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Vol. 28, No. 1

Justice at stake? Bars battle state budget cuts

by Robert J. Derocher

Arizona—The State Law Library in Phoenix has been closed, its materials ordered to go to law schools and superior courts statewide.

Massachusetts—Regular shortages of guards, interpreters, and court reporters have periodically shut court sessions.

California—Night courts are being eliminated along with family law facilitators.

Oregon—Courts are in session only four days a week, repeat misdemeanor violators are going unprosecuted, and dispirited public defenders are leaving the field in some cases.

“The [state budget] problem is real, and I do think the bar has a very important role to play,” Renee Radcliff, a member of the King County Bar Association and a former Washington state legislator told bar leaders at the NABE/NBCP/NCBF Midyear Meeting in Seattle in February. “A speedy trial is certainly not happening right now in my county.”

There was no disagreement from the leaders at the full-house meeting, and the unfolding events from states and localities nationwide since February illustrate the harsh reality of state budget cuts. A combination of state cuts, unpredictable federal aid, and a feeble economy has put the squeeze on legal services, particularly programs that emphasize access to justice and law-related education. Layoffs and hiring freezes have also thrown many court calendars into disarray.

As Radcliff suggested, many state and local bar associations—as well as foundations and the groups’ individual members—are stepping up to play a role. From lobbying to pro bono work and education campaigns, bars and foundations are taking a variety of approaches to publicizing the impact of the budget woes, both on the public and on lawyers.

While there have been some successes, fears of continued budget problems in the months and years ahead have many bar leaders thinking that their efforts to preserve valuable legal services and programs in their communities will continue year-round. They hope a campaign of communication and cooperation will help make lawmakers and the public more aware of potential problems and the need to avert them.

Coast-to-coast cuts

“The problems have been relentless, as most states have run out of the simple, painless options,” Oklahoma state Sen. Angela Monson, president of the National Conference of State Legislatures, said upon issuing a bleak update in April. “Broad cost-cutting measures are being enacted everywhere. Lawmakers are leaving no stone unturned. Services once thought to be sacred are now on the chopping block.”

Monson’s comments came as the NCSL issued a report that said states have been forced to close a cumulative $200 billion budget gap over the last three years. The report also estimated that 41 states are anticipating a cumulative budget gap of $78.4 billion just for fiscal year 2003-04, which began July 1.

Some of these “sacred services” that have been hit by budget cuts include court scheduling and the hiring of judges and public defenders. “Every member of the bar has a stake in this, but so does every member of the public,” says Bill Weisenberg, assistant executive director for public affairs at the Ohio State Bar Association.

While most state bar associations and foundations do not receive funding directly from their states, the budget cuts are affecting their main constituencies—lawyers and the public, Weisenberg says. In Ohio, for example, state funding for the Ohio Center for Law-Related Education—a nonprofit group supported by the state and the state bar—was imperiled earlier this year. Programs such as the state’s largest mock trial program for high school students and an education program for new citizens were in jeopardy.

With a former state attorney general on the bar’s Law-Related Education Committee, the bar mounted a meeting and letter-writing campaign, asking the state legislature, the state’s chief justice, and the attorney general to maintain funding for the center, Weisenberg says. The effort succeeded—for now.

“Lawyers have to keep a vigilant watch on programs,” he adds. “What bar associations can do is to talk to legislative leaders about the importance of such programs.”

‘A real tragedy’ in Oregon

While virtually every state judicial and legal program has been touched by funding shortfalls, one state, Oregon, has been especially hard hit. Among the problems experienced over the last several months:

---Since February, all courts are closed on Friday, although courthouses are open for judges to meet with attorneys in settlement conferences.---Layoffs in district attorneys’ offices, combined with layoffs and forced vacations among public defenders, led to the presentation of no new misdemeanor cases. In thousands of cases, arraignments were pushed back several months to after July 1 (the start of the state’s new fiscal year), or prosecutors eased a growing backload by reducing many felony cases to misdemeanors.

---Civil cases have been slowed because every judge’s judicial assistant must now spend at least a half-day each week entering data—work that was performed by clerks who have been laid off.

---If an attorney wants a court reporter in a civil case, he or she must pay for it.

The cuts in the state’s judicial budget were part of dramatic reductions statewide that have put Oregon lawyers in difficult positions, says Judy Edwards, executive director of the Multnomah County Bar Association, the state’s largest local bar. “How does the judiciary compete for funds when the state is turning disabled people out onto the street?” she asks. Some local stores, she adds, have increased prices because of higher incidences of shoplifting caused by delayed or no prosecution of such crimes.

