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Lawyers, Leadership and the Judicial Branch Funding Crisis

Posted By Administration, Wednesday, May 08, 2013
Updated: Tuesday, May 13, 2014

President's Message, May 2013

It is axiomatic that the judicial system is the one branch of government that the largest number of people come into contact with in the course of their daily lives.  Access to the judicial system, and the ability to seek redress through the courts, is an integral part of our system of government.

Attorneys take an oath to preserve the Constitution & to maintain respect for the courts. (Bus. & Prof. Code §§ 6067 & 6068.) The State Bar and its members are subject to the control of the California Supreme Court; and all State Bar members are officers of the court. (California Constitution, Article VI, §9; Bus. & Prof. Code §6001.)

Attorneys are charged with a professional responsibility to preserve and ensure the effective access to the courts and to justice.  The ABA encourages attorneys, in their leadership role as public citizens, to seek improvement of the law, access to the legal system, effective administration of justice and the quality of service rendered by the legal profession.  (ABA Model Rules of Professional Conduct, Preamble.)

In The Leading Lawyer, A Guide To Practicing Law and Leadership (2009, Thomson Reuters/West), Robert W. Cullen asserts:  “Leadership is our direction, our future, our calling.  Leadership is an imperative, it is our challenge.”  (Cullen, The Leading Lawyer, p. 147.)

The foregoing, as seen in the context of the current judicial funding crisis, emphasizes the opportunity for attorneys, as officers of the court and as citizens of our communities, to act in a leadership capacity in order to support and advocate for a strong judiciary, including adequate and effective funding of the courts, to ensure open and meaningful access to the legal system for all clients and citizens, and to support the operation of a healthy system of judicial administration.

Traditionally, the Judicial Branch budget accounted for 2.5% of the entire State Budget.  Over the past five years, the Judicial Branch’s share of the entire State Budget has been reduced to 2.1%.  The Judicial Branch has experienced overall funding reductions of $535 million in the past 5 years.  Historically, the Judicial Branch budget was funded through a combination of funds derived from the State’s General Fund and other funds, such as grants and fees.  The General Fund share of the Judicial Branch budget has been reduced from 56% to just 20%.

The resulting funding gap has been offset by dramatically increasing court related fees, on the one hand, and by ‘sweeping’ local court reserves and building funds on the other hand. Indeed, over the past five-years, in order to prevent catastrophic shutdowns of courts, court user-fees and fine assessments have been raised, and statewide courthouse construction project funds were diverted to court operations. As a result, most statewide construction projects have been delayed, and many terminated.

The residents of our State face the looming specter of a court system that has been reduced to a ‘fee-based’ service.  This is an intolerable prospect for the third, co-equal branch of our democratic system of government

The negative impact of the funding cuts to the Judicial Branch on a statewide basis is accelerating.  Since 2010, 61 courthouses have been closed; that number is likely to climb to at least 70 in the next year. Branch courts have been closed in 25 counties. Statewide, 175 courtrooms have been closed.  Furloughs averaging one day a month have been adopted in 20 counties. Courts related to specific problem areas, such as drug diversion courts, have been closed in at least 18 counties. Lengthy delays for hearings in significant legal matters such as domestic violence calendars and child custody mediation are increasing. Clerk’s office hours have been reduced; small claims hearings and traffic court matters are subject to lengthy delays. The economic impact of delays in the resolution of both personal and business disputes is undisputed, if not readily calculable.

Traditionally, the manner in which Judicial Branch funding has been allocated to the different county trial courts has been on a pro rata formula.  Unfortunately, over time the pro rata formula has resulted in certain inequities in funding for certain counties, and has led to disparities in the scope and quality of services available for the residents of the 58 counties.

In order to address concerns of the Governor and the Legislature, the Judicial Council formed a Trial Court Budget Working Group (“Working Group”) in the Fall of 2012. The primary purpose of the Working Group is to advise the Administrative Director of the Courts on the preparation, development, and implementation of the budget for the benefit of all of the trial courts statewide.  The immediate task of the Working Group has been to devise a method to provide roughly equal access to the court system on a statewide basis.

On April 26, 2013, the Judicial Council unanimously adopted a new funding allocations process for trial courts, based on a weighted workload allocation formula instead of the existing pro rata formula. The new Workload-based Allocation and Funding Methodology (“WAFM”) represents a tectonic change in the trial court funding allocation process.  Without getting into the weeds as to the details of the weighted workload allocation formula, the new allocation process will shift current baseline funding from some courts to others. The WAFM will apply to all new funding for the trial court system.  The revisions to the traditional baseline funding methods will be phased in over a 5 year period.

Certain counties, including the Santa Clara County Superior Court, will experience a decrease in funding under the new allocation formula.  Notwithstanding this, the WAFM has the support of those courts which will be experiencing a decrease in funding under the new formula, including the support of Santa Clara County Superior Court Presiding Judge Brian Walsh.

The only certain means to negate the impact of the new allocation funding formula on the Santa Clara County Superior Court is for the Legislature to increase the overall funding to the trial courts in the Judicial Branch budget.

The Governor’s 2013-2014 Proposed Budget, released in January 2013, anticipates a further $200 million dollar decrease in trial court funding.  The Governor’s Proposed Budget is currently the subject of on-going Legislative review hearings.  Surprisingly, it also now appears that there will be an unanticipated surplus of as much as $3.5 billion available as the Legislature reviews the 2013-2014 Proposed Budget.

It is incumbent on attorneys to act in their inherent leadership role and to support restoration of funding to the Judicial Branch so as to provide meaningful services and access to the courts for all residents of the State of California. This includes:  restoration of the $150 million permanent reduction in the 2011-2012 judicial branch budget; elimination of $125 million in automatically triggered cuts to general fund allocation to the judicial branch; repeal of the 1% reserve fund limitation/ceiling; and funding for necessary court facility construction projects.

“[L]eadership for lawyers is ‘[t]he process by which an individual or group influences others to achieve positive, ethical change.’” (Cullen, The Leading Lawyer, p. 13, quoting Dean Donald Polden, Santa Clara University School of Law.)

Now is the time to act to facilitate a positive change:  contact your local state legislators; and urge them to restore the cuts to funding of the Judicial Branch.

Advocate for your clients and for all residents of the State of California, so that they can have meaningful access to the courts in order to seek enforcement of their rights and to seek remedies for their disputes.

Advocate for the integrity and the vitality of the Judicial Branch.

Advocate now.

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