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Keeping Justice Afloat at Midyear: For Courts’ Sake, Politics Is on the Docket

Posted Mar 1, 2012 2:50 AM CDT
By James Podgers and Debra Cassens Weiss

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Whether they like it or not, leaders of the judiciary must be willing to play politics in efforts to preserve funding for their state and local court systems. That was the collective message voiced by court administrators, members of the judiciary and legislators who engaged in blunt discussions on court funding with members of the ABA Task Force on Preservation of the Justice System. The task force convened during the 2012 ABA Midyear Meeting in New Orleans.

“The courts are nonpartisan, and support for the courts is nonpartisan,” said Gail Stone, the law and justice policy adviser for the King County (Wash.) Executive Office, “but revenue is a very partisan issue.”

Recognizing that politics is a key to getting legislatures to adequately fund courts and other justice services during the current fiscal crisis will require some adjustments in thinking by judicial leaders, some panelists said.

“We need to be throwing our elbows in the legislatures, but our judicial officers aren’t good at that,” said Curtis L. Child, director of the governmental affairs office for California’s Administrative Office of the Courts. “That’s why collaboration is important. We need to enlist support to help us throw elbows.”

ABA President Wm. T. (Bill) Robinson III has focused on state court funding problems throughout his presidency, and he continued to hammer home his points during a session of the ABA House of Delegates at the midyear meeting.

“We need to educate the public, we need to address business leaders and especially legislators about the disastrous path we are on,” he said.

Robinson said that as the crisis unfolded, 42 states had reduced court budgets, 34 reduced staff, 39 stopped filling clerk vacancies and 23 reduced courthouse operating hours.

The ABA has established its 2012 Law Day theme as “no courts, no justice, no freedom” with a goal to spur rallies and press conferences on the steps of every state capitol on May 1 to speak out on the need for court funding.

REACHING NONLAWYER LEGISLATORS

The preservation task force was established in 2010 by ABA immediate-past President Stephen N. Zack, the administrative partner at Boies, Schiller & Flexner in Miami, to study the extent of the fiscal crisis facing state and local courts in the United States. Its recent efforts have focused on raising awareness of the threat the courts face from underfunding and on identifying possible strategies for responding to that threat.

But efforts to gain traction with legislators could be undermined by changes taking place in many legislatures, panelists told the task force. One factor, Child said, is that term limits adopted in some states have made it more difficult for the judiciary to garner long-term support from elected officials. Another problem, he said, is that the number of lawyers who are state legislators is dwindling around the country.

Legislators who aren’t lawyers “don’t have as much sensitivity to the needs of the courts and tend to treat them as just another branch of government,” said Child. In California, he noted, the concept of separation of powers “doesn’t carry much water with our legislators.” It’s better for the judiciary and its advocates to focus on what services the courts actually provide, he said.

But lack of political skills isn’t causing problems for courts, argued John T. Broderick Jr., the retired chief justice of the New Hampshire Supreme Court. He serves as a special adviser to the task force.

“It’s about our willingness to take responsibility for change,” Broderick said. “Yesterday is not coming back. We can keep pretending it will, or we can stop complaining and start redesigning the courts for the 21st century.”

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