June 01, 2016
TIPS Toolkit for Fair Court Funding
Dear Friend of the Court—
For many years, the federal and state court systems have been under attack from ever-increasing budget cuts resulting in a crisis of severe underfunding. Such underfunding threatens the ability of our courts to provide access to justice not only for the protection of our constitutional rights, but also the day-to-day resolution of criminal, civil and domestic relations matters. Indeed, the continued existence of many of the recently developed innovative programs that have proven successful in reducing court backlogs, such as drug courts, diversion programs, and commercial dockets is now in question. This Toolkit is intended to help you better understand the problem and urge you to take action in helping to resolve this fair funding crisis. On behalf of the ABA Tort Trial and Insurance Practice Section and our partners, we invite you to review some of the latest information regarding the problem, as well as strategies to use in urging legislators, business leaders and lawyers to seek fair funding for our federal and state court systems.
– Michael W. Drumke, Immediate Past Chair, Tort Trial and Insurance Practice Section
Video: Access to Justice, Fair Court Funding
TIPS has produced a video outlining the scope of the court funding crisis and action points lawyers can take to improve the situation. Lawyers, judges and court administrators from across the country describe the impact of the court funding crisis in their communities. Families, businesses, the general public and the entire economy suffer when the courts are underfunded. The video concludes with the speakers providing useful and essential information on how to address this crisis in your community.
Funding Justice
In 2012, the ABA Task Force on the Preservation of the Justice System teamed-up with the National Center for State Courts and Justice at Stake to analyze the problem of severe court system underfunding and to develop strategies to follow in seeking fair funding. The project resulted in a comprehensive report regarding the research of the problem and key strategies for seeking increased funding. The report is a must read for anyone who wants to become involved in seeking to improve funding for our court systems.
Recent Action by ABA House of Delegates on Court Funding
In August 2011, the ABA House of Delegates adopted Resolution 302 as ABA Policy. Submitted by the Task Force on Preservation of the Justice System and presented by the Task Force co-chairs, David Boies and Theodore B. Olson, Resolution 302 urges state local and territorial bar associations to document the impact of cutbacks to judicial system funding in their jurisdictions, to publicize the effects of shortages, and to create coalitions to respond to and address the funding shortages. It urges state, territorial and local governments to recognize the constitutional responsibility and the priority to fund the justice system adequately and to develop principles that provide for stable, rational, predictable, and efficient means and levels of funding. It urges courts to identify and engage in best practices to insure protection of citizens and efficient, accountable uses of resources. It further urges state, local, and territorial bar associations and the courts to develop sustainable strategies to communicate the value of adequately funding the justice system using advisory groups, enhanced civic and public education and direct engagement with public officials at all levels.
The Report, which supports Resolution 302, contains a thorough examination of the extent of the underfunding crisis, documents the adverse impact on public safety, evaluates the adverse impact on the state and local economies, describes the harms suffered by those who rely on the court system to resolve their cases, and highlights the negative impact on our tri-partite system of government. Drawing upon research of the National Center for State Courts, the Conference of Chief Justices, the Conference of State Court Administrators, and testimony received by the Task Force at hearings held in Atlanta and New Hampshire, the Report sets forth multiple proposed reforms designed to achieve financial predictability and adequacy and to increase efficiency and reduce waste in state and local court systems. The Report further recommends strategies for communication and advocacy by lawyers, bar associations and business coalitions to legislators and executives to provide for fair funding of the judicial branch.
More recently, in August 2013, the ABA House of Delegates adopted Resolution 10C which urges all federal, state, territorial, and local legislative bodies and governmental agencies to adopt laws and policies that ensure full and adequate court funding. It also adopted the Principles for Judicial Administration (and commentary) first published by the National Center for State Courts in July 2012 as appropriate guidance for states to follow in establishing principles for judicial administration in their efforts to restructure court services and adequate court funding. The Principles are divided into three sections. The first two sections address aspects of court administration that form the foundation to pursue adequate funding, including governance, decision-making and case administration. The principles contained in these two sections are necessary because courts must demonstrate that they are effectively managing public resources to purse and compete successfully for adequate funding. The third section contains court-specific funding principles for both judicial branch leadership and policy makers to follow when evaluating funding the court systems.
