Court Funding Shortfalls are a Shameful Injustice

H. Mills Gallivan

I have a lawyer friend who loves to avoid ownership by quipping, “Not my problem.” Sometimes he is right, but more often he is just hopeful that the problem will resolve itself without him having to get involved.

The issue of funding for the judiciary is one of those thorny problems that we all wish would go away. It is a problem which we lawyers see first-hand and understand, or of which we are at least cognizant.

“The Economics of Justice” is a new study by DRI, a professional association of 22,000 attorneys of the defense bar. It drives home the point that in most states the lack of funding for the judicial branch of government has reached a crisis stage. The study should be mandatory reading for everyone in America.

The thesis is apolitical and simply highlights a critical funding problem that can potentially affect any individual or corporation. It reports that between 2009 and 2012, courts in 43 states reported budget cuts; 40 reported a budget shortfall; 28 states reported an increase in case backlogs; 23 states reported reduced court operating hours; 22 have raised court fees and fines; and 15 believe that time to disposition will increase.

The authors go on to point out: “The sad reality facing America is that many of our state court systems are so poorly funded that they are at a tipping point of dysfunction.”

It would not be unfair to say that the current judicial funding crisis had its inception in the recent recession.

Almost every state is dealing with significant financial issues. However, it may be myopic to lay all of the blame on the Great Recession.

Most state courts depend on their legislative or executive branches for funding. This reliance puts the judicial funding issue clearly in the crosshairs of political debate. The DRI study states, “The failure of the executive and legislative branches to adequately fund a state court system poses a significant constitutional threat to the very structure of American government. To adequately fund our state court system requires only a little additional funding, but that modest investment will deliver manifold benefits.”

Simply stated, there is a court funding problem because most state legislatures and executive branches do not fully comprehend the significance of the problem and paradoxically, the economic importance of a properly funded judicial branch.

Lawyers understand that our state courts resolve the vast majority of civil, domestic and criminal matters. An effective and efficient state court system provides for the orderly resolution of disputes, which in turn provides the stability needed for economic growth.

Our state court systems are the crucial element in preserving the rule of law and resulting predictability needed for economic growth.

If our state courts are underfunded, we are sacrificing our economic future on the altar of political expediency.

“The Economics of Justice” clearly articulates the case that every dollar invested in a state’s judicial system provides a significant return on investment for that state’s economy.

The bottom line for economic development is that new businesses locate in states with fully functioning court systems to protect the rule of law for the employer and its employees. To be effective, this message must be widely disseminated and clearly communicated to the judicial funding decision makers.

Court funding is everyone’s problem. Lawyers did not create the problem, and we may be the least likely candidates to fix it.

In its 2014 national poll, DRI found that 46 percent of the respondents thought that state courts were adequately funded and 15 percent had no opinion. Thus a majority of 61 percent of those polled were unaware of the problem, much less its scope and significance. One can only surmise how many legislators and executive branch members fully understand the issues at hand.

By way of illustration the South Carolina judicial budget negotiations in 2010 offer some insight into the importance of a unified court funding strategy.

In the 19 months preceding the 2010-11 budget discussions the S.C. court system had sustained budget cuts of 40.75 percent. At the start of the discussion the Legislature was considering additional cuts, which would have resulted in a significant budget shortfall.

State Supreme Court Chief Justice Jean Toal had done a masterful job in 2009-10 of managing the cuts and still delivering justice to the citizens of South Carolina. However, she knew that the South Carolina courts could not weather additional cuts.

Chief Justice Toal organized a coalition to take the business case for court funding to the General Assembly and the governor. The strategy she developed was one voice speaking for citizens, the bar, the state and local chambers of commerce, the manufacturer’s alliance and the state’s largest employers.

For the most part the messengers were not lawyers; and the message was the importance of a properly funded court system to maintaining an economically viable democratic society.

The strategy worked and ultimately the S.C. Legislature voted to fund the courts.

The key was a consistent message from constituents on the vital nature of our judiciary as the third branch of government charged with preserving the rule of law.

What worked in South Carolina may or may not work in other states depending on the politics involved. But the more voices engaged in the effort to maintain an independent and properly funded judiciary, the better.

The citizens of South Carolina should express their concerns to their friends and associates, and most importantly the governor and legislators.

After all, it is their problem too.

H. Mills Gallivan is a Greenville attorney and a past president and chairman of the board of the National Foundation for Judicial Excellence.

Published: The Post and Courier
Charleston, South Carolina
January 19, 2015