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Note: This article has been modified to reflect the House of Delegates vote to approve the resolution.

State courts are in a funding crisis, but convincing legislators to spend more money on them will be a tough sell.

That was the consensus of leading attorneys and judges who discussed the financial challenges confronting state courts during a panel discussion on Aug. 7, at the American Bar Association’s Annual Meeting in Toronto.

"We are not crying wolf," said Theodore Olson, the Gibson, Dunn & Crutcher partner who serves as co-chair of the ABA’s Task Force on Preservation of the Justice System. "It is a serious crisis."

That task force, which was formed in 2010 by outgoing ABA President Stephen Zack, recently reported that most state court systems are operating with budgets between 10% and 15% lower than they were in 2007. The task force found that because of cuts:

• 26 states have delayed filling judicial vacancies, 31 have delayed filling judicial support positions and 34 have delayed filling open positions in clerks’ offices.

• 31 states have frozen or reduced judge or staff pay.

• 14 states have laid off court staff.

• 14 states have curtailed hours or cut operating days.

"This hasn’t happened overnight," said David Boies, the Boies, Schiller & Flexner partner who serves as the second task force co-chair. "To some extent, the problem has been obscured because the judges and their staff have done a heroic job trying to cover. We’re now at a point where we’re just stretched too thin."

Identifying the financial problems facing state courts is much easier than solving them will be, the panelists agreed. Court funding has never been a popular cause for either the public or lawmakers, and getting those constituencies to understand the value of a properly supported courts would require the dedication and collaboration of all lawyers, bar groups and business leaders, they said.

The task force introduced a resolution before the House of Delegates urging state bar associations and other local bar groups to document the effects of budget cuts and argue for more money. The house approved the resolution on Aug. 8.

But the ABA cannot stop there, Olson said; it needs to look beyond its membership for allies.

Retired U.S. Supreme Court Justice Sandra Day O’Connor, a former majority leader of the Arizona state Senate, said that legislators would be more likely to take court funding seriously if business leaders make it clear that it is important to them. Lobbying by the general counsel of sizeable businesses could help, she said.

Olson agreed that money talks. "People who are running for office listen to the people who say, ‘I’ll bring you ten checks for $2,500 at you breakfast fundraiser,’ " he said.

Demonstrating to legislators and the public that courts are using the money they have as wisely as possible would be a good strategy, said Mary McQueen, president of the National Center for State Courts. The courts have already applied most of the easy solutions to cutting costs, she said. For example, Utah has moved to a fully digital court reporting system, in which proceedings are recorded and only records that are needed are transcribed; the system is saving the state several million dollars a year. Courts have also raised filing fees.

But these amount to a "drop in the bucket," Olson said. Demonstrating that a fully funded judicial system benefits the economy and nearly every other aspect of society is the best strategy, he said.

"It’s going to require patience, perseverance, commitment and continued work to get the message across," Olson said. "The only way we’re going to be successful is to do this over a long time and not be summertime soldiers." EFFECTS OF BUDGET CUTS ON STATE COURTS

States delaying filling judicial vacancies


States freezing or reducing judicial or staff salaries


States furloughing staff


States furloughing judges


States laying off employees


States raising filing fees or fines


States curtailing hours or workdays


SOURCE: ABAs Task Force on Preservation of the Justice System. Figures cover the past two years.
Karen Sloan can be contacted at [email protected].

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