Justice is the Business of Government: State and Local Government Branch Roles in Delivering Justice

Vol. 36 No. 1

By

Edward W. Madeira Jr. is chair emeritus and senior counsel in the Philadelphia office of Pepper Hamilton LLP.

In August 2007, the American Bar Association (ABA) House of Delegates approved several principles in herent in the decisional and institutional independence of fair and impartial courts. These included recognition that our independent judiciary “must have adequate resources including a budget that provides for adequate facilities and equipment, resources, security and just compensation for judges.” ABA, Principles on Judicial Independence and Fair and Impartial Courts (Aug. 2007).

Emphasis on the need for adequate resources, while not new, is especially timely and the focus of a recent edi torial in Judicature that concluded: “We need to begin a national discussion on how best to assure adequate and stable financing of courts, particularly in times of economic recession.” An Impending Crisis in State Court Funding, 92 Judicature (Sept./Oct. 2008) . Across the country “state budgets are hemorrhaging” and the budget cuts “are leading too many courts to eliminate programs that in the long run will make courts thrive.” Id. The ingredients for this crisis have been accumulating over the last two decades, as year after year state and local court budgets have been reduced while more and more challenges have been placed before the courts.

Indeed, almost twenty years have passed since the ABA emphasized that “[t]he capacity of the court system to perform its duties is determined by the resources available to it.” ABA , Standards of Judicial Administration (1990). In 1993, a roundtable of experts warned that “our justice system is being asked to assume too many functions that it is not well equipped to carry out, particularly to resolve social problems that it has been unable to ameliorate.” Justice Denied: Underfunding of the Courts (Roscoe Pound Foundation, Barbara Wolfson ed., 1993).

Bearing out such long-standing concerns, cuts in Florida reduced the budget by 10 percent for 2008Р09, and additional reductions are in sight. The assistant commissioner of the Florida Department of Law Enforcement recently expressed his concern: “We lost all fat six to ten years ago . . . then they cut connective tissue, now they’re lopping off arms and legs.” Gary Blankenship, Criminal Law Section Sets Out to Find Court Budget Solutions , Fla. B. News, Aug. 15, 2008.

 

Getting Government to Ensure Justice

Addressing the Virginia Constitutional Convention in 1830, Chief Justice John Marshall noted that “the Judicial Department comes home in its effect to every man’s fireside; it passes on his property, his reputation, his life, his all. ” Jean Edward Smith, John Marshall: Definer of a Nation 505 (1996) (emphasis added). Marshall’s prescient observations still resonate today. The complexities of the challenges facing the state trial courtsСespecially in the criminal, family, and juvenile areasСgo well beyond the traditional role and training of a judge as an impartial arbiter or umpire.

To administer justice that meets the needs and expectations of the citizens, adequate resources are required. But where will they come from when each state and county are financially strapped and faced with their own financial crises? This brings to mind the Chinese definition of “crisis” as a combination of danger and opportunity.The danger is apparent. The opportunityСthrough increased, constructive interbranch relationsСis to develop coordinated and effective responses to the current challenges.

Another famous figure from the time our nation was founded, James Madison, wisely observed that “[j]ustice is the end of government. It is the end of civil society. It has ever been and will be pursued until it be obtained, or liberty be lost in the pursuit.” The Federalist No. 52. With just that spirit in mind, at the outset of his term as ABA president, H. Thomas Wells Jr. appointed the ABA Presidential Commission on Fair and Impartial Courts to plan and implement a national summit conference entitled “Justice Is the Business of Government: The Critical Role of Fair and Impartial Courts,” which will be held May 7Р9, 2009, in Charlotte, North Carolina. Senior Associate Justice Mark D. Martin of the North Carolina Supreme Court and I are honored to have been named as cochairs of this commission. Former Supreme Court Justice Sandra Day O’Connor will serve as honorary chair and will deliver the keynote address.

As I write this, more than twenty-five state chief justices have agreed to lead multibranch state delegations to the conference, and more state delegations are anticipated. Leaders of national organizations involved in state and localКjustice systemsКintend to send delegates, as do various bar leaders.

Justice and its administration affect all aspects of state and local government. The conference will explore the respective roles and responsibilities of each branch of government, incorporating the results of newly developed research on how the public assigns responsibilities for particular aspects of the justice system to each governmental branch. Understanding public perceptions will spur discussion of how to plan for, find, and allocate resources to respond to these expectations.

 

An Agenda for Change

Areas for discussion by conference delegates will include (1) the critical and changing role of the courts; (2) the costs of law and order; (3) the separation of powers; (4) specific examples of progress; and last, but surely not least; (5) the conference goals and recommendations for future action. A substantial portion of the summit will involve “speak up” sessions where smaller diversified groups of delegates can exchange ideas and develop recommendations.

