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From the President

Biggest victim of budget cuts: The rule of law

By Jon Streeter
President, State Bar of California

Jon StreeterNo doubt most of you saw recent news footage of mass demonstrations and civic discord in Greece. Because that country is the cradle of democracy, I found Michael Lewis’ account of the state of Greek civic society in his recent book, “Boomerang: Travels in the Third World,” to be especially disturbing. Although the core of the book is about financial issues, Lewis ― as astute as anyone writing today on broad cultural and ethical trends ― captures something important that goes beyond the topic of money. He describes a country in which public spending has long exceeded its revenue base, but he also finds corrosive cynicism and flouting of the law. The mistrust Greek citizens have for each other and for their civic institutions, in Lewis’ telling, has had a profound impact on the revenue side of their country’s budget equation. Virtually no one pays taxes. Almost all commercial transactions take place off the books, in cash or in shadow accounting systems designed to avoid the tax collector’s records. Within the government, no one takes tax enforcement seriously. And in the rare cases where tax enforcement actions are initiated, the courts process cases so slowly that the proceedings become, in effect, tax holidays for anyone who is targeted. In short, Lewis gives us a snapshot of a society in which the rule of law has broken down. Tax delinquency is a barometer of that breakdown, but the underlying cause is lack of respect for the authority of law.

Without wanting to overdramatize or suggest imminent insolvency, I believe that Lewis’ account of the Greek financial crisis has some relevance to our current crisis in court funding. I have written and spoken about this topic a great deal already in my term as State Bar President. Just to recap, the numbers are stark and compelling. Four years ago, the judicial branch budget was $3.1 billion, less than 1 percent of state’s general fund. Today, it is $2.4 billion, down by 30 percent. This past year alone saw cuts of $350 million. Of the final gap of $1.1 billion that was required to balance the state’s 2011 budget, passed in June, nearly a quarter came from the judicial branch’s tiny fraction of the general fund budget. Ninety percent of the cuts were to trial court operations. Some trial courts have already reached the stage where layoffs, reduced hours and courtroom closures had to be implemented. Most are not far behind. Unlike the trial courts, the appellate courts have no reserves; and for them, every dollar of cuts will necessarily translate into delays. One way or the other, especially if the trend continues with more cuts next year, the day of reckoning is right around the corner for the entire judicial branch. At the very least, civil cases will slow to a crawl. Not since the early 1980s, when every civil litigant could expect a trial date no sooner than five years from filing a complaint, have things been this bad. Court services that people depend upon, especially the neediest among us, will be eliminated. Some citizens, desperate for help right away ― victims of domestic violence, for example ― will have no recourse at all. Business confidence, which fundamentally depends upon certainty and predictability, which is what the rule of law provides, will take a hit at the worst possible time.

As a separate and co-equal branch of government, the judiciary should never be expected to bear a disproportionate share of the cuts needed to bring the state’s budget into balance. That ought to be a governing principle. If, in any fiscal year, the average cuts to the executive and legislative branch are 5 percent, then that percentage must be an absolute cap to the judiciary. A better appreciation of this basic point of civics ― coequal means coequal ― might have prevented the crisis we now face.

But even though a greater degree of constitutional respect for the judicial branch might have avoided the current budget crisis, I worry that something more serious could be at work here. The fiscal assault on the judicial branch in the most recent round of budget-cutting, though perhaps not intended by those shaping the budget, may simply reflect a declining level of respect among our citizens toward courts and the very idea of the rule of law. Among many, courts are no longer Olympian symbols of dignified authority and respect for law. Anyone who has picked a jury recently knows that, these days, the vast majority of our fellow citizens form their impressions of the court system from popular images on television. For them, what happens in court is nothing more than a form of professional wrestling. In the mode of Judge Judy, judicial officers are expected to be rude and heavy-handed. Litigants come to court as if they are game contestants, for the thrill of it; they expect their justice to be harsh, delivered instantly, with no deliberation, and often accompanied by an angry scolding. Nothing serious or dignified happens in these fantasy courts. Respect, by anyone toward anyone else, is non-existent. And the rulings are arbitrary, like a roll of the dice in Vegas.