Principles for Judicial Administration
In July 2012, the National Center for State Courts published its Principles for Judicial Administration, which were developed as a unifying document based on work previously done by the Conference of State Court Administrators, the Conference of Chief Justices, and recent reengineering efforts of various state courts. The Principles are practical operational guidelines intended to assist chief justices and court administrators as they approach restructuring judicial services to become more efficient while securing adequate funding. At their core, the Principles promote the notion that budget requests for judicial funding should be based upon demonstrated need supported by business justifications, such as workload assessment models and the application of objective performance measures. Other fundamental funding principles include:
- Courts should be funded so that cases can be resolved in accordance with recognized time standards by judicial officers and court staff functioning in accordance with adopted workload standards.
- Responsible funding entities should ensure that courts have facilities that are safe, secure and accessible and which are designed, built and maintained according to adopted courthouse facilities guidelines.
- Funding should be provided for technologies need for the courts to operate efficiently and effectively and to provide public services comparable to those provided by other branches of government and businesses.
- Funding must be adequate to allow the courts to meet their constitutional and statutory requirements to resolve disputes.
- Court fees should not be set so high as to deny reasonable access to judicial services and methods should be developed to waive or reduce fees when needed to allow access.
Chief Justice of the North Carolina Supreme Court
Mark Martin, the newly installed Chief Justice of the North Carolina Supreme Court, in his installation address emphasized the need for fully funded and efficient courts to ensure prompt access to fair and impartial courts.
Preserving a Fair, Impartial and Independent Judiciary
The Judicial Independence Committee of the American Board of Trial Advocates (“ABOTA”) published a white paper entitled Preserving a Fair, Impartial and Independent Judiciary, which calls for ABOTA members and other trial lawyers to inform and energize the public through public speaking before civic groups, press releases, op-ed pieces, and letters to the editor to confront challenges to the independence of the judiciary and threats to the right to a trial by jury. Recognizing that the state and federal government fiscal crisis jeopardizes the existence, welfare and viability of our judicial system because, without adequate funding, citizens can expect longer trial delays, poorly maintained court facilities, little or no courtroom security, limited training for judges, and outdated equipment. Further, the protection of the courts would be unavailable to those who need it most, such as battered women and children, injured persons seeking just recovery, consumers protecting their rights, businesses seeking to enforce contracts, and persons protecting their constitutionally protected rights. The white paper traces the history of judicial independence, recognizes the threats to that independence from political challenges, judicial elections, and underfunding and concludes that education at all levels must emphasize the vital role of the judiciary and the importance that judges are free to fulfill their obligations by fairly and impartially deciding disputes that come before them.
Address of Chief Justice
Calling upon images of Ebenezer Scrooge and the ghosts of the past and future, Chief Justice John Roberts, Jr. dedicated his 2013 Year-End Report on the Federal Judiciary to the fate of the judiciary if adequate funding is not restored. Recognizing that the Judicial Branch consumes only two tenths of one percent of the federal budget, Chief Justice Roberts called upon Congress to restore funding to adequate levels and avoid the “hard freeze” Sequestration cuts. He recognized that the United States courts “owe their preeminence in no small measure to statesmen who have looked past politics of the moment and have supported a strong, independent, and impartial Judiciary as an essential element of just government and the rule of law.” He warned that continuing the five percent across-the-board Sequestration cuts would have bleak consequences including fewer court clerks to process new civil and bankruptcy cases resulting in propagating delays throughout the litigation process, fewer probation and pretrial services officers to protect the public from defendants awaiting trial or from offenders following release into the community, fewer public defenders available to enact the Constitution’s guarantee of counsel to indigent defendants, and fewer security guards at federal courthouses, placing judges, court personnel and the public at greater risk of harm. He asked Congress to approve the $7.04 billion budget request submitted by the Judicial Conference for fiscal year 2014. He concluded his remarks noting that both A Christmas Carol and It’s a Wonderful Life had happy endings and wished for the same for funding by Congress for the Federal Judiciary.