Let us briefly investigate each of these subjects in turn.

The critical and changing role of the courts. As pointed out by the Commission on the Future of Maryland, our court system “must deal with new and troublesome problems, involving much more than increased caseloads and limited resources. While these problems cannot be solved, they must be faced. Change for the sake of change alone is meaningless, but change to meet the needs of our citizens in the future is truly worthwhile.” Comm’n on the Future of Maryland Courts, Final Report iii (Dec. 15, 1996).

The increasing loads that have been placed on state courts during the past two decades have led courts to change and adapt to new realities. These changes have affected all areas of law and court administration. Of particular interest, in part because of the potential for substantial savings, are “problem-solving” courts or “special dockets.”


Problem-solving courts have emerged on the scene as an alternative to traditional courts . . . . [They] originated not in academia but from the efforts of “practical, creative, and intuitive judges and court personnel, grappling to find an alternative to revolving door justice, especially as dispensed to drug-addicted defendants.”

Victor Flango, Problem-Solving Courts under a Different Lens, in A Closer Look at Families and Problem-Solving Courts (quoting David B. Wexler, Therapeutic Jurisprudence: It’s Not Just for Problem-Solving Courts and Calendars Anymore, in Future Trends in State Courts 2004 (National Center for State Courts 2004)).

These special dockets in essence change the role of the court from passive supervision of the adversarial dispute resolution process to one of personal engagement in a team approach with prosecutors, defense counsel, treatment providers, and correctional staff working toward a nonadversarial resolution of a shared problem.

Experience with such special dockets in the criminal, family, and juvenile courts will be described for and discussed by the delegates regarding their potential for both cost savings and for growth. Do such dockets present a new approach to “smart justice,” with savings for the taxpayer?

The costs of law and order. The high costs and interconnectivity of our criminal justice systems are slated to be significant subjects of discussion at the conference. The New York Times looked to California to describe the “mass imprisonment philosophy that has packed prisons and sent corrections through the roof around the country.” Editorial, The California Prison Disaster, N.Y. Times, Oct. 27, 2008, at A22. California is not alone. In many states, the cost of corrections is the second or third highest budget line item. In Pennsylvania, state cabinet officials faced with increasing corrections costs have encouraged the courts to work with prosecutors and public defenders to develop diversionary “treatment” courts to ease the burdens on jails and prisons. The budgetary shortfalls affecting Florida merely emphasize the challenges other states face. Aspirations for law and order are accompanied by substantial costs. Can interbranch cooperation and initiatives provide a substantial reduction in these costs?

The separation of powers: “Separate but not separatists.” At both the state and local levels, have different understandings about the separation of powers impeded cooperation among the governmental branches, cooperation that might have prevented the current crises? What are the appropriate and inappropriate forms of interbranch communications? How can we implement an improved, constructive interbranch discussion leading to a coordinated approach for the future?

These issues, as well as discussions of accountability by the courts, are all appropriate aspects of seeking resources. It is likewise important to consider how to measure and improve judicial efficiency and effectiveness when seeking court resources in these times of limited funding. Our expert conference panelists will stimulate dialogue among the delegates about these issues.

The battle for resource allocation is a political one. In state capitals, the judiciary often lacks a political champion to make its case. Should judges develop advocates in state capitals and with county commissioners? If so, how can they do that without creating expectations that obligations will be repaid or perceptions that such obligations exist? Further, are there circumstances where courts can exercise their “inherent powers” effectively, without disrupting interbranch relations?

Panelists will discuss how the good, the bad, and the ugly in judicial relationships with executive and legislative branches have impacted the courtsСand the developing recognition that a different approach is needed. The conference will provide a safe haven for representatives of each branch to express their views and their frustrations.

Specific examples of progress. New paradigms that work well have emerged across the country, at both state and local levels; we have real world examples of jurisdictions where the three branches have learned to work together with a common understanding of the role and responsibilities of each. Panelists will share these examples and highlight the valuable lessons that can be gained therefrom.

Goals and future action. Finally, we will address the multiple goals for the conference. Certainly, a primary objective is to prompt discussion at the state and county levels of the respective roles and responsibilities of the branches of government whose constitutional powers may be separate but who are charged with the common obligation of achieving “justice for all.” Justice in these “local” courts, of course, must be a subject of national concern, and we need to address these issues across the land. A further goal is to provide the architecture for ongoing dialogue that will enable those charged with the common obligation of establishing and administering justice to accomplish that mission.

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