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May 01, 2013

New Handbook Offers Strategies for Restoring Court Funding

By Jesse Rutledge and Bert Brandenburg

As the judicial funding crisis entered another year, U.S. Chief Justice John Roberts sounded an alarm in his 2012 year-end report: “The Judiciary has been doing its part to carefully manage its tiny portion of the federal budget. Because the Judiciary has already pursued cost-containment so aggressively, it will become increasingly difficult to economize further without reducing the quality of judicial services.” The Chief Justice’s comments came on the heels of an American Bar Association (ABA) Task Force on the Preservation of the Judiciary—established by ABA President William T. Robinson III and co-chaired by megawatt lawyers David Boies and Ted Olson—that collected testimony on the impact of funding cuts on courts and court users. As New York’s chief judge, Jonathan Lippmann, put it: “Access to justice cannot be a pay-as-you-go enterprise.”

To complement these high-level efforts, Justice at Stake and the National Center for State Courts have published a new handbook to help make the strongest case possible for adequate funding. The guide, Funding Justice: Strategies and Messages for Restoring Court Funding, includes research-tested recommendations on the best ways to talk about court funding and get traction with decision makers and the public.

Funding Justice builds on more than a year of work of gathering data and identifying best messages. As its introduction explains, the National Center for State Courts and Justice at Stake believe this handbook is designed to help court-funding advocates “tell the story of the courts, and why they matter, in an era when the public is very focused on government austerity.”

Our Research

Court funding isn’t a kitchen-table issue. That’s why we had researchers begin with focus groups to better gauge how the public approaches these issues. We learned more, for example, about Americans’ demand for austerity—and focus on other priorities—as reflected by a focus group participant from Virginia, who said, “I do believe that you have an issue with your court budget. However, I’m taxed a lot already.” Indeed, the austerity theme was so widespread throughout the public opinion research that addressing it in public communications is a key recommendation of the research.

Armed with these findings, we commissioned a nationwide poll of American voters. Unfortunately, the results clearly showed that public distrust of government spills over to the courts, and that the public blames legal maneuvering and excessive lawsuits, rather than funding cuts, for court backlogs.

Finally, we commissioned one-on-one interviews with chief justices, legislators, and others closely involved in debates over court funding. Some of the responses were blunt, yet instructive. A legislative fiscal staffer, for example, had the following complaint: “The courts like to be able to say, ‘we’re a separate branch of government; we need full funding because we are a separate branch. . . . You’re treating us unfairly; you don’t understand why we need this funding.’ And that’s true because they can’t document it satisfactorily for us.”

Two-Tiered Strategy

The results were clear, if unsettling: Quite simply, most Americans aren’t supportive of appeals for court funding at this time. But this doesn’t mean giving up.

Instead, a two-tiered strategy is imperative. In the short term, advocates of court funding can make their strongest case with lawmakers and other decision makers. At the same time, it’s smart to launch a longer-term effort to persuade Americans that underfunded courts will hurt taxpayers and the nation’s economy.

Step 1: Influencing Budget Policymakers

When it comes to influencing budget policymakers, Funding Justice lays out these guideposts:

  • Build relationships by engaging policymakers year-round, not just at budget time. Missouri court leaders start with an annual social event hosted by the state supreme court for freshman legislators.
  • Find ways to save taxpayer money, and report back on progress.
  • Educate legislators and staff about the courts, explain the impact of cuts in concrete terms, and remind legislators of the judiciary’s core mission.
  • Build broad coalitions with nontraditional partners. “[T]o have users of the system advocate, people who didn’t work for the system, that was useful and new. Increase that,” counseled one senior legislator.

Overall, legislators want to evaluate the job courts are doing in serving the public, not hear a tale of woe about staff layoffs or judges losing salary increases. The most effective approaches rely on compelling, specific narratives about the legal needs of real people and businesses that underfunded courts are failing to meet.

Step 2: Reaching the Public

Unfortunately, the data show that the public is not ready to be swayed by short-term appeals. But courts and their allies should commence long-term efforts to enlist public support, remembering to focus on similar themes. It’s especially important to remember that the message should not focus on judges, or even the institution of the courts. Instead, focus on the impact of court funding cuts on ordinary Americans. To craft the strongest appeal, it’s important to focus on the harm to individuals, average taxpayers, and the economy as a whole when courts don’t have enough funding to do their job.

Here’s an example of an effective message about court backlogs:

Courts are overwhelmed with record caseloads creating long delays and backlogs. If we don’t act now to strengthen our courts, it will cost taxpayers millions of dollars and put basic constitutional protections at risk.

And here is an effective criminal justice message that follows the same model:

When courts are able to process criminal cases speedily, it saves taxpayers money by reducing the time that defendants spend in jail awaiting trial. Cutting court funding costs taxpayers money by increasing jail time before trial.

Moreover, to make a credible case for greater resources, courts have to first acknowledge their own shortcomings. Only then can they convince the public they’re a sound investment for taxpayer dollars. It’s also important to give taxpayers confidence in their investment by giving details and success stories on how new funding is spent.

Who are the right messengers to advocate for stronger court funding? The public is most persuaded on these issues by retired judges and small business owners. Legislators, on the other hand, want to hear from Supreme Court justices, fellow lawmakers who are attorneys, and constituents.

Success Stories

Funding Justice also includes some success stories to show where innovative strategies have helped staunch the bleeding:

  • In South Carolina, court leaders reversed a massive funding decline and also won approval for nine new judgeships, the first increase in 15 years. The successful campaign was waged with help from in-house counsel and governmental liaison staff for large corporations, including BMW and Boeing.
  • In Utah, court leaders shared performance data with the legislature, earning strong marks for transparency and business-like budgeting. This trust and confidence paid bottom-line dividends for the courts.
  • In Minnesota, court leaders used a simplified, one-page document detailing impacts of proposed budget cuts as part of a successful effort to halt several years of reductions.

Yesterday Is Not Tomorrow’s Answer

In the handbook, former Chief Justice John T. Broderick Jr. of the New Hampshire Supreme Court talks about “the changing face of justice in a new century”:

The American justice system cannot . . . sit idly by with the expectation that it will remain relevant, well-functioning, and indefinitely respected. In this new century, impatience is up, immediacy is king, and interconnection is essential. Yesterday is not tomorrow’s answer.

We agree, and that’s why we set about finding concrete, modern-day answers and have assembled them in Funding Justice: Strategies and Messages for Restoring Court Funding. We hope you find it useful. Get a copy of the report at justice.