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Responding to the CrisisReengineering Court Governance and Structure

DANIEL J. HALL* & LEE SUSKIN**

our years of tough economic times and resulting state court budget cuts have had a cumulative negative effect on those who utilize our state courts. A majority of states have left judgeships vacant, have had to lay off staff, and leave clerical and judicial support positions unfilled.1 State trial courts have reduced operating hours.2 These budget reductions are impacting the ability of courts to hear and dispose of cases in a timely manner; to keep accurate, timely records; and to serve those seeking the just resolution of their disputes.3 Several states are responding to budget crises by attempting to dramatically redesign, or re-engineer, their state court systems with the main goals of decreasing costs and increasing quality.4 These efforts involve significantly altering court governance and structure in ways that would normally be both unprecedented and infeasible. Agreement on high-level principles, which establish the goals and values of the projects, is central to identifying and securing support for dramatic structural changes. The Conference of Chief Justices and the Conference of State Court Administrators have recently adopted Principles for Judicial Administration to guide them as they seek to restructure court services and secure

Vice President for Court Consulting Services, National Center for State Courts; M.P.A., Finance and Policy Analysis University of Colorado; B.A., Sociology, University of Colorado. ** Former Court Administrator, Vermont State Judiciary; Of Counsel, National Center for State Courts; Principal Consultant, Fair Shake Consulting.
1 William T. (Bill) Robinson III, Rising to Historic Challenge: Funding for State Courts, Preserving Justice, 51 JUDGES J. 8, 9 (2012). 2 3 4

Id. See id. Id.

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adequate funding.5 The Principles are also intended to help members of legislative bodies . . . understand the difficult structural and fiscal decisions required to enable courts to enhance the quality of justice while facing increased caseloads with fewer resources.6 This Article will provide recent data on the funding of state courts and its impact on those served by the courts. It will provide examples of state court systems that have dramatically and successfully re-engineered their operations, and it will discuss how the Principles for Judicial Administration can guide state court leaders and legislators as they work to ensure that courts serve all who enter their doors seeking justice. I. Funding the States Courts

As a core function of government, courts must be adequately funded. Citizens rely upon the courts to play an important role in keeping our streets safe, and maintaining a peaceful and orderly society. We rely on the courts to keep our people safe from the guilty and to protect the innocent from government abuse. Business leaders rely on the courts to provide the stable resolution of business and commercial disputesthe basis for a vibrant economy. We all look to the courts to maintain the rule of law, so fundamental to a democratic nation. Securing adequate funding for the courts presents numerous challenges. In order to understand these challenges, and to begin identifying the steps to meet them, one must first understand who decides how much money courts receive to fund court services and access to justice. The National Center for State Courts (NCSC)7 recently completed a survey of the Conference of State Court Administrators (COSCA),8 the administrative leaders of our nations state courts. The survey gathered information on the sources of funding for the states courts and on the impact that the tough economic climate of the past four years has had on the ability of the states courts to provide access to justice and the fair and

5 Policy Statements & Resolutions: Resolution 4, In Support of the Principles for Judicial Administration, CONFERENCE OF CHIEF JUSTICES, http://ccj.ncsc.dni.us/CourtAdminResolutions/resol4JudicialAdministration.html (last visited Apr. 9, 2013). 6 NATL CTR. FOR STATE COURTS, PRINCIPLES FOR JUDICIAL ADMINISTRATION: GOVERNANCE, CASE ADMINISTRATION, ESSENTIAL FUNCTIONS AND FUNDING, at i (July 2010) [hereinafter NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION], available at http://www1.spa.american.edu/justice/documents/4159.pdf. 7 For information regarding the National Center for State Courts, see http://www.ncsc.org. 8 For information regarding the Conference of State Court Administrators, see http://cosca.ncsc.dni.us.

