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Is Justice Denied a Shortcut to Anarchy?

By Katerina Milenkovski and Mary S. Diemer, Litigation News Associate Editors – June 11, 2009

State Budget Woes Are Affecting Courts
If “justice delayed is justice denied,” as William Gladstone said, then justice is being denied all across the country as one more casualty of the economic downturn. Several states face mounting budget deficits that are affecting how those states’ courts operate, forcing the American justice system to make painful cuts in response to this latest financial crisis.

According to the National Center for State Courts, a research and advocacy organization representing the 50 state court systems, at least 25 state judicial systems face budget shortfalls this fiscal year. As a result, some cash-strapped states are postponing jury trials, some are cutting their hours of operation, some are imposing mandatory employee furloughs, while others are refusing to fill vacant positions or are imposing hiring freezes. All of these service cuts come in an effort to save money and make ends meet, yet are compounded by the fact that court caseloads tend to increase in a weakening economy.

Effect on Access to Justice
Court advocates, including judges and attorneys, are extremely concerned about the impact of these cuts on the delivery of justice. “It’s a mess, frankly,” says David A. Soley, Portland, ME, cochair of the ABA Section of Litigation’s Trial Practice Committee. “Around Maine, some courts are closed half-time. Some more than that. Jury trials are barely available,” Soley observes.

In Maine, court magnetometers also are no longer being monitored in an effort to cut security costs, potentially compromising court security measures.

Other states are not immune from budget cuts that are hobbling judicial operations. In New Hampshire, Charla Bizios Stevens, Manchester, NH, cochair of the Section’s Family Law Litigation Committee, reports that the two largest counties have suspended jury trial and other counties are moving to jury trials every other month. This move, designed to save money on security costs and juror per diem payments, is significantly delaying the progress of civil and criminal cases.

“A few people I’ve talked to have said they’ve been bumped a few times, and every time that happens, you go to the bottom of the list, because other cases are already scheduled in between,” Stevens says. “This is true for criminal as well as civil matters,” she adds.

In neighboring state Vermont, courts are closing for one-half day each week. The closure is being implemented to allow employees to catch up on paperwork, to save money spent on security, and will permit reduced employee staffing levels. In a similar move, Minnesota also is reportedly shutting down three of its judicial districts for one-half day each week to save money.

State Judges Weigh In
State courts are facing perhaps their greatest challenges in a generation or more. State courts handle the vast bulk—approximately 95 percent—of all litigation in the United States. In 2007, state courts handled 47.3 million cases, not including traffic-related offenses. During the same period, the federal courts handled 384,300 federal cases, excluding bankruptcies. In 2008 and beyond, foreclosures, contract disputes, and other civil disputes are surging, meaning that state courts are facing these and other cuts at a time when they will be asked to do justice in a greater number of cases.

A weakening economy reduces the tax revenues available for state governments to provide services. Although state courts recognize the need to do their fair share in response to budget shortfalls, the financial hardships imposed upon state courts are devastating to continued judicial operations and the effective administration of justice, some judges warn.

State judges are getting the word out and asking for help to preserve adequate funding levels. “Our state courts are in crisis. . . . Our budgets are being decimated, even as we know that in times of economic stress, people turn in even greater numbers to their state courts for relief,” says Massachusetts Chief Justice Margaret H. Marshall, Boston.

Justice Marshall, who also is President of the Conference of Chief Justices, recently made these and other remarks during a speech to the ABA House of Delegates. Courts across the country are willing to do their fair share by looking at their budgets and making “painful choices,” she notes.

But at what cost to society? State courts are close “to the pulse of everyday life. Where do the legal meanings of such elemental concepts as ‘birth’ and ‘death’ and ‘family’ take shape? Largely in state courts,” observes Justice Marshall. For this reason, delays in the movement of cases through the state court system really matter to each litigant and to the “public’s perception of its government,” she notes.

Other states are equally concerned about the effects of proposed budget cuts. In a recent address to the Utah legislature regarding the state of the judiciary, Utah Supreme Court Chief Justice Christine Durham said the “drastic” 7.5 percent budget cut proposed for 2009 and a 15 percent cut in 2010 will cause that state’s judiciary to “grind to a halt.” Justice Durham warned that during the period from March 2009 to June 2009, court employees may have to be furloughed for 26 days, representing a 20 percent pay cut during this period. She asked the legislature to support a proposed filing fee increase for new civil cases as a stopgap measure to ensure that the courts will continue “to perform their essential governmental role.”

To keep up with their burgeoning caseload, Florida judges are trying to move through their docket at breakneck speed. “Judges in Florida are overwhelmed by the record number of home foreclosures flooding the systems,” says John M. Barkett, Miami, cochair of the Section’s Committee on National Institutes.

Barkett has heard one judge estimate that he is being assigned 18 new foreclosure cases each day. Another judge estimates that his case load is now over 4,300 cases, most of which are foreclosures and consumer credit matters. This dramatic explosion of case filings, coupled with Florida’s recent decision to lay off 280 employees—approximately 10 percent of all court personnel—highlights the dangers associated with inadequate funding of court operations.

Another unintended side effect of the delayed delivery of justice from an overworked and underfunded judiciary in Florida could soon be seen in other parts of the country, causing the U.S. economy to suffer further. For example, one Florida economist, Tony Villamil, Miami, estimates that Florida alone is likely to lose $17 billion in economic output each year because of additional extensive delays in resolving civil cases. In addition to legal fees, lost revenue, and other interest payments, the economist estimates that more than 120,000 jobs are affected by these delays in the state of Florida.

On a day-to-day basis, what does all of this mean for litigators? In many states, lawyers are being asked to do more to help the overwhelmed staff. “I’ve heard of lawyers being asked to submit courtesy copies of filings directly to the judge,” notes Barkett, “because cutbacks in the clerk’s office have made it hard to get filings distributed to the judges in a timely manner.”