The budget cuts have demoralized many prosecutors and public defenders, already on the lower end of attorney pay scales, adds Charlie Williamson, president of the Oregon State Bar. “A real tragedy in all this is that they’ve lost a pile of public defenders, people who just left the profession,” he says.

Williamson, Edwards, and others in the state bar and local bars are intensifying their efforts to publicize Oregon’s legal system woes and to work for more funding. The state bar has lobbyists who meet regularly with state legislators, as does the Multnomah bar. Both bars have also regularly given media interviews and have written several op-ed pieces for local newspapers to gather support for increased judicial and legal funding.

Additionally, Williamson and OSB Executive Director Karen Garst have been traveling throughout the state to meet with state and local bar members and community leaders to make them aware of the funding dilemma and what they can do to help. They have also held several “open houses” with local bar members, legislators, and judges. “[Legislators] tend to react more to the people back home,” Williamson says.

Lobbying for the law

Although there are limits on the type and amount of legislative lobbying mandatory bars can do, many associations—both mandatory and voluntary—have taken the same route as the Ohio and Oregon bars and lobbied legislators for help. Such was the case in Wisconsin, where the cuts threatened public defender services and where increases in filing fees means that it “costs hundreds of dollars just to get through the courtroom doors,” says Jenny Boese, senior government relations coordinator for the State Bar of Wisconsin.

Boese says the bar has been meeting with state legislators to urge them to at least use the fees to keep other budget cuts at bay. “We’re active in the legislature to make sure they understand how the justice system works,” she explains. “We’ve done a lot of work to make sure the public defender’s office works.”

Meanwhile, the State Bar of California has joined forces with its state judges to “educate the legislature, educate our membership, and educate the public” on the potentially devastating impact of more than $100 million in proposed cuts to the judicial system, says Jim Herman, the bar’s president. “We’re doing a lot of public outreach and getting word out through the media.”

The California bar has called on local bars to help in the effort by: adopting resolutions opposing deep judicial budget cuts and sending copies to key legislators; working with local judges, asking how they can help; compiling examples of the impact of budget cuts; sending letters of support to legislative leaders; and sending op-ed pieces or letters to the editors of local newspapers and other media outlets.

“We have an ability to rally people together,” says Herman, explaining the state bar’s role. “It’s going to fall back on the bar to roll our sleeves up and help out.”

For the last two years, the Massachusetts Bar Association has held a “Court Lobby Day” at the state supreme court to publicly campaign for adequate funding for the state’s judiciary budget, says Abigail Shaine, the bar’s executive director. This year, more than 200 bar members attended and spoke to legislators about the need to maintain the judicial budget.

While many states have cut or threatened to cut aid that would affect legal services to indigents, lawyers on state payrolls have also been laid off, had their jobs threatened, or seen their pay reduced.

The Massachusetts bar has lent a hand by implementing a program to waive or reduce bar membership fees for public attorneys, Shaine says. The MBA has also provided reduced CLE fees for such attorneys and does not charge for use of Casemaker software it manages in regional trial court libraries.

In Arizona, Ernest Calderón, the immediate past president of the State Bar of Arizona, testified before state legislators on behalf of the state attorney general’s office, which had been slated to lose about 100 attorneys in a cost-cutting move. “A lot of bar members were individually lobbying at the legislature,” Calderón says. “A lot of bar members would be losing jobs. There are a lot of lawyers who depend on [the state].”

It’s not always lobbying at the state bar level that can help tip support for or against a proposal, as the Washoe County Bar Association in Reno, Nev., discovered. When proposed budget cuts threatened local district court funding and endangered critically acclaimed drug and alcohol courts, the bar created a new committee: the Committee to Preserve the Administration of Justice.

The committee brought together lawyers, judges, and the business community in a lobbying campaign to convince state legislators and county commissioners to curb the cuts, says Christine Cendagorta, the bar’s executive director. What followed was an extensive effort that included letter-writing, meetings, and an e-mail blitz that gave bar members an electronic link to lawmakers. The simplicity of a mouse-click and typing was crucial to the campaign, she says.

“[Legislators] had e-mails sitting in front of them as they were voting, and that was very effective,” Cendagorta says. The effort also fit well with the bar’s strategic plan, which stated that the association “wanted to be seen as the go-to source in the community,” she adds.

Judges and foundations join in

Another key in Washoe County’s success, as well as efforts in other localities and states to keep judicial and legal services intact, was the relationship between judges and the bars. While the judiciary and the bar often operate independently of each other, they have come together in a time of need.“The judges came to us and said, ‘We need you to exert some influence. We need to have the bar behind us,’ ” Cendagorta says. “They came to us, and we came through.”

Adds California’s Herman: “This issue has done a lot to bring the bar community together. The courts have been out in front on this and working well with bar leaders.”