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timely resolution of disputes.9 We learned from the survey that the state general fund is the primary source of court funding in approximately two-thirds of the states.10 Where the general fund is not the source, trial courts rely on a mix of state and local funding.11 Where such funding does come from the state, it is the state legislature that is responsible. In these states, the state funds trial court judges, judicial support staff, clerical staff, technology and operating expenses.12 In fact, [i]n some of these states, the probation department is included in the Judiciarys budget.13 Facilities, the courthouses, and the maintenance thereof are normally paid at the county level.14 The governor or county executive will usually make recommendations on the court budget as part of the submission of the total budget for the state or county. However, it is the state legislatures, as well as county and municipal councils, that establish the judicial budget in their appropriations legislation. Typically, the state or local budget allocates the revenue received from broad-based taxes such as the income, sales, and property taxes. The revenue accumulates into what is usually referred to as the general fund. The general fund pays for what it costs to operate the three branches of government, and it pays for the cost of providing needed services to a given states or countys citizens. Such services include: educating the children; keeping people warm in the winter; and making sure that people have food to eat, a roof over their heads, and access to quality health care. Only a minuscule segment of general fund dollars are spent on state court resources.15 Where such courts are wholly state funded, . . . [they only] receive approximately two percent of the general fund.16 Revenue from income and sales taxes over the past four years has declined or not grown sufficiently to keep pace with demands on government services, thereby reducing the size of the general fund.17 This
9 NATL CTR. FOR STATE COURTS, THE 2012 BUDGET SURVEY OF STATE COURT ADMINISTRATORS 1 (2012) [hereinafter COSCA BUDGET SUMMARY], available at http://www.ncsc.org/Information-and-Resources/Budget-ResourceCenter/Budget_Funding.aspx (follow Budget Survey Summary hyperlink).

Id. Id. 12 Id. 13 Id. 14 See id. 15 See generally NATL CTR. FOR STATE COURTS, COSCA BUDGET SURVEY (2012) [hereinafter COSCA BUDGET SURVEY], available at http://www.ncsc.org/Information-andResources/Budget-Resource-Center.aspx (follow All States Response hyperlink).
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COSCA BUDGET SUMMARY, supra note 9, at 1. See, e.g., COSCA BUDGET SURVEY, supra note 15, at 1, 5, 9 (revealing a reduction in the

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decline has made it difficult for the courts to maintain a fair share of the general fund, let alone receive needed increased funding. The situation has improved somewhat in the past year. The COSCA Budget Summary notes that most state court systems [have] received small increases in their appropriations compared to the previous year; only a handful saw reductions.18 The challenge for the courts is to make clear that providing access to justice and court services is equally, or more, important to the state or county as any other government-funded services. Courts cannot simply claim that, as a branch of government, they deserve more than 2% of the general fund. Courts need to show not only that they are providing needed services; they need to demonstrate that they are performing those services well and managing their delivery in an effective and efficient manner.19 While the difficult economy of the past four years has exacerbated the problem of securing adequate funding, the challenge is nothing new. Courts have struggled to secure adequate funding for years.20 Shortages in the number of judges and support staff needed to provide court services have existed in many states for a long time.21 Challenges in providing access to those seeking justice have existed for decades.22 The future will be equally as challenging. The judiciary will attempt to secure funding from legislatures dedicated to reducing taxes; reducing the size of government; and enhancing services to families who need food, housing, heat, and health care.23 Seventy percent of the state court administrators report that they expect their budget situation to stay relatively the same over the next three years. . . . Eleven percent expect their budget situation to get worse.24 This Article includes information that the NCSC has obtained from

