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Budget cuts jeopardize health of nation’s court systems

By Amy Yarbrough
Staff Writer

Ongoing budget cuts and a lack of affordable legal representation threaten to make access to justice an impossibility for the average person, a panel of sitting and retired state and federal court judges warned during a panel discussion at the American Bar Association’s annual meeting last month in San Francisco.

Tani G. Cantil-Sakauye, California’s chief justice, said that though courts have weathered cuts in the past, “What’s new is the absolutely intensity of our recession in California.

“We are not dying, but we are certainly on life support.” she said.

In the last five years, California’s judicial branch has been cut by about $1 billion, 22 courthouses have closed and 30 courtrooms have reduced their hours of operation to the public, according to the state Administrative Office of the Courts.

“Because the reductions have been so long and so severe, we are having new conversations across the board with people and partners we’ve never had discussions with – with unions, with business, with civil plaintiffs, with civil defense, with criminal defense, with criminal prosecution – about different ways of how we can maximize the dollar,” she added. “We believe that we are operating in an entirely new environment where we will never see what we saw and had three to five years ago.”

Cantil-Sakauye’s comments were part of a program on Aug. 8 entitled, “Are Courts Dying? The Decline of Open and Public Adjudication.” Also on the panel were W. Royal Furgeson Jr., a retired U.S. District Court Judge for the Northern District of Texas; Wallace B. Jefferson, chief justice of the Supreme Court of Texas; Jonathan Lippman, chief judge of the New York Court of Appeals; U.S. District Judge Norma L. Shapiro, of the Eastern District of Pennsylvania; and Jeffrey S. Sutton, a U.S. Court of Appeals judge for the Sixth Circuit. 

Lippman said that courts in his state have been closing at 4:30 p.m. and 400 employees have been laid off. Even so, there have been some positive signs.

“I think the other branches see what’s happened to the judiciary. I don’t think they necessarily look at it that this is a good thing for their own futures,” he said. “I think they recognize how important the judiciary [is].”

In her opening comments, Yale Law School Professor and moderator Judith Resnik laid out other grim statistics from around the country: There are roughly 4.5 million unrepresented civil litigants in California and 2.3 million in New York. In South Texas, 2.6 million people qualify for legal aid but funding only exists for about 20 percent of them. In the federal system, the number is smaller, only about 400,000, but sequestration has devastated the federal defender program, impacting its ability to represent criminal defendants.

Shapiro said although the federal courts are surviving this year with significant belt tightening, “they are going to fall apart if this continues.

“This is the 50th anniversary of [Gideon v. Wainwright], and it’s sad to say there won’t be people to …hear Gideon’s trumpet in the future,” Shapiro said, referring to the landmark Supreme Court case that guarantee the right to counsel in criminal cases. “One thing we have to do in the short run is convince the people who fund us that what they’re doing doesn’t make sense.”

Although the need for adequate and secure funding was a common thread, the panelists offered somewhat differing opinions on how to maintain access to justice.

In hopes of teaching young people about the importance of the judiciary, California has been working on a program to integrate civics education with the state’s core curriculum for kindergarten through 12th grade.

Furgeson said that civics education would only go so far because people cannot afford lawyers.

“We have priced ourselves out of the market …” he said. “The sad fact is that the middle class and small businesses find our system unworkable and unaffordable.”

Moreover, many courts have opted to institute fees and fines to help fund court services, a trend Lippman called “the worst thing we can do."

“To say that the judiciary is a ‘pay as you go operation’ is so fundamentally wrong,” he said.

Cantil-Sakauye agreed, but said that increasing fees is sometimes the only option to keep courts open. In 2012, for example, state legislators authorized a 20 percent increase in certain filing fees to offset budget cuts to the California Supreme Court and Courts of Appeal.

“We’ve called upon our attorneys. We know it’s a horrible system, and they know it too. And we sat around the table, the plaintiffs’ bar, the defense bar and said, ‘Look, we don’t like this, but what are we going to do?’ And we agreed to fees, and they accepted,” she said. “It is absolutely the worst way to go, it’s a pay to play system … yet we need the assistance. It’s a stop-gap measure.”