There are those such as Daniel Winslow who believe that, in fact, the poor should be squeezed even further to fund the courts. Even the current retained revenue scheme, if challenged on the grounds of violating separation of powers and impeding access to justice might fail to be found constitutional.
Champion Magazine says it best
Please share widely!
Would the ACLU be interested in this case? I wish Dan Win$low weren’t such a wingnut.
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p>Also in the same Budget Brief from Charles Checkley
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p>Two of the first three are authoritarian measures. That guys living with some childhood traumas.
although the burden on them is certainly more onerous. If you want to contest a traffic ticket, you must now pay a $25 fee, which you will not get back.
How is that constitutional?
Chief Justice Marshall made strong statements a couple of weeks ago, as reported in this Globe article. And she talked about how the cuts from last year, and the year before and the year before that had denied prompt access to the very people that Amber represents.
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p>Chief justice warns cuts put courts at risk
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Of course many of the people that Amber represents are losing access to other social service, mental health, substance abuse, subsidized housing, food stamp and work training programs too, so …………………
Such as disparate treatment, unjust penalization, unfair denial of shelter, violations of the Code of Massachusetss Requlations, etc.
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p>Great laws and regs that are ignored, and without access to court over sight, aren’t worth spit.
AmberPaw, you may be interested by an article that Dan Halston wrote in 2004. It’s Daniel W. Halston, The Meaning of the Massachusetts ‘Open Courts’ Clause and its Relevance to the Current Court Crisis, 88 Mass. L. Rev. 122 (2004). He points out that Article XI derives from c. 40 of Magna Carta, which provides: “To no one will we sell, to no one will we refuse or delay, right or justice.”
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p>Your discussion ignores another constitutional issue: could the courts compel the legislature to appropriate money for them? This isn’t a new issue. In County of Barnstable v. Commonwealth, 410 Mass. 326 (1991), where counties sued for funds to keep open the courthouses the legislature had failed to fund, the SJC refused to do it, but said that it had the power to do it:
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p>(See also 422 Mass. 33, where the court, after a remand, refused to order the Commonwealth to pay up).
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p>Just as an aside, the idea of courts as a profit center for the government goes back a long, long way. I think we’ve come a long way from 1218, when Edward I needed money for his war in Scotland and decided to raise “great treasure” by “causing justice to be done on malefactors”! (Baker, Introd. to English Legal History, p. 17).
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p>TedF
First, as per http://www.nlada.org/DMS/Docum… while that power exists, the SJC is notoriously loathe these days to “fight” with the legislature that funds them. See also http://www.nacdl.org/public.ns… – while the so-called “O’Coin Doctrine” can be argued, that Courts have the right to order themselves to be funded in an emergency, or when “necessary” as a branch of government, not only would this require exigent circumstances, but there is little agreement as to what is “necessary” or what constitutes an “emergency”. I am well aware of this line of cases, but really, since Hancock v. Driscoll it has become rather obvious that there is no stomach for this sort of confrontation at the SJC level – I am unsure whether any member of the Superior Court Bench has the stomach, either, if such a suit was filed, to kick up a ruckus and seek funding even in a crumbling courthouse with buckets to catch the leaks.
…what to do about this. The executive is also a separate branch, but the legislature has power of the purse over them too. Are you suggesting a constitutional amendment prohibiting reductions in the courts’ budgets just like the federal constitution prohibits cutting judges’ salaries? I’m genuinely asking. I sympathize with this diary, but also understand the legislature needs to make some tough calls.
I am not looking for “sympathy”, Chris, but educating BMG that not only is this issue important, but largely ignored with dire consequences.
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p>As to what the “Open Court Clause” requires, and how to meet that requirement, there has not been a hearing – not one – nor a discussion.
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p>A professional staffing study was done, see Staffing Report done by an indepedent professional organization, and per that staffing the Probate and Family Courts are trying to not sink with 66% of the staffing recommended. I would say staffing at at least 80% of what is recommended based on case load would be a reasonable, good start.
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p>Remember – the Court not only cannot turn away cases BUT is the sole protection against government abuse and abuse of the little guy by big business.
The legislature still has power of the purse, though, so I want to know what can be done to restrict their use of that power. I’m not arguing the merits of funding levels with you; I want to know what can be done about it.
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p>2. Make clear to your own legislators that the Judicial Branch does have a constituency – and that YOU are part of that constituency.
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p>3. Determine if YOUR legislator is familiar with the Open Court Clause and the role of the judicial branch in checks and balances, and if not, diplomatically educate them.
Didn’t the Court issue (or leak) some suggestions (as I recall, in connection with the Public Defender or perhaps prison sentencing/funding issue) that they could/would order the release of prisoners and/or hold the lege in contempt if the lege failed to act? This is the perhaps the same topic covered in your above-cited link.
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p>While I appreciate the fact that the Court is “notoriously loathe these days to ‘fight’ with the legislature that funds them”, such a fight may nevertheless be necessary. Presumably no healthy and well-adjusted person wants to fight — and at some point, the consequences of not fighting become so grave that the fight must be waged.
