Making the "Pain of Real People" Part of Courts’ Budget Arguments

Stressing the importance of “due process” and other constitutional concepts in discussing the courts’ budget needs is important, as far as it goes.  However, courts must drive home the effects of lowered court budgets on the lives of people and on businesses.

Alexander B. Aikman
Former Court Administrator and Consultant to Courts

“Behind the angst of state budget jargon is the pain of real people” (Baker, 2011).1 That is the opening sentence in a 2011 California weekly newspaper article about midyear budget cuts on top of the cuts already imposed in June. Courts need to start putting the “pain of real people” in every press release, reporter-generated story, and argument to funding authorities against more budget cuts. The pain of real people, preferably expressed in their own words, offered as representative of the thousands impacted, will help voters and legislators understand why budget cuts for courts are different than budget cuts to the roads department or even law enforcement. Courts need to present a gallery of faces that people can see and voices that they can hear to emphasize why reductions in courts’ budgets hurt everyone. Court spokespeople have to sell the sizzle!2 The “sizzle” for courts is the impact of budget cuts on real people and businesses. The voting public that will influence legislators is not very concerned about the impact of cuts on judges, staff, lawyers, and “trials.”3 They may or may not grasp the importance of policy arguments about access to justice, due process, “delay,” and checks and balances. But the public cares about and will respond to their neighbors being hurt. They will understand the loss of justice if presented through the stories of litigants and their families or employees.

An effective article about the impact of staff cuts in the Sacramento, California, Superior Court made policy arguments against cutting court budgets, but they were woven around the story of Scott Allen and his son. The boy’s mother had legal custody and said she would be moving soon to the Midwest. Allen was trying to file a motion for custody and to block the taking of his son out of state. Allen and his son waited at the courthouse for four-and-a-half hours without getting to the counter to file his papers. The article ends:

With security personnel telling him he had to take his son home, Scott Allen left the courthouse at 3:30 p.m. Monday, a half hour before closing time. He said it didn’t really matter, that his number was so far down the list there was no way he was going to be called Monday anyway. “The tax money that we give should be funding this,” Allen said (Furillo, 2011).

A judge or court administrator saying the same thing would not carry the same weight as Scott Allen.

Retired Supreme Court justice Sandra Day O’Connor told a reporter for the ABA Journal at the American Bar Association’s 2011 Annual Meeting: “‘No one, not even lawyers and judges, understands what a financial bind the courts are in.’ . . . As a result, she said, ‘They’re not ready for the political fights’ that may be necessary to assure that legislatures fund the courts at adequate levels. We have to wake them up’” (Podgers, 2011). The Great Recession and the resulting cuts in courts’ budgets have pushed many courts to the edge of viability.4 Courts need to add to the arsenal of arguments for adequate funding and against further cuts.

In the wake of widespread budget cuts, judicial leaders across the country, both local and national, have used scores of newspaper and magazine articles to make the case urged by Justice O’Connor. The American Bar Association and some state bar associations Making the Pain of Real Peoplehave appointed special committees to document the impact of cuts and argue for increased funding. The materials available through the American Bar Association’s Task Force on Preservation of the Justice System (2011), in particular, are excellent and make the intellectual case very well. Likewise, the National Center for State Courts has a number of useful materials.

To date, however, this effort has produced limited-to-no restoration of funds or staunched the possibility of more cuts. Part of the reason is that the arguments do not make an emotional connection to the readers or viewers. Courts are fighting for funds and for the public’s attention and sympathy with all other government agencies. They are fighting images of children without food and clothing, of seniors without heat, of children’s education being compromised, and of the disabled and mentally ill being denied needed support. They also are competing in a political environment in which judges and courts increasingly are attacked by state legislators and some national political figures for a wide range of perceived transgressions.