Economics of Justice - DRI Paper
In its recent 2014 publication Economics of Justice, the Defense Research Institute analyzed the economic effects of an underfunded judiciary on local economies. Relying upon economic studies performed by the Washington Economic Group and Micronomics, Inc. on behalf of court systems in Florida, Georgia and California, DRI argues that investing only 1 cent per dollar more in state courts, where 95% of all criminal and civil cases are handled, will result in significant positive economic impacts on local economies such as improving the business climate, enhancing social cohesion and improving the standard of living. Conversely, continuing the trend of underfunding state courts will result in billions of dollars in negative direct, indirect and induced economic impacts such as loss of jobs, reduced private spending and reduced tax revenues for local economies. While recognizing the efforts of the organized bar to address the underfunding crisis, DRI cites its 2013 national poll which showed that only 40% of respondents felt the judiciary was underfunded while 60% felt the judiciary was either adequately funded or had no opinion. In the face of these statistics, DRI concludes that more needs to be done to convince the legislative and executive branches of government that a modest increase in state court funding will have a large positive economic impact.
Economic Impact of Reduced Judiciary Funding and Resulting Delays in State Civil Litigation
Micronomics estimates that the current underfunding of our state courts results in lost investment income of approximately $52.5 billion dollars. This loss is a result of the normal behavior of litigants who postpone spending money or investing in their businesses because of the financial uncertainty of pending litigation. When justice is delayed, it lengthens the amount of time that litigants must hold funds out of the economy rather than spending or investing those funds in the ordinary course of business. The economic loss caused by underfunding the courts exceeds the amount of money it would cost to properly fund the courts.
Chief Judges Speak Out
In August, 2013, the 87 Chief Judges of the federal district courts sent a letter to Vice President Joseph Biden, in his capacity as President of the U.S. Senate, expressing their grave concerns over the many years of flat funding of the Federal Judiciary and the devastating impact of sequestration. The letter sets forth in detail how the cuts created an unprecedented financial crisis that adversely affected all facets of court operations, from reduced hours, lack of security and court personnel furloughs, to the inability to provide public defenders to indigent criminal defendants. The judges conclude with a request that the sequestration cuts not be extended and called upon Congress to restore funding to levels adequate to ensure that the Federal Judiciary is able to fulfill its Constitutional and statutory mandates.
ABA President Action Alert
James R. Silkenat, as then-President of the ABA, made a statement to the U. S. House of Representatives, Judiciary Committee Forum on October 8, 2013 titled, "Examining the Impact of Government Shutdown and Sequestration on the Provision of Justice. After describing the important role of the Federal Judiciary, President Silkenat described the impacts suffered by the federal courts as a result of the Shutdown and Sequestration and outlined the bleak path ahead if adequate funding is not restored. Attached to the report is a chart showing the specific impacts felt by each federal district court as a result of the Sequestration. Silkenat further sent a letter to every member of the ABA urging action in contacting Congress to voice concern about the funding crisis and to call upon Congress to restore adequate funding.
State Courts—Report of Funding Crisis in the Illinois Courts
The Illinois State Bar Association Committee on Fair and Impartial Courts published a 2013 Report on the Funding Crisis in Illinois Courts. After describing the problem of unpredictable funding, inadequate funding and disproportionate cuts, the report details the resulting impacts of civil and criminal delays, inadequate probation services, deterioration of courthouse conditions and infrastructure, security threats, drastic cuts in court staff, and inadequate representation of indigents and juveniles. The report presents a plan for addressing the funding crisis which includes educating the public, monitoring the use of resources to ensure that core functions are maintained, using technology to work smarter and more efficiently, and lobbying the legislature to restore funding.
Take Action
Visit our Fair Court Funding Resources and Articles site to view recent op-ed articles appearing in newspapers or blogs. Please use these to develop one of your own.