In addition, the Miami-Dade public defender’s office has refused to accept any new cases other than certain felony cases. As a result, notes Barkett, the public defender’s office is reaching out to the community, asking lawyers from the private sector to volunteer to help out. Other state- and county-funded public defenders are also feeling the pinch.

Some clients are opting out of the state court system as the funding crisis deepens. ”Because federal courts are better funded, there has been a wholesale run on the federal courts,” observes Soley, “Obviously you can’t do that in every case because there must be jurisdiction. But in every bigger firm in our area, from what I can tell, everyone is trying to get to federal court if they can. If this trend continues, then the federal courts will be overloaded too,” he predicts.

Courts as Coequal Branches of State Government
Aside from the practical concerns, Soley sees two constitutional problems with the current court funding crisis. “In my mind, without any doubt, a party to litigation has a right to his or her day in court. If we are going to shut down the court house, which some states have done or are threatening to do, I think that’s a violation of constitutional due process.”

An even more important concern for Soley, however, is the separation of powers issue. “The legislatures can obviously make budget cuts where necessary. I have no problem with that. But they still have to give the judiciary enough money to be run independently. This is implicit in the idea of separation of power,” he says.

“Each branch is equal. Each must be adequately funded. The legislature can’t say that they aren’t going to fund the judiciary. In my mind, giving the legislature that kind of power clearly violates the doctrine of separation of power,” Soley opines.

“This situation is analogous to that in Bowsher v. Synar, where the Supreme Court held that Congress cannot exercise control over the Comptroller General, an Executive Branch position. Yet that is what is happening. The legislatures are controlling the judiciary through their funding, or lack thereof,” he notes.

According to Barkett, “the constitutional arguments are interesting to talk about, but they provide no practical solution to the issues.”

“What are you going to do? Sue the judge? That’s not going to fix anything,” Barkett says.

Is ADR a Potential “Work-Around”?
Delays in moving cases through state courts and the attendant economic costs are leading many parties to seek alternative means to resolve their disputes. Mediation and arbitration are becoming much more commonplace, especially for those who are unable to file their case in federal court. “But, that’s not a satisfactory alternative in my mind. I prefer to go to court,” says Soley.

Stevens, on the other hand, says she has not “seen a rush to mediate or arbitrate” in New Hampshire. “We already have mandatory civil ADR in all civil cases. From what I’ve seen, people are just making do and biding their time. Because basic matters, like preliminary scheduling conferences, are taking several months, people are just forging ahead on their own, without the benefit of court ordered discovery or deadlines,” she says.

In an interesting twist, while the demand for arbitration may be increasing because of what is happening in the courts, a couple of statutes pending in Congress would eliminate arbitration as an option in many cases. “The issue I see is that there is a move to curtail arbitration, with no consideration as far as I can tell, on the impact to the court system,” says Edward M. Mullins, Miami, cochair of the Section’s Alternative Dispute Resolution Committee.

“Especially with complicated technical matters, arbitration involving arbitrators who are familiar with the concepts is much more efficient than starting from scratch and trying to teach everything to a jury. It’s ironic that in this budget crisis, these statutes, if passed, will end up sending even more cases to court,” Mullins notes.

Keywords: Access to justice, state courts, budget cuts, court funding, ADR

Related Resources

  • June 11, 2009 – The picture of the diesel fuel pump in the article "Is Justice Denied . . ." seems to represent a litigator's view of state legislatures as just a source of fuel/funding for the state courts. The article also quotes Trial Practice Committee Cochair David A. Soley, who reasons that, because the branches of government are co-equal, the legislature has to fund the state judiciary adequately, or else it violates the principle of separation of powers. His remarks amount to an invitation to sue state legislatures to squeeze whatever the courts consider to be "adequate funding" out of them or, perhaps, to bypass state legislative appropriations altogether and to seize the funding from state treasuries (the treasury being in the hands of another co-equal branch).

    Bypassing the legislative appropriations process would be very bad public policy.

    Each branch of state government has checks and balances on the other two. Probably the most important perogative of a state legislature is the power of the purse. Any precedent that weakens the absolute authority of a legislature to appropriate is also undermining the separation of powers. State legislatures have to allocate funding to all of the general governmental purposes that compete every year for priorities. Why should only judges have special access to tax dollars? Governors believe that many of their state agencies perform absolutely essential functions. So do lots of interest groups. If their preferred programs do not receive appropriations commensurate with their view of what they need, why shouldn't they, using this line of reasoning, line up right behind the judges? They might even try to jump the line and get ahead of the judges, except that judges would be setting the priorities. The fight over appropriations would simply move from the legislature to the courtroom, commingling powers, not separating them.

    The article noted the vast disparity between the caseloads of state courts and those of federal courts, with the former handling 95% of all litigation. This is similar to the situation on the executive side: state executive-branch agencies bear the responsibility for maintaining public health, safety, education and welfare in myriad programs. And the states cannot lay down their burdens. Federal agencies in contrast have specific, limited missions, selected at the discretion of Congress. Even the tendency of Congress to federalize state issues has not tipped the balance yet. This is reflective of the constitutional scheme, under which the general police powers of government reside in the states, while the federal government has limited, delegated powers.

    In view of the disparity in state vs. federal government burdens, the disparity that is really responsible for the funding problem is that the federal government has occupied a grossly disproportionate share of the tax base. With the federal government taking so much, state legislatures are limited in their ability to raise revenue. Every federal earmark can be considered a dollar taken away from an essential state function, including the operation of the state courts.

    John P. Krill, Jr.
    Harrisburg, PA


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