general fund in Alabama, Arizona, and California); see COSCA BUDGET SUMMARY, supra note 9, at 4. 18 COSCA BUDGET SUMMARY, supra note 9, at 2. 19 See NATL CTR. FOR STATE COURTS, FUNDING JUSTICE: STRATEGIES AND MESSAGES FOR RESTORING COURT FUNDING 13-14 (2012) [hereinafter NCSC, FUNDING JUSTICE], available at http://www.ncsc.org/Information-and-Resources/Budget-ResourceCenter/~/media/Files/PDF/Information%20and%20Resources/fundingjustice.ashx. 20 See Joseph P. Nadeau, Ensuring Adequate Long-Term Funding for the Courts: Recommendations from the ABA Commission on State Court Funding, 43 JUDGES J. 15, 15 (2004) (discussing a state court funding crisis existing just a few years before the current one). See Quintin Johnstone, Law and Policy Issues Concerning the Provision of Adequate Legal Services for the Poor, 20 CORNELL J.L. & PUB. POLY 571, 632 (2011). 22 See id. at 571-72. 23 See, e.g., John Dooley, Judicial Funding in Times of Budget Crisis, VT. B.J., Winter 2008-2009, at 34 (describing Vermonts struggle with securing funding from its legislature).
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COSCA BUDGET SUMMARY, supra note 9, at 2.

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state court administrators documenting the level of funding for those trial courts that are primarily state funded. Only anecdotal information is available on the level of funding provided by counties and municipalities in those states that depend on local funding bodies. State court administrators have provided some information on the level of local funding. In Michigan, many of the local trial courts faced reductions in recent years; some of those reductions were significant.25 The budget for the largest district court in the state, in the City of Detroit, decreased from $44.2 million with 392 positions in 2008-2009, to $33 million with 285 positions in 2012-2013.26 In Arizona and Missouri, many locally funded trial courts have undergone budget reductions over the past four years.27 In other states, Kansas and Utah for example, local funding has remained consistent.28 A. Funding Judgeships The survey of state court administrators reveals that the number of judicial positions has remained fairly stable over the past four years. In most states, the number of general-jurisdiction trial court judges is set by statute; and legislative bodies have not passed laws to reduce the number of judgeships. Over the past four years, a third of the states added one to three judgeships to match the growing caseload.29 In about half of the states the number of trial court judgeships remained the same.30 Two states have reduced the number of judgeshipseach by one.31 While the number of judgeships has not been reduced, state court leaders reduced the number of days that judges actually sit on the bench or are available to hear and decide cases.32 While state court leaders cannot on their own reduce the number of judgeships, they can respond to budget shortfalls by reducing the number of times that they call on retired judges to take the bench to replace judges who are sick, on vacation, or to assist

COSCA BUDGET SURVEY, supra note 15, at 39. Id. 27 Id. at 5, 46. 28 Id. at 28, 80. 29 See NATL CTR. FOR STATE COURTS, COSCA BUDGET 2013 FINAL ANALYSIS [hereinafter COSCA BUDGET FINAL ANALYSIS], available at http://www.ncsc.org/Information-andResources/Budget-Resource-Center/Budget_Funding.aspx (last visited Apr. 9, 2013) (click on Full survey analysis hyperlink in order to access all graphical data and click on tab entitled Budget Request Process).
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See id. See id. See id.

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judges to clear up their backlog.33 About one-third of the states have reduced or eliminated the practice of calling upon retired judges.34 The COSCA Budget Summary states: In one-third of the states, court leaders made the difficult decision to cut costs by reducing the number of hours that courthouses are open or, in some states, by closing the courts for one day per month and imposing furloughs on the court staff.35 During a furlough, trial court staff members are not paid.36 Though many state constitutions prohibit furloughs insofar as they reduce the salaries of jurists,37 judges in most of these states have placed themselves under voluntary furlough, essentially refusing pay for these days.38 The salaries of state trial court judges have not kept up with inflation, and [i]n half the states, the salaries of judges have been frozen.39 In 2009, only thirteen states increased the salaries of the judges in their generaljurisdiction trial courts; in 2010 and 2011, only nine states increased salaries; by July of 2012, fifteen states gave raises to their generaljurisdiction trial court judges.40 While most states have frozen salaries for only a few years, the salaries of New Yorks judges were frozen for twelve consecutive years.41 The last salary increase for Michigans judges happened in January 2002.42 Salary freezes impact the quality of justice. It is imperative that the judiciary is populated with our best and brightest attorneys. Judges weigh the competing arguments of attorneys who practice before them. They need to have the knowledge, experience, and judgment to make the soundest decision. Litigators need the trust and confidence of their clients and the public that judicial decisions are fair and conform to the law. Salary freezes not only impact judicial morale, but may also result in jurists leaving public service. Additionally, these salary freezes could impact whether the best and brightest attorneys choose to leave their law practices to join the judiciary.