To compete with these images, courts offer concepts: access to justice, equal protection, delayed justice, and maintaining the basic guarantees of our state and federal constitutions. All of these are sound and legitimate reasons why courts cannot be weakened below a certain minimum level. These arguments certainly should not be abandoned or minimized in budget requests or ignored in press releases and reports. They should be augmented, however, first, by the type of data generated by the judiciary of Georgia and the Los Angeles Superior Court. Both have done studies showing significant negative impacts on revenue when courts cannot operate at full capacity (Skaggs and da Silva, 2011). Yet many, if not most, legislators do not find these arguments compelling or believe that they are treating a coequal branch of government equally if each branch takes the same percentage reduction.5 To date, logic has not changed their minds.6

There are two difficulties in relying solely on these types of arguments, however. First, many people have a limited understanding of history and the basis for our tripartite government and do not have a good grasp of the subtleties of the role of courts in protecting society and the rule of law. Many have strong opinions about one or two cases, or maybe a judge, and believe that is sufficient to support budget cuts for courts.7 The implications of those cuts for everyone are not understood or considered.

Second, concepts do not compete well for public concern when placed against undernourished and undereducated children, the disabled, and even potholes in roads. Courts need new ways to help make their case. Two seldom-used approaches need to be added to the arsenal.

The first is a little-emphasized aspect of the policy arguments now being made: Justice degrades with delay. The degradation of the courts’ core responsibility—justice—is a unique consequence of delay in courts that is not found when there is delay in the work of an executive-branch agency. Further, budget cuts of the magnitude being imposed on many courts today inevitably mean staffing reductions, which exacerbate any delay that otherwise exists because of laws, rules, or local practice.

How is additional delay in a court different from additional delay in an executive-branch agency? If someone has to wait longer to talk to staff in the DMV, in the end, the license or vehicle registration that person receives has the same value it would have had if the customer had not waited longer in line. Delay in filling a pothole may be an inconvenience and possibly damage a few cars, but in the end the repair will be the same and as successful as if done months earlier.

When a court is underfunded and case resolution and the concluding paperwork are delayed, the final judgment looks the same, but the justice a litigant receives months later is not the same. The parties’ positions and public safety may be seriously compromised by the delay. Further, statutes and court rules impose firm deadlines for certain actions. Failure to file a document, such as Scott Allen’s problem, may destroy a right that the law provides. A landlord may get the same eviction ruling at the end of six months rather than two months, and the written judgment provided after another two months will contain the same words, but in the meantime the landlord likely will have suffered serious economic damage that cannot be restored by a delayed eviction order. A mother and children who cannot get a timely court hearing to establish their right to support may eventually get the requested order and judgment, but that judgment cannot cure the deprivations or difficulties the family suffered in the meantime. If evicted from a residence or the children are poorly fed for four months, no money can change that. Justice is denied in each of these cases.

The underused approach is associated with the examples just given: Courts need to start featuring individuals and businesses hurt by budget cuts as part of their justifications to either increase their budgets or limit cuts.

Courts have to start looking outward, not inward, as part of their budget justifications. If a press release or reporter-generated article focuses on how a budget cut affects judges or how many staff positions are eliminated or left vacant, the public and legislators will yawn. All of government can issue press releases about the loss of “$X,” or “Y%,” or “Z staff positions” (Schelzig, 2011). Who in the public or even in the legislature has any idea what those cuts mean to the level and quality of court service? Focus on the customer! Talk about the impact on the customer and talk in specific terms, not in generalities such as “cases will take longer to be completed” or “waiting time in line will increase.” These two statements—and others often made—may be true, but they have no impact on the public or on legislators. During cutbacks, people have to wait longer on line at the assessor’s office and the department of motor vehicles, too. Why should a member of the public worry about longer lines at court? So what if a civil case involving two businesses must wait 18 months for a trial when formerly it took only 10 months? Ask a small business owner to explain it by getting specific in a press release or budget justification about the impact on the business and her employees because now she has to wait an extra 8 months to find out if she will be paid by the defendant.

Making the Pain of Real PeopleFollowing are a few examples that illustrate the effective use of anecdotes.8

In a New York Times article, reporter John Schwartz (2011) wrote:

“The justice system’s funding has been decreasing in constant dollars for at least two decades,” said David Boies, co-chairmen of a commission formed by the American Bar Association to study court budget issues. “We are now at the point where funding failures are not merely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.

Wayne and Kristy Haggie of Nashua, N.H., would agree. In June last year, they persuaded a judge to grant them visitation rights with their two children. Ms. Haggie’s parents had assumed child-raising duties during a financial rough patch . . . and then refused to give the toddlers back. With the judge’s ruling, the Haggies assumed that they would be seeing the children again immediately and regaining full custody before long. They borrowed $500 from Mr. Haggie’s relatives for a trip to Wal-Mart to buy the toddlers clothes and supplies.

