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Vol. 36, No. 2

Coming Together Closing Gaps: Bars call on unusual allies to battle crisis in court funding

by Robert J. Derocher

The stark and startling budget numbers leave ABA President Wm. T. (Bill) Robinson III little doubt about the perilous state of judicial branch funding nationwide.

“This has reached crisis proportions,” he says, ticking off recent news of $350 million in judicial funding cuts in California, at least six states that close courts at least one day a week, and the New York state judges who haven’t received raises in a dozen years. “Constitutional freedom and democracy are in jeopardy.”

Robinson also frets over frustrated judges resigning in record numbers, too many schoolchildren with too few clues about the third branch of government, and battered women waiting weeks for clogged courts to process orders of protection.

While the threat to the judiciary mounts under the weight of years of budget cuts and continued bleak economic forecasts, efforts by the ABA and state and local bar associations across the country to fend off court collapse are also growing. And it’s happening in ways that are somewhat unusual. YouTube videos, think-tank studies, and media events are now part of the arsenal that some bars are calling on to draw attention to the threat to the judiciary.

But perhaps some of the most critical steps that associations are taking, Robinson and others say, are through new and sometimes unique partnerships. Increasingly, they say, bars are joining with other bars and legal groups, businesses, judges, and community organizations—including some with which they have feuded in the past on sensitive issues such as tort reform and pro se litigation.

The combined efforts are important, many say, to ensure the education of the public, the business community, and state lawmakers that is critical to staving off more funding-related judiciary cutbacks. And with success stories emerging, several bar leaders are hopeful that associations can play pivotal roles in bringing the legal system away from the brink of widespread failure.

The future of the judiciary, they say, could very well depend on their involvement and joint efforts.

Changing the message

The legal community’s response to the widespread budget cuts has been building for the last two to three years, many bar leaders say. While it has long been acknowledged that virtually all states are struggling with economy-driven revenue shortfalls, the growing number of reported layoffs, court closures, and delays has moved more lawyers to take action.

“Lawyers, as officers of the court, have a responsibility to stand up and speak for the courts,” Robinson says. “The courts are simply not another line item in the budget. They are a co-equal branch of government.”

But getting that message out to economically weary and lawyer-leery citizens and state legislators can be a challenge, says Charlie Hall, director of communications for Justice at Stake, a nonpartisan coalition that has spent much of its 10 years focused on promoting fair, impartial, and politics-free courts.

“It’s fair to say that if people think it’s just a lawyers’ issue, they’ll get no sympathy from the public,” Hall says. “People don’t tend to go to courts if they don’t have to. It’s a challenge to make this real.”

Bar associations, he adds, also have a tendency at times to be more immersed in their own activities and projects, which can add to poor public perceptions and keep lawyers on the sidelines. But over the last several months, he has noticed changes in how many law-related organizations are speaking out about funding cuts. That holds true for his own organization, a coalition of more than 50 partners, such as the ABA, the National Bar Association, the National Center for State Courts, and several community justice organizations.

“We realized, ourselves, that when the funding dries up, it’s an existential threat to fair and impartial courts,” Hall explains. “It’s not a time for business as usual. This is a crisis. Courts may not be functioning in the same way two to three years from now.”

Using the coalition-building skills that led to its founding, Justice at Stake is working with several business organizations, law enforcement groups, and social service advocates, as well as the ABA and the NCSC, to raise more public awareness of court funding woes. One such effort, Hall says, includes working with the NCSC on a new communications manual aimed at educating the media and the public about the courts.

The NCSC, in turn, is working with the ABA to develop a set of principles laying out how courts should be funded and operated in the years ahead, says Dan Hall, vice president of court consulting services for the center. The principles are expected to be reviewed by the Conference of Chief Justices and the Conference of Court Administrators, with distribution to state and local bar associations within the year.

“It doesn’t work to just stand up and say, ‘We need money,’ ” the NCSC’s Hall says. “We have to elevate the argument.”

Addressing the public

In Massachusetts, where the state judicial budget has been cut by 16 percent over the last two years, the Massachusetts Bar Association—with some help from the ABA—is taking the argument public. The bar is developing a series of videos featuring Robinson and possibly other prominent national lawyers, judges, and everyday citizens talking about the critical need for court funding. The videos will be posted on the bar’s website and will be made available to other bar associations—with hopes that they also might go viral on the Internet, says MBA President Dick Campbell.

The videos are part of a multipronged informational effort that also includes plans for a first-ever set of highway billboards, and the resurrection of the “Walk to the Hill,” which will involve bar associations from throughout the state meeting with legislators to lobby for more court funding. Also in the works, Campbell says, is a statewide bus tour during which various bar leaders will meet with chambers of commerce, local mayors, and law enforcement officials.