See id. See id. 35 See COSCA BUDGET SUMMARY, supra note 9, at 3. 36 Stephen N. Zack, More Than a Budget Line Item: An Adequately Funded Judiciary is of Utmost Necessity to Ensure Access to Justice, A.B.A. J., Nov. 2010, at 8.
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Id. Id.; see COSCA BUDGET SUMMARY, supra note 9, at 3. 39 COSCA BUDGET SUMMARY, supra note 9, at 2-3. 40 NATL CTR. FOR STATE COURTS, SURVEY OF JUDICIAL SALARIES 1 (2012), available at http://www.ncsc.org/~/media/Microsites/Files/Judicial%20Salaries/jud_2012.ashx.
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William Glaberson, State Judges Get 27% Raise Over 3 Years, N.Y. TIMES, Aug. 27, 2011, http://www.nytimes.com/2011/08/27/nyregion/commission-raises-ny-judges-pay-27-over-3years.html?pagewanted=all.
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COSCA BUDGET SURVEY, supra note 15, at 39-40.

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The Funding of Court Staff

While judges are the public face of the judiciary, responsible for hearing and deciding cases and determining the rights of those who appear before them, judges cannot do their important work without support staff. While most people envision only judges when they think of the judiciary, the fact is that judges only compose 10-15% of the court workforce. Judges require law clerks to assist with legal research, secretarial support to prepare findings and orders, and court reporters to record hearings and prepare verbatim transcripts. Additionally, clerical staff members are required to: schedule their cases; notify parties of hearings; make docket entries of court events; and create, retrieve, and store case files. Clerical staff members are also needed to provide direct services to attorneys, litigants, and the public. Court staff members provide customer service: they greet persons at the counter and on the phone; they answer questions; and they direct attorneys and litigants to the correct courtroom. In recent years, court staff have filled a growing need for assistance by pro se, or self-represented litigants. Throughout the country, a growing number of people are entering courts to obtain divorce or parenting orders, domestic abuse protective orders, and small claims judgmentsall without the assistance of attorneys.43 Courts have established programs, created forms and instructions, and trained staff to provide assistancebut not legal adviceto self-represented litigants.44 Many courts have also hired and trained staff members to serve as mediators to assist represented and self-represented litigants in civil and family cases.45 Mediated orders not only free up judges to decide cases most needing of their attention, but they also usually result in resolutions that best meet the needs of all parties. Courts and judges also need adequate staff to manage the business of the court: to manage its human resources department, its finance and budget management department, and to identify and implement operational improvements.

43 Jim Hilbert, Educational Workshops on Settlement and Dispute Resolution: Another Tool for Self-Represented Litigants in Family Court, 43 FAM. L.Q. 545, 547 (2009). 44 See, e.g., COMMITTEE ON RESOURCES FOR SELF-REPRESENTED PARTIES: STRATEGIC PLANNING INITIATIVE, REPORT TO THE JUDICIAL COUNCIL 6-11 (2006) [hereinafter COMMITTEE ON RESOURCES FOR PRO SE LITIGANTS], available at http://www.utcourts.gov/resources/reports/docs/ProSe_Strategic_Plan-2006.pdf. 45 See, e.g., VT. JUDICIARY, MEDIATION FOR PARENTS IN FAMILY COURT: SEPARATION, DIVORCE, PARENTAGE, DISSOLUTION OF CIVIL UNION, BLENDED FAMILIES, POST-DIVORCE 1-4 (2010), available at http://www.vermontjudiciary.org/gtc/Family/SharedDocuments/

FamilyCrtMediationProgram.pdf ; Family Court Services, HENNEPIN, http://www.hennepin.us/ (follow Public Safety & Law link; then follow Family Court Services link) (last visited Apr. 13, 2013).

