Preserving Court Funding Will Require Effective Political Efforts by the Judiciary and Its Allies

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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 several court administrators, members of the judiciary and legislators who engaged in blunt discussions on court funding today with members of the ABA Task Force on Preservation of the Justice System. The task force convened during the ABA’s 2012 Midyear Meeting in New Orleans.

“The courts are nonpartisan, and support for the courts is nonpartisan,” said Gail Stone, the law and justice policy advisor for the office of the King County executive in Seattle, “but revenue is a very partisan issue.”

But recognizing that politics will be a key to whether legislatures make sure that courts and other justice services receive adequate funding during the current fiscal crisis will require some adjustments in thinking by judicial leaders, said some of the panelists who addressed the task force.

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

The 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. The task force has been continued by current ABA President Wm. T. (Bill) Robinson III, the member in charge of the Florence, Ky., office of Frost Brown Todd. The task force’s recent efforts have focused on raising awareness of the threat courts face from underfunding and identifying possible strategies for responding to that threat.

But efforts to gain traction with legislators on the issue could be undermined by changes taking place in many legislatures, panelists told the task force. One factor, said Child, 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 legislators is dwindling in states 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,” Child said. In California, he noted, the concept of separation of powers “doesn’t carry much water with our legislators. People listen politely, but it doesn’t mean much out there in the real world.” It’s better for the judiciary and its advocates to focus on what services the courts actually provide.

But the problems facing the courts are not due to underfunding lack of political skills, said John R. Broderick Jr., the retired chief justice of the New Hampshire Supreme Court. He now is dean and president of the University of New Hampshire School of Law in Concord, and serves as a special advisor to the Preservation 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.”

Related coverage:

ABAJournal.com: “Court-Funding Crisis Is About Politics, Not Just Money, Erwin Chemerinsky Says”

ABAJournal.com: “O’Connor: Lawyers & Judges Need to Wake Up to Judicial Funding Threat, Prep for Political Battle”

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