of more than 330,000 civil cases—a backlog brought on by state budget cuts—was costing the state more than $10 billion a year and adversely affecting more than 120,000 jobs. Soon after the report was issued, the Florida Legislature created a trust fund to help fund the courts.

Another group, the ISBA Task Force for the Delivery of Enhanced Legal Services Throughout Iowa, issued a re-port in December, identifying ways that legal services in that state could be improved despite budget constraints. The task force hired a consultant, surveyed nearly 1,500 ISBA members, and set the stage for more recommenda-tions later this year.

The State Bar of Michigan has assembled a task force charged with assessing the future of Michigan’s courts and exploring how best to obtain adequate court funding. Public recommendations are expected later this year, according to Janet Welch, the bar’s executive director. “We want to help educate the public and decision makers about what’s happening to the judicial branch,” she adds.

Michigan is also one of 10 states—along with Florida, New Hampshire, Alabama and Vermont—working with the National Center for State Courts on programs to “reengineer” their court systems. The effort involves evaluating and adjusting court operations, such as court structure and the use of technology, in order to improve processes and save money while increasing efficiency and maintaining service levels to the public, according to the NCSC.

The NCSC’s Hall hopes the effort will lead to a compilation of best practices that can be shared across all court systems, as well as developing a set of principles to help all three branches of government determine the best way to adequately fund and operate courts in their states. The center is also working with the ABA’s Judicial Division and Standing Committee on Judicial Independence on the project.

“It’s like grieving,” Hall says. “You eventually realize this isn’t going to get better. Now, we have to do some-thing about it.”

 

The long haul

Hall and Weisenberg say that state and local bars need to continue their work on educating lawmakers and the public about the need for an adequately funded and effective judiciary. “This is not a sprint,” Weisenberg cautions. “It’s a marathon.”

The Multnomah (Ore.) Bar Association and the New Hampshire Bar Association expect to continue their efforts online with dedicated Web sites: www.protectoregoncourts.org and www.nhbar.org/publications/whywecare.asp. Each site details some of the court cuts that have taken place or are expected, and how those cuts affect the public.

“It’s there to try and help people understand the third branch of government,” says Judy A.C. Edwards, executive director of the Multnomah bar. “We’re like a flea: We just keep biting and biting [at lawmakers and the public]. We won’t go away.”

Bar leaders say pro bono work is also part of their push to help the court, with many bars finding that participa-tion is increasing.

To many bar leaders, the future of court systems throughout the country is on the line.

“We’re up for this battle,” says Philips. Diner agrees.

“We’re always going to fight for a fair, adequate, and impartial justice system,” he says. “Right now, it’s at the top of our agenda.”

 

A state-by-state look at the crisis

 

Just how bad is the current judicial funding crisis?

Jim Carney, a Des Moines, Iowa, lawyer, the Iowa State Bar Association’s legislative counsel, and a past chair of NABE’s Government Relations Section, offers some perspective.

“I have been representing the Iowa State Bar Association since 1975, so I guess that means about 35 years. In that entire period of time, I’ve never seen a budget situation such as this faced here in Iowa, and as is being faced all over the country,” he says. “We are furloughing both judges and judicial branch employees. We additionally laid off a substantial number of employees, including court reporters.”

After five furlough days last year in Iowa state courts, 10 furlough days were scheduled for this fiscal year to cope with a 7 percent budget cut. Also in this fiscal year, 105 court employees were laid off, 73 unfilled positions were eliminated, and 58 employees had their hours reduced.

The cutbacks and resulting court delays come at a time when domestic violence, foreclosure, debt collection, and small claims court filings have all been on the rise for the last several years in Iowa. It was enough to prompt the state’s chief justice, Marsha Ternus, to say earlier this year that the state is “rationing Iowans’ access to justice.”

The funding situation in Iowa is not unique. Among the many other states facing budget dilemmas:

| As many as 600 courts jobs in Alabama are in line to be cut under the governor’s proposed budget—with 200 positions needing to be cut immediately when the budget year begins. Such cuts would likely severely delay or stop many jury trials. | At least three courthouses and six law libraries in Connecticut are slated to close under a proposed across-the-board 5 percent budget cut for all state agencies. Previous budget cuts required judges and other court personnel to take three furlough days in a year. | Nearly 300 court support positions in Florida were lost in 2008 and 2009 after $49 million in judicial branch budget cuts. Funding has stabilized thanks to a new dedicated courts trust fund, but money in that fund can be tapped for other state expenditures. Florida’s average of 4.5 trial judges per 100,000 people is nearly 40 percent lower than the national average of 7.3 per 100,000. | Three furlough days were scheduled for April and May in New Hampshire, requiring closure of courts through-out the state for the first time. Plans were also being made for more closures after the state’s new fiscal year be-gins July 1. The future of four district courts is also in doubt due to lack of state funding. | While a move to cut the number of state probate judges in Vermont from 14 to five appears to have stalled, some losses are expected before a budget passes. More than 900 court hours were lost last year after some full-day and half-day court closures, because of state budget cuts. Similar court closures are also planned this year. Judges with upcoming civil trials in February were scheduling them to begin in October. | State funding of courts in Washington state was cut by 4 percent last year, but in a state where the counties pro-vide most of the funding, there have been layoffs and furloughs of court personnel. Snohomish County laid off 10 percent of its prosecutors, 20 prosecutors lost their positions in King County in Seattle, Pierce County has two unfilled judgeships, and rural Yakima County is looking at the prospect of no civil trials this year.

 

And what is so troubling to many people in these states and others is the fear of what more is to come.

“This is a long-term situation,” says Dan Hall, vice president of court consulting services for the National Center for State Courts. “When the question was asked recently before the Conference of Chief Justices, ‘When are things going to get better?’ a lot of them said, ‘We don’t know. We’re hoping.’ ”

 

—RJD

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