The Pew Charitable Trusts hosted a webinar last month with an eye toward helping courts and civil justice stakeholders secure funding to assist with court access during the COVID-19 pandemic. The details, including the link to the webinar recording, can be found here.
The federal judiciary has asked Congress for $36.6 million in supplemental funding to work through the coronavirus pandemic. The money would be used for cleaning courthouses, enhanced medical screening, information technology updates, and other IT infrastructure, among other things. The judiciary is also seeking new legislation to toll certain bankruptcy deadlines, add new temporary judgeships, and protect litigants and detainees from unnecessary coronavirus exposure.
The letter setting out the requests is here.
As it does every year, the Administrative Office of the U.S. Courts has propounded a budget request to Congress for the upcoming fiscal year. The new request seeks a 4.4% increase in the overall judicial budget, with the money helping to cover Congressionally approved judicial pay raises, updating older facilities, and implementing federal legislation concerning the courts. More money is also needed for base salaries because many federal judicial vacancies — especially at the district court level — have been filled over the past year.
But that didn’t stop the reporters and editors at Bloomberg Law from telling us what the increase is really about: Donald Trump. In a story titled, Judiciary Requests More Money for Trump Judges, Bloomberg asserts:
President Donald Trump’s judicial appointments are among the factors contributing to the federal judiciary’s request to Congress for a 4.4% increase in its budget.
Trump has moved aggressively to fill the federal judiciary with conservatives. So far, that’s resulted in 188 judicial appointees to federal district and appeals courts, and two justices on the Supreme Court: Brett Kavanaugh and Neil Gorsuch.
The judiciary’s requested funding boost for the next fiscal year takes into account money needed to provide salary and benefits for a higher-than-expected volume of judges confirmed and their chambers staff, a judiciary spokesman said.
This is remarkably lazy writing and editing. The headline is slanted — the money is for the workings of the entire judiciary, not just “Trump Judges” — and the opening grafs suggest that there is something unseemly about the President and Senate fulfilling their constitutional roles to populate the judiciary.
There is probably little practical harm that will come out of this sloppy article, but the public — and the courts — deserve better.
On Thursday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled “Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” Like much of what Congress does, the hearing featured a lot of pomp and circumstance with relatively little substance. But there was an interesting revelation from U.S. District Judge Audrey Fleissig, who (along with U.S. District Judge Richard Story) testified before the Subcommittee on public access to the work of the federal courts. Specifically, Judge Fleissig asserted that “Our case management and public access systems can never be free because they require over $100 million per year just to operate.”
The $100 million figure was new to me. That is a lot of money. Now I suspect that the external part of that system — the PACER interface for public access — constitutes only a small part of that overall cost, and that most of the cost goes to internal case management software that the courts would use in any event. So perhaps Judge Fleissig is being a bit selective with her evidence.
Still, I am sympathetic to the statement that PACER can never be free. Someone has to pay for it–the direct users, the court system, or Congress.
I explored the PACER funding dilemma at length here. And I do not expect that a show hearing before a House Subcommittee would really explore these issues in depth. But I do hope (and expect) that someone — both in the court system and in Congress — is thinking about the PACER funding problem with the seriousness it deserves.
Louisiana legislators voted overwhelmingly last week to raise the salaries of state judges by 2.5% in the coming year. If funds permit, judges would continue to receive equivalent pay raises for each of the four years after that as well.
The source of the funding struck me as noteworthy:
The Louisiana Supreme Court agreed to cover the first year of pay raises for judges — at an estimated cost of $1.8 million — from its substantial cash reserves. It’s unclear whether judges will continue to tap reserves or turn to state taxpayers to cover future raises, which could cost as much as $9.5 million per year if all five annual pay hikes are awarded.
I thought that judicial salaries typically came from funds controlled by the legislature. It’s quite interesting that salaries are to be paid (at last initially) out of the state supreme court’s “substantial” independent funds.
The United States Courts will run out of funding this coming Friday, January 11. If the federal government is not funded and operating by that date, case processing will be immediately affected. While the likely impact will vary from district to district, it is certain that civil cases will suffer first, with trials and hearings being postponed as the courts dedicate their essential staff to criminal proceedings. Bloomberg Law has a good look at how the courts are handling the situation.
We are already starting to see some negative effects on civil cases in certain districts. Should the shutdown linger, one would expect to see existing civil cases settle at higher rates, and future cases filed either in state courts or in private arbitration settings. None of this, of course, is good business for the federal court system. Let’s hope there is a resolution soon.
Late last year, the Cook County (Ill.) Board ordered the termination of nearly 180 county court employees, in light of rampant financial problems throughout the county. That action spurred Cook County Chief Judge Timothy Evans to file a lawsuit against the Board to enjoin the layoffs. Chief Judge Evans argued that even though the Board had power to set the courts’ budget, it did not have the authority to target individual employees for layoffs.
The Lake County Circuit Court agreed in December, issuing a temporary restraining order against the county to prevent the layoffs. Now, nearly eight months later, the parties have reached a settlement.
Both sides are claiming victory. The Board is saying that the settlement amount is “much lower than what was initially demanded” and that it will promote efficiencies in the court system. Chief Judge Evans points to the loss of only 22 jobs (as opposed the the initial 180), and his belief that “the lawsuit made clear that the county board had no authority to lay off court employees.”
The Administrative Office of the U.S. Courts has announced that all federal courts will remain open for during the current government shutdown, using reserve funds that can last approximately three weeks. The AO further explains:
If the shutdown were to continue past three weeks, and exhaust the Judiciary’s resources, the Judiciary would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers. Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.
Funding is the court system’s most prominent externally acquired resource. Hopefully the courts’ ability to work through cases is not adversely affected by a long shutdown.
Iowa Chief Justice Mark Cady, in his annual state of the judiciary speech, recently warned that years of stagnant funding for the courts are “beginning to tear at the very fabric and operation of our mission.” State funding to the court system for Fiscal Year 2018 remains the same as FY 2017 and lower than in FY2016. From the Des Moines Register:
Today, 182 fewer people are employed by the court system than one year ago, Cady said — a 10 percent reduction in workforce. That includes 115 essential positions that have gone unfilled, he said. Judicial branch employees include judges and magistrates, clerks of court, court reporters, IT staff, juvenile court officers and other administrative staff.
The reduced staffing has caused delays, Cady said, forcing the judicial branch to back off from a promise made two years ago to try all cases on the date scheduled without delays.
“We have been forced to walk back from this pledge because we do not have enough people to do the work to keep it,” Cady said.
One by one, eight state trial judges have recused themselves from presiding over a criminal case against a former New Mexico state senator. Phil Griego was indicted in June on 22 counts, including perjury and embezzlement. Among other things, Griego is alleged to have spent funds from his re-election account after resigning from the state senate in March 2015.
None of the eight judges identified a specific reason for recusing themselves from the case, with each indicating only “good cause” for the recusal. The Santa Fe New Mexican reports:
Former state Supreme Court Justice Patricio Serna said one factor in the decision by so many Santa Fe judges to recuse themselves from Griego’s case might have been their role lobbying legislators for court funding.
If the need to obtain court funds from the legislature compromises judges to this extent, interdependence can become a danger to the administration of justice.