“The past practice of speaking just to the Legislature won’t work anymore,” Campbell believes. “We have to convince the public that this is critical. We’re trying to be bold about it because of the times we live in.”

Uniting the profession

Building partnerships among bars and promoting education have also figured prominently for associations in Pennsylvania and California. In Pennsylvania, the state’s three largest associations—the Pennsylvania, Philadelphia, and Allegheny County bars—worked with the state Supreme Court, Legislature, and Legal Services to pass court filing fees that help to fund the courts and legal services. While the filing fee legislation has not solved all of the funding issues, it has helped significantly, says David Blaner, executive director of the Allegheny County Bar Association.

Although the initial efforts were not jointly planned, Blaner notes, it became evident that the power of the three associations working together helped pave the way not only to help fund the courts, but also to provide additional funding for indigent defense.

“It opened up future communications,” Blaner says. “When these sorts of things come up again, we’re probably going to be talking about it with [the state and Philadelphia bars].”

With close to 300 city, county, and specialty bars, California has not often seen widespread coalescence or cooperative efforts among them, says Joe Dunn, executive director of the State Bar of California. But that is changing, he adds, with the establishment of the Open Courts Coalition, which includes virtually all of those bars, under the coordinating umbrella of the state bar.

“We are finally making moves to tap into the potential of the entire legal profession in California, as a whole, to become an effective voice [for the courts],” Dunn says. “Local bars have stayed focused on local issues. That’s not acceptable any more. Court funding is unifying our profession.”

The coalition has a 20-member steering committee made up of a cross section of lawyers across the state, and is developing plans to lobby state legislators for adequate court funding, says Dunn, a former state senator. And, echoing the NCSC, Dunn says the coalition also wants to play a role in shaping the future of the judiciary in challenging economic times.

“No one is arguing the need for change,” he notes. “We’re hopeful that all who participate can set aside parochial agendas to find a solution that all folks can work with.”

In Minnesota, budget cuts have brought the state’s largest metro bar—the Hennepin County Bar Association—and many state and local judges together in efforts to stem budget cuts and educate legislators and the public, says Hennepin County District Court Chief Judge James Swenson.

“We’ve been working the last few years to improve the relationship with the bar. We knew we had to be allies,” Swenson explains. “The whole legal system is in jeopardy, and all legs of the [legal] stool need to work.”

Over the last several months, Swenson and other judges—including the chief judges at the state’s two highest
courts—have met with lawyers at some of the largest and most influential law firms in the state to discuss the potential negative impacts of continued cuts in court funding and the need for individual lawyers, law firms, and the organized bar to support the judiciary, particularly in lobbying state lawmakers.

“It’s not just about the bar acting as a lobbyist for the judiciary,” Swenson says. “It’s also about the need to reach out to business partners.

“Many of the law firms invited some of their key clients, which was new. The sense from everyone there was that this was serious business. The judicial branch is under assault.”

Making the business case

Sensing the real possibility of bigger court woes and potentially serious financial and operational impacts on business, more bars like Hennepin County are enlisting the support of the business community to bolster the case for more court funding. And with discussion about jobs and the economy dominating headlines, it’s a cooperative tie-in that makes sense for many in the legal community.

That was the thinking in South Carolina, soon after the state lured the Boeing Co. to the state to open a major manufacturing facility, bringing an estimated 4,000 jobs—a move that embroiled Boeing in a dispute with unions and the National Labor Relations Board. At the same time, South Carolina’s legal community was in a continuing dispute with state legislators over court funding cuts that left the judiciary looking at layoffs, courtroom closures, and long trial delays.

Leaders from the South Carolina Bar approached the South Carolina Manufacturers Alliance, which is led by big employers such as Boeing and Michelin Corp., asking for support in the funding battle. The appeal to the broad business community was a new technique for the bar, says Brad Waring, a past state bar president who helped lead the effort. The businesses soon sent letters and made calls to state legislators, telling them that they needed access to courts in order to run their businesses and avoid damaging layoffs and closures themselves.

“That changed the dialogue,” Waring recalls. “People started saying, ‘Wait a minute. Businesses need this to function?’ ”

The efforts helped lead to the restoration of more than $15 million in state funding for the judiciary in 2010, Waring says, and has provided the bar with plenty of goodwill as it seeks to stabilize funding for the judiciary in the future.

