Judiciary ombudsman: solving problems in the courts.

• Author: Bertran, Michele
• Position: New Jersey

INTRODUCTION

"Help! I have a problem. I need assistance." Almost everyone entering the superior court in Newark, New Jersey, needs some type of assistance. Sometimes I wonder what would happen, if upon their arrival, a court employee greeted them by declaring, "Welcome to your court where we treat you fairly, mete out justice speedily, and help you to resolve your disputes satisfactorily." This greeting would paraphrase the mission of the New Jersey courts and announce, literally from the door, a commitment to make that mission a reality. (1) What would be the public's reaction to such a declaration? Incredulity? Suspicion? Relief? Gratitude? Respect?

Based on what we know about public opinion of the justice system we can imagine a combination of all of these responses. (2) The twenty-first century American public wants a legal system that instead of merely moving cases along in a conveyor belt-like manner, enables people to participate in a dignified, meaningful, and expeditious process that helps to address their problems. (3) Recent innovations in court system design and management, such as problem-solving and user-friendly courts, are helping to achieve these goals. (4)

In response to public opinion and citizen requests, the New Jersey judiciary has developed an ombudsman program to help court users effectively participate in the system and redress problems when they occur? This article describes the program and its relevance for courts seeking to be more responsive to the public.

1. WHAT IS AN OMBUDSMAN?

   1. Definition

      The term "ombudsman," generally recognized as originating from the Swedish word for representative, designates an office that investigates and resolves complaints about the functioning of an entity. (6) It has as its basic goal the improvement of administration. The ombudsman's most important feature is that it has the means to "protect individual rights against the excesses of public and private bureaucracies." (7)

      The idea (8) of an ombudsman for the New Jersey courts grew out of discussions about the experiences of women and minorities in the courts. The court's Task Force on Minority Concerns proposed the idea to the New Jersey Supreme Court in an interim report about the treatment of minority groups in the New Jersey courts. (9) The Task Force's final report included a series of recommendations to improve overall treatment of minorities in the courts. The Task Force found that the public wanted an office that could provide more information about the justice system and receive and investigate complaints about abuses in the judicial process. (10) This recommendation defined the New Jersey Judiciary Ombudsman Program and laid the foundation for its objectives.

   2. Models

      As a general matter, there are three kinds of ombudsman: classical, organizational, and advocate. (11) A classical ombudsman position is usually established by legislation that creates a position to handle complaints against the government. An organizational ombudsman can work in the public or private sectors, such as universities, hospitals, and private companies. This type of ombudsman generally handles the complaints of constituents, such as students, patients, employees, consultants, or contractors. Similarly, an advocate ombudsman may work in the public, or private sectors, serving as an advocate on behalf of specific categories of consumers and potential complainants.

      A recent proliferation of ombudsman offices has produced variations in standards and procedures. Some offices, with other names, closely fulfill established ombudsman criteria while other ombudsman offices may stray from established standards. A recent report outlining the standards for the establishment and operation of ombudsman offices acknowledges that pragmatic reasons may prevent immediate conformity with established standards but nonetheless urges compliance. (12)

      However, the models share a general definition of proper subjects for investigation by an ombudsman that include "allegations of unfairness, maladministration, abuse of power, abuse of discretion, discourteous behavior or incivility, inappropriate application of law or policy, inefficiency, decision unsupported by fact, and illegal or inappropriate behavior." (13)

      The New Jersey Judiciary Ombudsman program incorporates elements from established ombudsman models and adheres to the general definition of proper subjects to investigate. The program was not established by legislation, like a typical classical model, but has evolved out of court policy on maintaining judicial independence and fostering public trust and confidence in the courts. (14) It does not perform the function of protecting against governmental abuses from outside, but works from within to ensure good service and accountability. Nor does it advocate on behalf of any one particular constituency. In many ways it can be likened to an organizational ombudsman, often used as a tool to promote the credibility of an organization. (15)

      The doctrine of judicial independence precludes the authority to intervene in the decision-making and conduct of courts and their personnel. Recognizing this doctrine, ombudsman standards typically exclude the authority to investigate the conduct of judges. (16) However, one model act carves out a narrow exception that gives a state ombudsman the "jurisdiction to investigate administrative or ministerial acts by employees of the judicial branch, when those acts are peripheral to the adjudication itself." (17)

      An example of a state ombudsman's office that handles court-related issues is the Alaska Office of the Ombudsman. The office, which reports to the legislative branch, was established to address complaints about state government. (18) A recent investigative report outlines the Alaska Ombudsman's investigation of a citizen's complaint about incorrect information received from the office of the court clerk. The investigation resulted in a resolution of the complainant's problem and recommendations for improving procedures to prevent future errors. (19) This is the same type of service that an ombudsman for the courts can provide, i.e., investigation and resolution of complaints about matters that are peripheral to adjudication. The New Jersey Judiciary Ombudsman Program follows this approach.

      An ombudsman's office is a recognized method of promoting accountability in government institutions. Notwithstanding the differences between the models, many people are familiar with the ombudsman concept because of its existence in various entities in the public and private sectors. In New Jersey, for example, the public can redress their grievances about treatment of the institutionalized elderly or inmates in prisons through ombudsman offices serving those constituencies. (20)

2. WHY AN OMBUDSMAN FOR THE COURTS?

   1. Accountability

      Courts can be complex and intimidating. The issues that bring the public into contact with the legal system generally involve significant rights and matters of great importance to individuals, communities, and society. When court users experience perceived or actual problems, for any reason, including the novelty of their legal issues, perceived mistreatment, or other unique concerns, they want someone to help them find out where the problem lies and help get the case on track. (21) This is important because a court system's missteps, even minor ones, have significant consequences for the individuals involved and the public's perception of the judicial system. We know this from national public opinion surveys about public trust and confidence in the courts. (22) In New Jersey, we have learned about this from our efforts to solicit public feedback from focus groups, citizen advisory boards, and customer service surveys. (23)

      Understandably, the public wants to effectively protect their individual rights and to hold the system accountable when the system's bureaucracy fails to do so. Like all courts, New Jersey has well-established mechanisms in place for appealing decisions and for filing formal complaints about judges and lawyers. (24) Less well defined are the steps citizens can take to file complaints about court staff.

      However, formal disciplinary procedures often necessitate written correspondence from the complainant. (25) In many instances, the public may be unaware of these procedures, or if aware, nonetheless may want to speak with someone before initiating contact with these bodies. Established complaint mechanisms are only useful if they are accessible and if the public is aware of them. To be effective and offer meaningful redress, the public must not find them too cumbersome to use due to literacy or language barriers, or unfamiliarity with such procedures.

      The ombudsman provides information about these procedures, and handles complaints about court staff as well. Perhaps more importantly, the ombudsman process allows the complainant to air grievances, ask questions, and consider options and possible solutions. Ultimately, the ombudsman helps support the proper use of established complaint mechanisms while acting as a court-based resource for the public. Enabling the public to have greater access to both established complaint mechanisms and a court-based resource for problem solving ensures greater court accountability.

   2. Effective Participation

      Courts across the country are facing myriad issues arising from social and economic problems. These issues have produced an increase in the overall volume of litigation and an increase in the numbers of pro se litigants. (26) Of all of the constituencies that a court-based ombudsman may serve, perhaps the most likely group to avail itself of this service is the litigant without a lawyer. Although litigants represented by counsel may experience problems in the courts, they nonetheless have a designated advocate and guide. In contrast, pro se litigants must navigate foreign territory alone.

      Other constituencies can...