Suing for support? Cash-strapped courts ponder next move

Suing for support? Cash-strapped courts ponder next move

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The legislative session may be young, but already some state lawmakers are talking about making state court funding a priority.

Certainly that’s news, given how the judicial branch has been passed over during budget negotiations in recent years.

Perhaps that’s because they’re listening to their like-minded conservative Chief Justice, Mark Martin.

The court system’s operating budget has been slashed by more than 40 percent since 2008 and the state’s third branch of government is teetering on the brink of a funding emergency, the Chief Justice told Capitol Tonight viewers recently.

“I would characterize it as getting fairly close to “911,”” Martin said.

Judges on the taxpayer’s dime and attorneys billing their clients by the hour are sitting ready to proceed in the courtroom, Martin noted in a likely reference to what happened this past summer during proceedings in the high profile school voucher case. But they have to wait for a court reporter who’s doing double-time elsewhere in the building, the result of staffing cuts.

And paying jurors and interpreters had become a problem.

“Our citizenry expects for the courts to be properly funded,” the Chief Justice said. “They do not believe that they need to call their legislator and ask them to properly fund the courts.”

Martin expects as much too, and despite recent history and other competing funding demands made upon lawmakers, he believes change will come this session.

“We have legislative relations employees that try to go over to the General Assembly and explain our needs in great detail,” he said. “I am confident that the legislators will understand the needs and will properly fund the courts.”

Why is he so confident?

Perhaps because he knows the state’s judges hold the ultimate trump card: a lawsuit to force the legislature to adequately fund the courts.

That doesn’t happen often, and it’s not their preferred plan of attack. But it’s been done.

And it’s worked.

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Unlike other entities competing for funding – state agencies, for example – the judiciary is a separate and equal branch of government, and the legislature’s obligation to fund it appropriately is constitutionally-based.NCPW-2015-02-11-Judicial-web

Certainly since 2008, meeting that obligation has been a challenge for lawmakers here and elsewhere across the country – particularly given the competing demands on limited dollars in the government purse.

North Carolina’s court system is state-operated and state-funded. Monies received by the courts through fees, fines and penalties are remitted to the state general fund, out of which lawmakers then appropriate funds for court salaries and operating expenses.

In recent years, the amounts the courts have returned to the general fund, citizens of the state and other entities have dwarfed the appropriations received from the legislature.

In 2013-14, for example, the courts remitted more than $740 million to the state and its residents. In return, they received $456 million from lawmakers to keep the courthouses open, pay personnel and provide constitutionally-mandated services.

That appropriation – yet another cut — was far less than needed to meet staffing levels and other necessary expenses as determined by the National Center for State Courts.

And it came at a time when the courts had already done more than its part to accommodate repeated cuts.

By the 2014 short session, the Administrative Office of the Courts had already met cuts by eliminating more than 600 court positions through attrition, voluntary reductions-in-force programs, and involuntary layoffs, and otherwise deferring hiring.

And it all but gave up on requests for technology, which had been slashed by 40 percent over the past three years, from $45 million in 2011 to $27 million in 2014.

Looking ahead, the pot from which lawmakers will draw funds is even smaller, with a budget shortfall now estimated at $270 million — which raises this question:

When does it become incumbent upon legislators to find a way to prioritize the courts budget — either by cuts elsewhere or through new funding streams – and meet their constitutional obligation to properly fund the judiciary?

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Suing state legislatures or other government entities for adequate court funding has not been a favored or frequent tack resorted to by judges.

To the general public it may appear self-serving, said Robert Peck, an attorney with the Center for Constitutional Litigation who has spoken widely on the topic of inadequate state court funding.

And the cases themselves are often plagued with procedural and factual hurdles that make the ultimate goal – getting funding – unreachable.

But it’s not without precedent, and judges in particular (as opposed to citizens suing because of some harm occasioned by budget cuts) have had some success.

A series of such cases in the 1960s and 1970s laid the groundwork, Peck said, with one of the more frequently cited coming out of Pennsylvania in 1971.

In that case, Commonwealth v. Tate, the state Supreme Court upheld an order requiring the city to pay the courts $2.5 million, finding that the judicial branch had the inherent power to determine what funds it needed to function properly and could order the other branches of government to provide those funds.

The state’s Chief Justice wrote:

Expressed in other words, the judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer justice, if it is to be in reality a co-equal, independent branch of our government. This principle has long been recognized, not only in this Commonwealth but also throughout our nation.

Similar lawsuits popped during that time, typically as a last resort and often relying upon the “inherent powers” argument, including cases out of Mississippi, Michigan and Massachusetts — where according to Bob Peck the issue boiled down to whether a court, faced with cuts in the ranks of court reporters, could be reimbursed for a tape recorder it purchased.

And in 1991, New York’s Chief Judge Sol Wachtler filed a lawsuit challenging a proposed ten percent budget cut to that state’s judicial system but settled the case before trial with a negotiated (if minimal) increase to the courts budget.

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Courts in North Carolina did not suffer alone during the recession.

Budget shortfalls across the country have battered state judicial systems, leading court officials and legal experts to convene on several occasions and discuss what steps could be taken to protect their budgets and secure court functions – including filing lawsuits.

And things aren’t improving quickly.

“I think the economic times we’re in are more severe than they were,” Peck said, referring to the initial series of court funding lawsuits in the 60s and 70s.

Today, state AOC director John Smith submitted his estimate of the judiciary’s needs for the 2015-2017 cycle to the state budget director, hoping to shore up the courts here after years of battering.

He wrote:

The judiciary has met the challenges of the recession, diligently working to ensure courthouses remained open and resources, while limited, were properly utilized. While operations and service have been maintained, this has been accomplished through vacancy management, cancelling projects, and delaying maintenance. Turnover has risen significantly. Courts are unable to sustain this level of operations. Access is required twenty four hours a day, every day, in all 100 counties, utilizing only 2% of the state’s overall budget. The state must strengthen the investment in our judiciary.

Smith has a hefty wish list for the coming two years:

  • $16 million to restore the courts’ operating budget

  • $8 million to begin the upgrading and expanding of electronic filing

  • $13 million for judicial employee raises and pay plan steps

  • $40 million to meet necessary staffing levels identified by the National Center for State Courts.

(Read Judge Smith’s budget letter in full here.)

That’s close to $80 million – an amount unlikely to sail through the legislature and on to the governor’s desk, especially given recent history.

But more lawmakers are at least talking about making the courts a priority, and the Chief Justice is confident they’ll step up.

In the long run, strong courts only help the state bottom line – something all lawmakers can understand, Bob Peck said.

“Businesses depend on contracts being enforceable. Others rely on wrongdoers being held accountable. And in the end, if you don’t have operating courts, you’re going to lose a lot of your tax base and you’re going to have even greater demands on the state budget in ways you’re not going to be able to avoid.”

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