An impending crisis in state court funding

Our state courts have made enormous strides in recent times to improve the delivery of prompt, affordable, fair, and effective results to a society that relies heavily on its legal system. Judges and judicial systems have conceived and implemented innovations to better cope with drug offenses, illegal use of guns, family dissolutions, and case and jury management. We have learned how to make courts more user-friendly for self-represented people, and thus how to assure that justice is accessible for millions who might otherwise simply give up on the legal system. We know how to train judges to ensure procedural fairness and we know how to improve court technology. E-filing is no longer a fantasy.

But having good ideas isnÕt enough. In order to implement these innovations more broadly, adequate and stable funding is critically needed but is not available in too many states. This is an impending national crisis that demands strong state leadership and a concerted, thoughtful national debate.

From Hawaii to New York state budgets are hemorrhaging. According to the National Center for State Courts, a minimum of 14 states are projected to face up to a 10 percent budget reduction this coming year. The economy is in dire straits and that spells trouble for many courts. Twenty-nine states project a combined budgetary shortfall of $48 billion. Analysts in Texas, Missouri, and Washington, among others, are projecting budget deficits a little further down the road. One quick and easy ÒfixÓ is to cut appropriations to state courts. The courts that are not fully state funded are just as vulnerable because the projections of the fiscal crisis are equally bleak for counties.

Bad economic conditions put more strain on the courts. There are more debt collections. Unemployment, reduced bonuses, or lack of overtime lead responsible parents to seek adjustment to child support, and lead irresponsible parents to join the ranks of Òdeadbeat parents.Ó This leads to more litigation. Economic stress will not destroy healthy marriages, but it can be the final straw that drives couples to divorce court. A decade ago family court judges divided assets. Today the fight is about dividing debt, which makes resolution even more problematic and litigious. What is driving the demise of Wall Street is the collapse of the housing market. Every one of those home foreclosures was processed through a state court, which has resulted in additional stress on court systems, and yet no additional resources have been made available for courts to cope with the extra burden.

The National Center for State Courts reports that 31 percent of the court administrators surveyed rated their state's current appropriations as inadequate and that was before any further budget reduction. As many as half of the state courts could end up with inadequate budgets by next spring.

Leadership in these times is difficult because many people have decided that in order to combat a budget shortfall, the option of drastically cutting spending is the only choice. In states facing budget gaps, the consequences could be severe. Unlike the federal government, state and local governments cannot run deficits when the economy turns down. Court leaders have understandably been reticent to engage in public debate about these issues, because there is an unseemly political feel to a public debate over court financing that makes many judges uncomfortable. Private grumbling is easier.

Budget woes are leading too many courts to eliminate programs that in the long run will make courts thrive. Family court innovations, problem-solving courts, and self-help centers are not feel good programs that should be curtailed in tough economic times any more than preventative health care should be eliminated as the long-term solution to rising health care costs. Courts must be well run and must be perceived as well run. The result of courts simply giving up on their willingness to innovate may very well exacerbate the fiscal troubles they face.

In Tumey v. Ohio and again in Ward v. Village of Monroeville, the U.S. Supreme Court held that in some circumstances it is unconstitutional to fund courts through court-generated fees. Although no one is suggesting that we disregard this precedent, courts scrambling to counteract diminishing budgets have recently resorted to raising their fees. As a long term solution, increasing the price for access to justice for the consumer simply should not be an option.

Things need to happen and they need to happen now. We need to begin a national discussion on how best to assure adequate and stable financing of courts, particularly in times of economic recession. In May, 2009, the ABA will host a major event on fair and impartial state courts that will focus on the budgetary challenges confronting the courts and how those challenges can be addressed through improved relations between judges and legislators.

But the debate must begin sooner. That debate needs to ask such questions as whether courts should carry reserves for the judiciary to provide greater budget stability; whether they should have longer budget cycles; and whether they should have a dedicated revenue stream. There may well be other alternatives. The point is not to endorse a specific solution, but for each of us who care about justice to understand there is an impending crisis that has the potential to be every bit as disastrous to justice as recent hurricanes have been to the Gulf Coast.