In Florida and Georgia, the state bars relied on a professional research firm to make the business cases for keeping their state governments from cutting too much from the judiciary. In Georgia, the study released in January 2011 by the Washington Economics Group estimated that years of delays in civil and domestic relations cases in the Georgia courts—due in large part to inadequate budgets—had cost the state more than 3,400 jobs and up to $800 million in lost economic output.

Stated the report, “From an economic development and business climate perspective, reversing the trend of declining (real) appropriations for the court system of Georgia should be made a priority, so as to minimize court system delays, thereby improving the long-term economic development prospects of the State.”

“It helped educate folks that this was not just about lawyers. It was a useful arrow to have in our quiver,” says Ken Shigley, president of the State Bar of Georgia. “We’ve gotten a vastly better reception [from legislators]. The cooperation we’re seeing now is something that we haven’t seen in a very long time.”

Relations are also stronger with the state’s Chamber of Commerce, Shigley adds, “with coordination at the upper levels” on court funding issues.

As the much smaller () Metropolitan Bar Association has known for awhile, coordinating with business and community groups is effective at the local level as well. After studies showed that Greene County (Springfield’s county) had the highest per capita need for judges in the state, the 900-member bar reached out to its Chamber of Commerce to make it aware of the potential impacts, says Crista Hogan, executive director of the SMBA.

“We told them, ‘If you have an employee going through a divorce or a custody dispute and it’s getting delayed, they’re not going to be fully attentive to what they’re doing at work,’ ” she notes.

The effort was successful, Hogan says, with more funding secured to add judges to handle the heavy workload. It has also led to joint legislative lobbying by the bar and the chamber that still continues, she adds, as well as cultivating a lasting relationship that has seen bar members—and Hogan—get more involved in chamber activities.

A role for bars of all sizes

Many bar leaders hope that these and other success stories will lead to continued cooperative, aggressive efforts by bar associations to defend against judicial funding cuts. Priya Sanger, immediate past president of the Bar Association of San Francisco, is in that group.

Funding cuts and 200 proposed layoffs that threatened to virtually close San Francisco’s traffic courts and lead to 12- to 18-month delays in family court actions prompted the bar to launch a Courts Funding Task Force. In just a few short weeks, the task force held public hearings and press conferences to highlight the problems and helped broker a deal between
the courts and the state that saved about 130 jobs and kept 11 of 14 civil courts open.

“I think we all became much closer, as a bar association, because crises like this make you realize how much you can accomplish when you work on things together,” Sanger says.

The bar’s work not only energized members to solve the local issues in San Francisco, she adds, but it has also led to an active role in the state bar’s Open Courts Coalition. “We’re brainstorming ways right now to restore courts funding,” Sanger notes. “It’s our goal to get this message out to all of the power brokers in California, to educate our legislators and the public.”

Sanger and others agree that when it comes to education, the grassroots work of local bars will be key to making people aware of the potentially dire consequences of inadequate judicial funding.

“They’re closer to the ground level of reaching the people who are drafting the budgets,” says Charlie Hall of Justice at Stake. “Bars are a significant part of any scenario you can imagine.”

And as formal and informal bar coalitions show, the efforts of state bars, the ABA, the NCSC,  Justice at Stake, and similar large organizations are also critical to developing unified, widespread messages that demonstrate the need to stand behind the judiciary—whether they be local courts or the Supreme Court.

“If the bar does not stand up very passionately for the court system, why would anyone else?” Charlie Hall asks.

But as Bill Robinson notes, it’s no time for the legal community to go solo.

“The profession cannot be successful unless we reach out to the community at large,” he says. “To stop the bleeding, we need to awaken the American public that this is about small business, it’s about parents seeking custody, it’s about enforcing contracts, it’s about American freedom.”    

Suing for adequate court funding?

Call it the Nuclear Option, but some bar associations and other legal organizations say continued judicial budget cuts might make it necessary to go to court to save the courts.

Some fear that the U.S. Constitution—which provides for separate but equal branches of government—might be compromised when the legislative and executive branches combine to strip the power of the judicial branch through inadequate funding.

“There is a threat of hollowing out the judiciary and leading to an even more serious problem: the relevancy of the courts,” says Dan Hall, of the National Center for State Courts.

As part of its efforts to restore millions of dollars in court budgets there, the Bar Association of San Francisco formed a task force that is exploring the constitutionality of such cuts, according to the bar’s immediate past president, Priya Sanger.

While she and others are hopeful that other solutions can be reached to solve judicial funding woes across the country, the legal community, they say, still needs to be prepared to take more drastic action.

“This is the third branch of government,” Sanger says. “This is what keeps law and order in our state—and in our country.”