Crisis
in our justice system
By
Patrick Kelly
President,
State Bar of California
As
many of you know from my speeches, I believe the current court funding crisis
is the greatest threat to our justice system and access to justice for our
citizens I have seen in my 42 years of practice. I have focused upon this as
the number one issue affecting the public and lawyers in our state and have
made it an integral part of every speech and discussion I have had since taking
office in October. Examples of the carnage caused by these funding cuts
exist everywhere in California - seven courthouse closures in Fresno, four courthouse
closures in San Bernardino County and 10 courthouse closures in Los Angeles County,
just to name a few examples.
But
the real toll is to the users of our courts - the citizens of
California who have a constitutional right to full and fair access to our
justice system. Not only are we losing the neighborhood court system that
provided access to all, but user fees have escalated to the point that we
are moving toward a disastrous pay-for-play system that is certainly not what
the framers of our Constitution had in mind when they defined our rights. Moreover,
the framers of our Constitution could not have envisioned a system where the
rich have access through private judging whereas those less affluent and the
poor have to stand in a line that because of a decline in resources is growing
longer. These cuts have also threatened small businesses, the very engine
of California's economic recovery. The importance of this issue cannot be
overstated. Paraphrasing Alan Greenspan, one of the key elements of business
growth is ready access to a justice system that provides prompt dispute resolution.
Some
argue that despite the budget cuts to the branch over the past few years, the
funding has remained relatively stable due to the use of backup funds. That
statement does not even scratch the surface of the whole story and implies
that somehow the courthouse closures and longer lines don't exist. The
truth is that while other states that fund courts generally spend about 2
percent of their general fund on the court system, in California it is 1
percent. In fact, the share of court funding that comes from the state
general fund in California has fallen from 56 percent to 20 percent
since 2008. As noted, much of the money used to yield the impression of
"stability" has come from redirection of court construction funds into court operations ($891 million since 2008), mandatory spend down of reserves
($500 million), redirection of funds intended for statewide court programs ($414
million) and increases in user fees ($397 million).
Thus
the fact is "stability" has left the court with a decimated
construction and maintenance program, an almost complete loss of reserve funds
necessary for court operations and a much higher cost for access to the long
courthouse lines. And it gets worse. The ability to take courthouse
construction funds is almost over and there is little left in reserves. In
short, the money movement devices have now run out and the state will have to
step up or we have only seen the tip of a much bigger iceberg of courthouse
closures and staff layoffs. All of this leads to the inescapable
conclusion that justice is being denied and the magnitude of that denial is
growing with each passing day.
Given
this disastrous scenario, I have been asked "What is the bar doing about
it?" The answer is the bar as an agency of the government can only take
limited action; however, it is strongly supporting the work of the Bench-Bar
Coalition and the Open Courts Coalition that exists for the sole purpose of
keeping the courts open for the public through increased funding. I am on
the steering committee of the latter group, chaired by Paul Kiesel
and Niall McCarthy, and we are working together to facilitate budget
discussions between the various departments of the court.
More
importantly, we have been regularly meeting with court officials, representatives
of the executive branch and legislators. For example, on March 11, both
the BBC and the OCC traveled to Sacramento to meet with legislators and
support the court by attending the Chief Justice's State of the Judiciary
address. I personally met with many legislators including the chair of
the Assembly Judiciary Committee to underscore the crisis and secure full
funding for our courts. I am pleased to say that everyone with whom we met
understands the importance of the issue to their constituents and agrees we are
at risk of losing many of the benefits of our justice system. They support increased funding for the courts.
The
question remains "Where do we get the money?" That can be
answered in part by using part of the budget surplus we have been told will
exist. However, the real answer is for the executive and legislative branches
to elevate the judicial branch to the very top of their priority
scale. Why? The answer is simple. The court system is the guardian of the rights of all Californians. It provides the only vehicle to enforce
their rights under all of the other programs and agencies the legislature
funds. All of the bills and laws in the world make no difference if there
is no viable court system to enforce them. Thus the separate branch of
government that is our justice system is integral to all other laws and
programs and indeed they cannot exist without it. Stated otherwise,
although only taking 1 percent of the state's general fund, the courts must
remain available to enforce 100 percent of the rights of 100 percent of
Californians no matter what the right or law they are seeking to enforce.
What
can you do to help ameliorate this crisis? Given the magnitude of this
crisis, it is time for all lawyers to stand up and be counted. We must
come together to reach out to the legislature and the executive branch and to
enlist the aid of community organizations in this quest. Now is the time
to call your assembly members and senators and let them know how important this
issue is to their constituents who even now are being denied their
constitutional right to access to justice. Your voice will count and you
will be performing the duty of all lawyers to preserve our justice system.