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From the President

Crisis in our justice system

By Patrick Kelly
President, State Bar of California

Patrick KellyAs 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.