“We got everything set,” Mr. Haggie said. “And then we sat there.”

The judge’s order was not mailed for three months—an eternity in the life of a child. . . . . Between that delay and others while setting up visitation arrangements, the Haggies say, they have lost precious bonding time and been deprived of important moments.

“We missed our daughter’s first steps,” Mr. Haggie said. “We missed her first day of preschool.”

The article continues with some of the policy arguments and comments by judges and lawyers, but concludes:

Meanwhile, the Haggies are getting more regular visits with their children, now 4 and 5 years old, and are still working through the process of gaining full custody. Making the Pain of Real People

But much has already been lost, Ms. Haggie said. By the time they came, the clothes didn’t fit them anymore.

The criminal justice side of courts also is impacted by cuts even though many courts note that criminal cases will continue to get priority as staff positions are cut, clerk’s office hours are reduced or, in a few instances, courtrooms closed. Consider the following from an article about inadequate updating of criminal records (Dolan, 2011).

The criminal records system California relies on to stop child abusers from working at schools and violent felons from buying guns is so poorly maintained that it routinely fails to alert officials to a subject’s full criminal history. . . . .

[Dennis Henigan, president of the Brady Center to Prevent Gun Violence, said:] “Every record missing from the system could be someone who is too dangerous to buy a gun.” . . . . Last month, California’s inspector general estimated that 450 inmates who had completed their sentences but were still “a high risk for violence” had been released without supervision from parole agents. In some of those cases, prison officials relying on the faulty database didn’t know the inmates had previous convictions and were supposed to be strictly supervised. . . . .

[Discussing a recent roundup of 1,200 guns from those who obtained them improperly, the article continues:] officials acknowledge that they know of at least 34,000 guns—1,600 of them military-style assault weapons—still in the hands of people prohibited from owning them.

Making the Pain of Real PeopleEveryone in courts knows that the incomplete records are not the sole responsibility of court personnel not keeping up with disposition data entry, but we also know that courts contribute to this problem. Staff cuts exacerbate the problem, and courts have to make that point.

Compare the impact of these stories to “people will have to wait up to an extra hour in line for service” and “trials will be delayed.” There are thousands of stories like these in every court. The stories should be told. The ways to generate them are known but bear repeating.

Give the public and politicians word pictures that show everyday-life impacts. Lots of them! Staff and judges know many of them. They have to flag them as they arise and let the chief judge or court administrator (or the court’s PIO) know about them. In addition, periodically send staff or volunteers out into the clerk’s office and courtrooms to listen and talk to people. Ask members of the public with stories to come to the courthouse for a panel presentation for the media to share their stories. Set up a panel of attorneys to tell their clients’ stories (not theirs). As others have said in a different context, “if not you, who?”

Steer your beat reporter from a court case to looking for these stories. The stories exist; a reporter will find them. Talk to newspaper editorial boards and news directors at local television stations about the issues and solicit their help. Some judges and administrators are sure that their local newspaper editor’s goal is to find or create stories that paint judges and the court in a bad light. Maybe so in some communities, but even those individuals want government to work well (or better). The response might surprise you.

Ask your local Chamber of Commerce or other business-oriented group to identify members who have been hurt by slowed staff work (e.g., banks waiting for proof of judgments) and delayed proceedings, either in writing or through a series of “hearings,” such as those the California Chamber of Commerce held in 2011 (Miller, 2011a). Concern among the business community may catch a legislator’s ear faster than a young couple’s problem in a divorce proceeding.

Establish or reinstitute an “invite your legislator to court” program, only do not put them in the courtroom all day. Plan at least half of their time in the halls and the clerk’s office and invite them to watch, listen, and talk to the people there.

The judiciary’s share of either a state or local budget normally is somewhere between 1 and 3 percent. Steven Zack, a former president of the American Bar Association, notes the consequences of recent budget cuts: “Without a working court system, our very democracy is at stake” (Miller 2011a). Courts do not need to argue against budget cuts—a foolish attempt in today’s economic conditions—but for not crippling their ability to fulfill their purpose. Personalized stories will lead the public and funding authorities to understand the true cost of the cuts much more effectively than “we can’t provide justice.”