Time to Act for Adequate Court Funding is Now, Say O’Connor, Bar Leaders
By Betsy M. Adeboyejo
American Bar Association
Aug. 8, 2011
TORONTO — “We need lawyers in every state to get busy and start advocating for adequate funding of the courts. We need lawyers to get busy and say ‘I’m willing to tackle this in my state’…We need you,” said retired Supreme Court Associate Justice Sandra Day O’Connor to a packed room of lawyers and judges at a program at the American Bar Association’s Annual Meeting yesterday in Toronto.
O’Connor shared wisdom with ABA members looking for suggestions on ways to solve the current crisis in court funding.
“You need to have access to legislative leaders on both sides of the aisle,” she said. “You need to have one-on-one contact with those leaders by people who those leaders will respect. One avenue is to get general counsel of corporations to make those personal contacts because the legislators will listen to those people.”
O’Connor said it’s important that the legislators understand how not adequately funding the third branch of government will cause a delay in justice and that, in turn, will hurt the state economically.
“That’s the pitch you have to make,” O’Connor said. “You have to go back and find specific things for them to sponsor. Identify something already introduced and say ‘This is critically important to us. Please, help me with this,’ and check back. And that’s how you do it.”
O’Connor also suggested that the ABA host hearings in communities, states and in the legislature. “Make sure the press gets there,” she admonished. “Assemble facts, figures and stories that will make your point. Encourage bar associations to get busy and do that. And do it soon.”
With legislatures reconvening in September for another session, O’Connor said, “Now is the time to go back there and get something started.”
Mary McQueen, president of the National Center for State Courts, agreed with O’Connor about forging alliances with the legislature. “If we don’t come as true partners, we just sound like we’re whining,” McQueen said.
McQueen added that though public hearings are a good avenue, the real issue is political. She suggested putting together a political action committee to talk one on one with legislators. She said it worked in Missouri. She said it’s “hand-to-hand combat” and encouraged being blunt. “We will not support you in your next campaign if you don’t ensure sufficient funding for courts.”
McQueen said that state court leaders have embraced reengineering — finding more effective ways to do things. She said it’s best to go to legislators with suggestions instead of waiting to see “how deep they will cut.”
McQueen cited examples of reengineering such as court reporters being replaced in Utah with a 100 percent digital electronic recording system. In Michigan, they have an electronic payment system for civil infractions. The state has also instituted videoconferencing options for pre-trial proceedings and other court proceedings, which reduces transportation costs and security risks involved in transporting prisoners from a secure facility. “How do we leverage this into other opportunities?” McQueen questioned.
O’Connor said it’s good to point to success stories. She said some states have tried increasing filing fees to help the budget crunch.
“The problem is, the justice system, unlike a toll road, is something we depend on to provide us constitutional protection regardless of ability to pay,” said David Boies, co-chair of the Task Force on Preservation of the Justice System. “You have to be conscious of enabling people who really can’t afford those fees.”
Co-chair Theodore B. Olson said the judicial system already is stretched too thin. “[The courts] are making themselves more efficient, they are economizing, they are doing all those things people might suggest, but those things are a drop in the bucket. They are not going to solve the problem.”
Olson said it’s important to discuss innovative ways for the courts to improve, but “we have to be careful to understand that this can be used as an excuse by members of the legislature.” Olson said he is concerned that the legislature will continue to cut and stretch the courts while denying people who need it access to justice.
He asked that members of the ABA read the Crisis in the Courts report that revealed vivid stories of the adverse impact on people who need the protection of the courts the most.
“We have to get members of the legislature to understand it’s important to build roads, and it’s important to have schools, but unless we have a justice system all those things collapse,” Olson added.
Rod Snow, president of the Canadian Bar Association, suggested getting outside endorsements to fuel the underfunding message. “If nobody outside the bar is listening or saying yes that’s important, I fear for our ability to move legislators, at least in my country.”
Snow also suggested ranking states with the worst cuts.
A member of the audience from Austria said he didn’t understand why people and not the state received punitive damages. He suggested it may be something to consider. Members on the panel thought it was an innovative idea to explore.
Other ideas included targeting contributors of legislative campaigns, improving adult education about the value of courts and doing commercial ads demonstrating the devastation of the lack of funding. A judge from Guam said the people who use the court system are the best lobbyists for continued funding.
Other suggestions included lawyers starting a grassroots mission by going out to speak at Rotary Clubs and other organizations about the crisis in the courts — similar to organizing a political campaign.
Olson said the crisis in court funding didn’t happen overnight and will not be resolved overnight. “It’s going to take commitment, patience and perseverance,” he said. “We have to do things over a long period of time and not be summer-time soldiers.”
Stephen N. Zack, president of the ABA, appointed the Task Force on Preservation of the Justice System a year ago. A resolution encouraging state and local bar associations to work with local governments to address and respond to funding shortages will go before the association’s House of Delegates Monday.
“This is the number one issue facing our country,” Zack said. “Can you imagine America without an independent court system?
“I wonder if the Supreme Court columns would actually still be there if those four words that it holds up ceases to exist. ‘Equal justice under law’ —that’s all it says when you walk into the Supreme Court. It seems simple: we’re going to make sure those words remain there and that the courts have the ability to protect us all.”
ABA President-Elect Wm. T. (Bill) Robinson III said the issue is his top priority during his upcoming presidential year. “The foundation has been laid. I want to assure everyone that the American Bar Association is intensely committed to this issue.”
“We have our marching orders,” said Jon L. Mills, dean emeritus of the University of Florida Levin College of Law and the program’s moderator. “You can have the greatest constitution in the world, but without courts it doesn’t matter.”