These disproportionately influential images of small-claims courts that operate only as props for television entertainment are unfortunate, but they tap into something deeper in the national pysche. More than a few serious commentators in recent years have noted disturbing trends in the justice system. Some point to a general decline in the seriousness with which witnesses take the testimonial oath. Others point to more superficial things like the casually disrespectful manner of dress among many people appearing in courts these days. And then, of course, there is the persistent critique ― at odds with any sober assessment of reality, but nonetheless a popular idea ― that judges are nothing but politicians in black robes, ruling based on ideology or personal predilection.

Not only has the level of popular esteem for our courts declined in recent years, but the judicial branch is today more vulnerable than ever to budgetary raids by the political branches. Ironically, the branch is more vulnerable today than ever before because of the progress it has made in bringing about reform designed to better meet the needs of citizens and to promote efficiency and cost savings. It was only a few decades ago in California that the judiciary was comprised of a hodgepodge of 768 different courts, with more than a dozen different classifications of trial courts, each having different, often overlapping jurisdiction. This byzantine system is unrecognizable to lawyers today, but what most of us thought of as a terribly inefficient system of superior courts, municipal courts and justice courts was actually a modern improvement.

The advent of trial court unification changed everything. It created a single class of trial judges, with one court in each of the 58 counties. An essential feature of our system of unified trial courts was the ability to assign judges much more flexibly across functional areas, which encouraged innovation in creating new types of courts designed to meet the specific needs of court users. All kinds of specialized courts came into being ― family courts, dependency courts, juvenile courts, drug courts, veterans courts, to name some of the best-known ― all with the mission of providing specialized services. And to deal efficiently with large numbers of unrepresented litigants, collateral support services, such as self-help centers and translation services, were developed. For the first time, our courts began to organize themselves around the needs of users. In essence, we saw an evolution toward more citizen-centered courts.

But along with court unification and the innovations it spawned came unitary funding of court operations at state level. No longer were counties responsible for funding the courts. The state took over that responsibility with the objective of providing uniform justice around the state. Then, following transfer of fiscal responsibility for court operations from counties to the state came the transfer of ownership of all court facilities from counties to the state. When all this was done, the total cost of running the court system as a proportion of the state budget had not appreciably changed, but that cost was consolidated from hundreds of disparate places shared between the counties and the state into a single very large budget number at state level ($3.1 billion as of four years ago, as noted above).

Recent experience clearly suggests that consolidating funding responsibility for the courts at state level, and creating a single line item available to budget cutters, has proved to be an irresistible target for the political branches. That is the political reality today. The most effective way to deal with this reality is for the judicial branch to forge a sense of partnership and interdependence with the political branches, as Chief Justice George did, and as Chief Justice Cantil-Sakauye continues to do. We lawyers have a stake in this, too. We must serve as advocates for the judicial branch. Courts have no natural constituency. Indeed, having a constituency is antithetical to the fundamentally independent role of the courts. But no one is more familiar than lawyers with the impact of further budget cuts on users of the courts. And no one is in a better position to explain those impacts than us.

My own view is that the gradual dismantling of our judicial system threatens to tear at the fabric of our society in ways that we ought not risk. The inevitable effect of further budget cuts will be to stifle, if not destroy, the evolution of the judicial branch toward more citizen-centered courts. Virtually every one of the innovations that trial court unification brought about is at risk. The advent of specialized departments has not only made courts more efficient, it has also made them far more accessible and responsive to the citizens they serve. The elimination of self-help centers and translation services will mean that judges will have to take more time dealing with litigants who are unable to navigate the judicial system on their own, creating congestion and delays. But most fundamentally, what is at stake is the trust and confidence citizens have in their court system. If courts are viewed as slow, inaccessible and forbidding, that will undermine the respect and confidence we need for their proper functioning. It will contribute to a feeling that courts are only for the wealthy; that the average citizen need not bother with justice; and, ultimately, it will breed contempt for the authority of law. With a climate of civil resistance beginning to surface in many of our communities, now is not the time to go down that road.