Also playing a major role in the joint effort with associations and the judiciary are bar foundations. Not only have some foundations worked against the budget cuts, which often affect the outreach, education, and legal services programs they support, but they’re doing it a time when their own budgets are being squeezed and when more people might be seeking those services.

“We’re going to be doing our best to make sure [legislators] know that funding Legal Aid is like funding Medicaid and Social Security,” says Bob Glaves, executive director of the Chicago Bar Foundation.

Like many states, Illinois’ programs to provide free or low-cost legal services have been hampered by stagnant IOLTA funding. The same economy that has forced the state budget cuts has also reduced returns on IOLTA accounts. To deal with the lackluster IOLTA program, Illinois this year initiated an additional $42 fee to be tacked onto annual attorney registration fees, with all of that money going to the state’s Lawyers Trust Fund for indigent legal services, Glaves says.

Another big contributor to legal services programs is Legal Services Corp. (LSC), which provides federal money to a variety of state programs. Illinois was one of 26 states that faced a $20 million shortfall in LSC contributions because of a redistribution of funding among states based on shifting poverty levels. An intensive lobbying effort helped restore $9.5 million of that funding, although LSC funding still remains far below levels of a few years ago, when efforts were first made to totally eliminate the LSC.

The state and federal budget cuts to legal services programs are somewhat ironic, says Marion Smithberger, executive director of the Columbus Bar Foundation, because “the downturn in the economy puts more pro se people into the mix.”

The tough times are also forcing foundations, the judiciary, and other groups to look more creatively at how to help people. For example, he says, there is discussion in Ohio about creating more “consumer friendly” forms, such as reducing the current 40-page form that must be filled out in a divorce proceeding. “Is it possible to get that ‘translation’ cost down for lots of people?” he asks. “If we can get the costs down, if people can do some things themselves, then maybe we can get more volunteer lawyers.”

The Montana Legal Services Association, a branch of LSC, with a lending hand from the State Bar of Montana, provides a Web site as a lower-cost way of delivering information to low-income residents. The site can be accessed free of charge at state libraries, says Chris Manos, executive director of the state bar association and foundation. The association and foundation are also advocating videoconferencing as a money-saving measure.

A challenging future

As bar associations, foundations, and their members work to keep budget cuts to legal services and the court system at bay in their states and localities, many say they are faced by two major obstacles: public apathy and continued hard budget times.

“There doesn’t seem to be a huge public outcry,” says Edwards of the Multnomah bar. “I don’t think people have realized the full impact on their lives.”

The short explanation, says Shaine, is that the issue right now truly does not impact most people. “It’s a very difficult message to get out if you’re not being affected by it that day,” she says.That outlook, however, could change, since few economic pundits are predicting any sort of rapid uptick in the local, state, or national economies. That means even greater chances of shorter court hours, fewer prosecutors, fewer public defenders, higher public filing fees, and/or higher taxes—all of which may help the issue gain more attention.

In the meantime, bar leaders anticipate even harder work ahead to maintain programs and services—many of them hallmarks of the legal profession. “It is not just this year,” California’s Herman says. “It is a problem for the foreseeable future.”

Ohio’s Weisenberg agrees. While much of the push to help will likely come from within the bar, he expects increasing pressure on attorneys from lawmakers and the public. “Some legislators are already asking, ‘Why can’t the local bar associations fund some of these programs?’ ” he says. “I think we’ll see more and more of that over time.”

Adds Glaves: “More than ever, the legal community needs to step up and address this. The legal community needs to be a leader.” 

ABA offers help online

From local justice courts to state supreme courts, state budget tightening has had a worrisome impact that has prompted the ABA to offer bar leaders some resources to help them speak out for better court resources.

An online toolkit, “State Court Funding Crisis,” is available on the ABA Web site at “A large part of independence [of the judiciary] lies in courts having consistent, adequate funding to deliver justice,” said Alfred P. Carlton Jr., immediate past president of the bar, explaining the need for the communications effort.

The toolkit grew out of requests to ABA leadership for help from many state bar leaders who gathered at the ABA Midyear Meeting in Seattle in February, according to Deborah Weixl, director of strategic communication and planning for the ABA Division of Media Relations and Communications.

Among the items in the toolkit: a sample op-ed piece for bars to send to local media; suggestions for building community support for court funding; a sample speech that can used by bar leaders throughout the community; and a links page for further resources and materials to support court funding.

Weixl says the links page will likely be updated every 30 days or so not only to provide new resources, but also to allow state and local bars to share their experiences and efforts with others. “People can go in and see what people in other states have done, what’s worked, and what hasn’t,” she says.