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p>It seems to me that if the Court has the ability to fight this, it then has an obligation to do so. As a divorced father, I am well aware of my need to zealously exercise and defend whatever limited custodial rights I already have before seeking extensions to those rights.
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p>I wonder if advocacy of groups like BMG will be more effective if such advocacy is in addition to and supportive of efforts that the Court is already taking, rather then viewed as prophylactic towards such a fight.
If I’m reading this right, it appears that the Governor is not announcing any additional cuts to the Judiciary’s budget. That’s good news for justice in the Commonwealth.
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p>TedF
and his 9C message asked the legislature to approve extending his 9C powers to the legislature, other constituional officers and the judiciary — not local aide. If these institutions do no come up voluntarily cuts, like they did last year, and do not pass the bill expanding the Governor’s 9C powers, it’s back to the executive departments. Or of course new revenues or more out the rainy day fund.
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p>from Matt Visers Globe piece.
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I admire your passion for your work in the judicial system, but there is a huge whole in this story that you are pretending doesn’t exist.
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p>How many employees are there in the court system and what is the rate of growth in the FTE’s since 2002?
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p>The Court system in MA is not interested in efficiencies, rather the top goal is local politics and patronage.
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p>When is the last time some courts were consolidated?
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p>How about the line item structure in the state budget? Why does every court have its own seperate line item?
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p>The fall-back to any suggestion that the courts stop with ever expanding workforce, or some court consolidation, is “separation of powers”, as if they are immune to the fiscal crisis and entitled to resist cutting costs.
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p>I don’t mean to pull the Howie Carr POV, and I would like to be proven wrong about the number of employees. Still that is an important part of the story behind recommended reductions in the court system during this historic budget crunch.
Folks who use the courts regularly will agree, I think, that the clerk’s offices typically are not hotbeds of efficiency. It’s difficult to quantify this, because as far as I can tell, the courts do not publish statistics about the relative efficiency of various courts and courthouses. And, as Arnold T points out, the Legislature doesn’t help matters by funding each courthouse with its own line item. Surely, we could realize some efficiencies by allowing the courts to allocate their own resources.
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p>So, I agree that while in the short term cuts to the judiciary budget are a really bad idea, in the long term the Legislature needs to give the courts control over their own budget, and the courts need to be more transparent by providing data relating to efficiency at each courthouse.
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p>One more thing the courts could do to improve efficiency both for themselves and for litigants is to adopt electronic filing. I understand that the courts have sunk a lot of money over many years into the “MassCourts” computer system, but the fact of the matter is that as far as I know, there is no court in the Commonwealth that uses electronic filing. I think we could save on everything from labor to office supplies if we move toward a modern e-filing system, such as the federal courts have implemented with great success.
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p>TedF
Badly done, clumsy custom programming. It has, in fact, slowed down docketing and other court functions and not helped. I have lost count of the clerks and other staff who have complained, bitterly to me about Masscourts – and judges as well. Juris is worse; it won’t let events that are not in “its categories” be entered into the electronic docket, so they are not entered even though they exist on the hand written docket.
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p>An example is “remand hearing” – these happen, but juris [a part of masscourts] doesn’t have a category so they are not entered into the electronic docket! Scandalous in my opinion.
The case load keeps going up.
MACAA
(Massachusetts Association of Court Appointed Attorneys)
PRESS RELEASE FOR MORE INFORMATION
FOR IMMEDIATE CONTACT:
RELEASE 2/26/04 DEBORAH SIROTKIN BUTLER
781-641-9939 OR 617-645-9458
Constitutionally mandated court functions must be fully funded by direct appropriation. Contingent funding for core court functions and indigent representation is unconstitutional. Funding public defenders from indigent counsel fees was found unconstitutional on February 12, 2004 in Minnesota, and has been found unconstitutional in other states.
An independent judiciary requires full, secure funding by direct appropriation, as does the sixth amendment right to counsel.
MACAA has never agreed that the courts and judiciary, appointed lawyers for the poor, or the Committee for Public Counsel Services should be funded by indigent counsel fees or probation fees. The Governor’s proposal to use so-called “retained revenue” to fund constitutionally mandated core functions constitutes contingent funding, illegally attempting to balance the Commonwealth’s budget on the backs of the poor. Using retained revenue, once collected, to upgrade dilapidated courthouses would make sense. Holding the third branch of government, the judiciary, hostage to collections of fees from the poor is to hold democracy itself hostage.
The Supreme Judicial Court, however, is to be commended for issuing a uniform Affidavit of Indigency to be used in all courts. Fundamental fairness demands that indigency be determined in the same way, using the same form and same standards, for all litigants.
MACAA will offer testimony in support of full funding by direct appropriations for 6th amendment legal services, and House Bills H4321 (adjustment for inflation of pay rates) and H4827 (supplemental funding for FY 2004), before the Joint Ways and Means Committee at the state house on Friday, February 27, 2004.