Discussion on the state of state courts.

Position:Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts - Discussion

CHIEF JUDGE LIPPMAN: Professor Bonventre does have a way of raising expectations. But we are going to try to meet his expectations, because he makes us all proud to be here. I also just want to mention, before we dig right in, I'm so pleased that Judge Graffeo is here, who is such a wonderful colleague, such a terrific judge, and all of us in the court admire and respect her. I can't tell you how delightful it is to serve on the high court with Vicky Graffeo.

The Law Day theme this year set by the ABA is, "No Courts, No Justice, No Freedom." (1) The point behind the theme is that virtually every state court system in the United States has been under tremendous fiscal pressures during the last year. Across the country there have been widespread budget cuts resulting in furloughs, layoffs, court closings, reduced salaries, cancellation of civil jury trials, and on and on. New York has been no different. Last year we had more than 400 layoffs in our court system. We had courts closing at 4:30. We had Small Claims Court cut down to a small percentage of what it was. Arrest to arraignment times were impacted heavily by budget cuts and the lack of personnel, causing great delays in court proceedings.

We in New York feel very good about this year. The governor and the legislature seem to be very much supporting our budget, which includes, as you know, money for salary increases for judges and a significant amount of money for civil legal services for the poor. So I'm hoping things are stabilizing here in New York, for the welfare of our state court system. The economy is getting a little better, but to be sure, there is still a sense of crisis around the country. When chief justices get together, this is the main topic of conversation. So we're going to start with that subject, state funding of the courts. Let's see the impact in each of the states here, and try to see the commonalities, and the way people have treated it differently, and approached it differently. That is, right now, the up-front issue in state courts that everyone is talking about.

So, Chief Justice Durham, what's happening in Utah, and how has the national economic crisis been reflected in Utah?

CHIEF JUSTICE DURHAM: Thank you, Jonathan. Let me go up to the 10,000-foot level. He knows he gets to ask the questions, but he also knows that I'll answer the questions.


CHIEF JUSTICE DURHAM: I'd like to go up to the 10,000-foot level for a moment, because when I think about reporting on and discussing the state of state courts, it seems to me that there are three categories of challenges, but they're all intertwined. The first is the funding problem. And the fact that the reductions in funding and the starvation of so many state court systems across the country are actually threatening, in my view, and in the view of many of us, the structure of the rule of law and how it's protected in this country. I heard one of my colleagues refer to it as a violation of constitutional rights "on the installment plan;" when you're closing courts at 4:30 every afternoon, when you're shutting down jury trials as New Hampshire did. These are the stories from all over the country.

The second challenge, and it's related significantly to the first, (and my specific answer to your question about my state) has to do with the way in which state courts are organized and govern themselves. Former Chief Justice John Broderick of New Hampshire, in some comments at a symposium on state funding a few months ago, said that the state courts in this country are, quote, "slowly failing." (2) And he said that it's not just a money problem. The courts are too slow, too inefficient and too expensive, and that we need to do something about the design on the ground in the new economy. And that relates to our governing structures, to the degree to which we have in our state court systems, the ability to manage our own affairs. (3)

I'm going to come back to that, but I just will mention that the third thing that is threatening the legitimacy and the management of state court systems is the method of judicial selection and retention in the state courts. With what is happening on the campaigns, we have some real questions about legitimacy. Let me go back to your question. In Utah, first of all, our state economy weathered the national downturn better than most. We're a very fiscally conservative state, and our legislature, unlike many others around the country, insisted on jumping off the cliff up front. They used the federal bailout moneys to back fill, as much as they could the first year or two, but after that they insisted on statewide, permanent, and on-going budget cuts. And so our court had to take some very real and very significant cuts. However, in Utah we turned around a little bit faster than everybody else. We've stabilized, but in the meantime, our system of government in Utah, which is unique in the nation, includes the constitutional authority to manage the courts and unitary budget powers. We have control over our budget.

In Massachusetts, for example, the chief and the court have to deal with, last count, I think it was something like 212 line items in the judicial budget. That means that the legislature is running the judiciary, which seems inappropriate for the third branch of government. In our state, we have a single-line item and a great deal of autonomy. This has enabled our Judicial Council to plan and we have a brilliant state court administrator, who was Jonathan's colleague for many years, who really helped us plan for the future. We are twenty percent leaner in terms of personnel than we were ten years ago; twelve percent leaner than we were four years ago. Nonetheless, we are able to cover our basic functions. We did the hard work of reorganizing our business plan, of redoing our clerical support systems, of getting rid of court reporters--the technology is there to make court reporters really redundant in any sensibly run system that doesn't have unionized court reporters. We have a lot of flexibility to move things around in our system. So, I have to say, we used the crisis in the funding setting to jump start reforms that we had on the docket already. Getting rid of court reporters is one example. Another example is moving entirely to an electronic record, and to electronic filing, which has saved millions of dollars in clerical personnel. And when we complete that transition, which will happen in the next year, we actually expect to have a certain amount of redundancy on the staff side in our state court system. Now that being said, nobody in state government has had a raise for four years. There are places where morale is at issue, but I'm grateful that we have a governing system in my state that's permitted us to plan for budgeting, which does not undercut the seriousness of the nationwide crisis.

If Chief Justice Margaret Marshall of Massachusetts were here, she would remind us all that state courts do over ninety-five percent of the country's judicial business. And if we are unable to do that business, the rule of law is at risk, and the promise contained in many of our state constitutions of open courts and remedies by due course of law is also at risk.

CHIEF JUDGE LIPPMAN: Thank you. I'd like to summarize what Christine was saying: really in crisis there is opportunity. Chief Justice Abrahamson, have you found that to be the case, or is it just crisis and not much opportunity? What do you think?

CHIEF JUSTICE ABRAHAMSON: Both. First, I want to say I'm glad to be back in Albany, and in no snow. It's been a long winter in the Midwest, too, for which I am grateful. The economy of the state suffers without the snow, as a great tourist state.

In Wisconsin, the court system is financially supported by both the state and the counties. In each county we have a courthouse and at least one judge. The county supports the running of the courthouse and various employees of the judicial system. The state supports other aspects of the court system, which is a statewide court system.

What you have in Wisconsin is both a shortage of money at the state level and a shortage of money at the local level, and the court system has to depend on both. It means also that within the state you have diversity, depending on how the county is doing. Some counties are financially better off than other counties, which means that the court system in that county will be able to do more. For example, some counties can run a drug court, or run an alcohol court, or a veteran's court, or have mediation for foreclosure, but the neighboring county won't be able to have any of these programs because they have less money available. Even though we've been short of money, and even though the state budget for the court system has been cut, and even though the local county budgets for the court system have been cut, we've taken the position that we are going forward and that we are going to do a great job for the people of our state.

So we've got judges who work overtime, and are running drug courts on no extra funds, or very limited extra funds. They're running mediation in foreclosure without funding, because they think such a program is an important access to justice issue. The judges know we haven't gotten pay raises. We've had a reduction in pay because we've had increased contributions to retirement funds, and increased contributions to health insurance. There's been a significant reduction in pay to judges and court staff. But the judges and the staff both take the view that our citizens and people are in economic crisis, and we're going to tighten our belts and do what has to be done to get through this situation. There's very little, if any, whining or complaining. We are just going ahead and doing our important work.

You have to recognize that for several years, there has been no increase in staff and we have had an increase in business, so our...

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