The state court system has reasons to celebrate, according to Chief Justice Mark Martin, but adequate funding isn’t one of them.
In late January Martin announced a Celebrate North Carolina Courts initiative to highlight several upcoming milestones, including in 2016 the 50-year anniversary of the unified court system, the creation of the Administrative Office of the Courts, and the establishment of state district courts.
“These are important milestones for North Carolina. Our courts process nearly three million cases each year – cases that help keep our citizens safe, our economy vibrant, and our rights and liberties secure,” Martin said. “I invite every North Carolinian to join in this celebration by learning more about North Carolina’s Judicial Branch and the importance of courts.”
But in the branch’s annual caseload and budget reports released just a few weeks earlier, reasons to celebrate weren’t so obvious.
Here are a few takeaways.
Productivity at the state’s highest court has been a point of concern for court watchers in recent years, as the justices have taken fewer cases and disposed of even fewer through full written opinions.
As the report for July 2014 to June 2015 indicates, the seven-justice Supreme Court accepted just 97 cases for review – continuing that downward trend. Compare that to 2005, when the high court took 204 cases, and 2006, when it took 246 cases.
And the justices issued full opinions in just 29 cases, with another 24 disposed of through per curiam opinions – summary opinions issued by the court as a whole, without attribution to any specific judge. (Other appeals may have been withdrawn prior to decision or dismissed by the court).
Former Justice Robert Orr, a critic of the high court’s recent caseload (see his 2011 Campbell Law Review article), has attributed some of that to the drop in the number of dissenting opinions in the Court of Appeals – which can serve as a basis for an appeal to the Supreme Court.
But some of that is also due to court’s unwillingness to accept cases that involve “substantial constitutional questions,” Orr said, a failure that leaves litigants with little insight as to what constitutes such a question for purposes of making an appeal.
The 15-judge Court of Appeals, on the other hand, is swamped, deciding more than 1400 cases by written opinion over the same period – a caseload way beyond what the Courts Commission intended when it helped create the intermediate appellate court in the late 1960s.
“Before that, a justice on the Supreme Court was writing on average 50 opinions a year,” Orr said.
The point of the Court of Appeals was to alleviate some of that work and create a balance, he added. Now that workload has been largely pushed on to the Court of Appeals.
“In its report, the Courts Commission said that if the workload on the new Court of Appeals exceeded the workload on the Supreme Court, the Supreme Court had a responsibility to reach down and take some cases and bypass the Court of Appeals,” Orr said.
To its credit, the Supreme Court has begun doing at least a bit of that. In October 2014, the justices agreed to review five controversial cases by direct appeal, bypassing the Court of Appeals.
And now that three-judge panels have been authorized to hear constitutional challenges to state laws, appeals in those cases will also head straight to the Supreme Court.
The court system continues to juggle a three-million case annual docket with diminished resources, a function of both budgetary realities during the recession years and lingering legislative misconceptions about the role of the courts in state government.
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 sufficiently is constitutionally based.
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.
What’s often overlooked, though, is that the court system is one of the state budget’s largest revenue generators. 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 2014-15, for example, the courts collected and then remitted more than $676 million to the state and its residents. In return they received $464 million from lawmakers to keep the courthouses open, pay personnel and provide constitutionally mandated services
“The Judicial Branch continues to have constitutionally mandated services that are either unfunded or underfunded,” Chief Justice Martin and AOC Director Judge Marion Warren said in the Judiciary’s Annual Report.
“These services include foreign language access, juror and witness fees, pay plan restoration for assistant and deputy clerks and magistrates, technology advancements, and adding employees based on needs as determined by workload formulas.”
When lawmakers and the governor finally signed off on a funding package, the courts got a little more to update technology and fund operating expenses, but nothing near what was needed – including critical dollars needed to increase the judiciary’s diminishing workforce.
The judicial branch has taken a big hit to its institutional knowledge, with more than 4,000 employees leaving because of retirement, cuts, voluntary reductions in force and other reasons over the past seven years (with another 850 eligible to retire between July 2015 and June 2018).
That has left the courts more than 500 employees short of what’s needed to meet workload requirements as assessed by the National Center for State Courts – “a very unsustainable position,” according to the Chief Justice.
And certainly not a reason to celebrate.