What Judges Say about State Court Funding and Judicial Independence

Article excerpt

From time to time Judicature publishes the views of judges on timely issues affecting the courts and the administration of justice. It may be an issue affecting the federal courts, the state courts, or both. Readers are invited to submit topics they believe should be addressed.

The first topic was the Feency Amendment (see July-August 2004). This issue we consider state court funding. We invited Oregon Chief justice Wallace P. Carson, Jr., Wyoming District Judge Hunter Patrick, and Chief Judge of the Iowa Court of Appeals Rosemary Sackett to discuss the funding process in their states, the effects of inadequate funding generally, and the impact of the funding process on judicial independence.

Wallace P. Carson, Jr.

As one element of the doctrine of separation of governmental powers, judicial independence usually is viewed as both an abstract and an assumed proposition. Often, it is considered only in terms of decisional-not fiscal-independence. The public has grown to expect not only that impartial decision making will disappoint: litigants about half the time, but also that courts will continue without interruption to provide accessible forums for resolving disputes and administering justice. But, as Justice Anthony Kennedy remarked in October 2003 at the dedication of AJS's new headquarters, "[JJudicial independence is threatened not just by active hostility but by benign and unconscious neglect."

In the spring of 2003, Oregon was forced to consider the "abstraction" of judicial independence in a very concrete way. In the wake of over $50 million in budgetary reductions to Oregon's court system, more than a quarter of Oregon's judicial work force was reduced by lay offs, frozen vacancies, and reduced work hours. More notably, however, for a full four months all state courts were closed on Fridays, and the staff remaining received a ten-percent furlough of their normal work hours and salary reduction. During that time, Oregon's trial courts delayed processing all small claims cases, all post-conviction relief cases, and all non-person misdemeanor and certain non-person felony prosecutions. Run-of-the-mill civil cases proceeded barely, if at all.

Those are the stories that catapulted Oregon, if only briefly, into the forefront of the growing national debate about the financial aspects of judicial independence. But there are other, more hopeful facets of the Oregon experience. Those also deserve public attention, for they provide the keys to meeting such challenges in the future. First, we received steadfast cooperation not only from the presiding judges and trial court administrators who bore the brunt of implementing the plan in its most painful aspects, but also from the efforts of our dedicated court staff who performed more work in less time for reduced pay.

Second, the prosecution, defense, and private bars put forward their best efforts, consistent with their fiduciary obligations, to help manage the crisis and look for innovative solutions. And, third, the Oregon Legislative Assembly intervened and played an active role in attempting to mitigate the effects of the budget cuts and to redirect at least some of the state's limited resources to the courts. In doing so, the legislature had before it not only the usual suspects (judges and court administrative staff), but also individuals representing interests not traditionally seen as having the most direct stake in court operations, people such as sheriffs, police chiefs, and victims' rights advocates.*

To be sure, the effects of those four months in early 2003 were severe and still are being felt throughout Oregon. However, they would have been much worse were it not for the banding together, for a time, of all those who work in and around, and rely upon, the courts. Chief Justice Veasy of the Delaware Supreme Court got it right when he stated that the "desire to preserve judicial independence is not an issue; it is a given. …