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In recent years, as courts embraced technology, information technology specialists joined these courts: to write software that meets the needs of the judges and the public; to ensure that technology used in the courtroom and the clerks office runs appropriately; and to see that the court website delivers information that attorneys, litigants, and the public require. As stated earlier in this Article, over the past four years the number of judicial positions has remained fairly stable. Over this same period of time, the number of trial court and central office staff members working in the judicial branch has declined. In almost one-third of the states, the trial courts are operating with at least 8% fewer staff membersspecifically, central office staff membersthan they had four years ago.46 Ten percent of states expect to further reduce the number of staff members working in the trial courts this year.47 Over the past four years, almost all of the states and territories have taken steps such as laying off staff, delaying the filling of staff and judicial vacancies, and reducing court hours. Not surprisingly, as one-quarter to one-third of the states report, these steps have resulted in reduced service to the public, reduced access to court services, and delays in the resolution of disputes.48 Yet, due to the implementation of countermeasures, such as improved business processes, the introduction of technology, and management restructuring, only half of the states report that these steps are resulting in reduced service to the public.49 II. Reengineering the States Courts and the Principles that Guide Decisions To secure adequate funding, the courts of the future must demonstrate that they are governed well and structured in ways that maximize access to justice and the delivery of court services. Public trust and confidence in the judiciary is an essential element of a stable society. To maintain that trust, courts must hear and resolve disputes fairly and timely at a reasonable cost to litigants and taxpayers. Courts must demonstrate that they are managed effectively and efficiently as a twenty-first century organization that meets the expectations of a twenty-first century public.50 Many court systems today work within organizational structures designed in the nineteenth century. Their organizational and geographical structure prevents the efficient and effective use of resources and confuses
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COSCA BUDGET SUMMARY, supra note 9, at 3-4. Id. 48 Id. 49 Id. 50 See NCSC, FUNDING JUSTICE, supra note 19, at 13-14.

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the public as they attempt to access the courts. The state courts of the twenty-first century face critical challenges. The following sections of this Article seek to highlight just some of those challenges and demonstrate how some states address them. A. Providing Access to the Courts

One challenge for our courts is to accommodate the growing number of self-represented parties.51 Many people involved in divorce proceedings appear without an attorney. Most people seeking protection from domestic abuse file their own requests for protective orders.52 Most people filing and defending small-claims suits are self-represented.53 Many states are addressing this challenge by: (1) establishing dedicated self-help centers; (2) creating virtual self-help centers; (3) creating enhanced websites that provide court information; and (4) offering instructions and documentassembly software to assist self-represented litigants file and defend court actions.54 B. Assisting Court Users with Limited English Proficiency A growing number of immigrants and refugees with limited English proficiency are entering our communities.55 Many of these individuals, as with the population in general, come into contact with and require access to the courts. Due process requires that all those involved in court proceedings understand those proceedings.56 States are addressing this challenge by making sure that all persons understand their right to an interpreter. This is done by making sure that qualified interpreters are available and by exploring remote interpretation through videoconferencing technology. State courts also translate court forms and informational materials into languages spoken in their respective communities.57

See, e.g., COMMITTEE ON RESOURCES FOR PRO SE LITIGANTS, supra note 44. See, e.g., id. 53 See, e.g., id. 54 See Self-Representation: State Links, NATL CTR. FOR STATE COURTS, www.ncsc.org/topics/access-and-fairness/self-representation/state-links.aspx (last visited Apr.11, 2013). 55 See ANN MORSE, A LOOK AT IMMIGRANT YOUTH: PROSPECTS AND PROMISING PRACTICES, NATL CONFERENCE OF STATE LEGISLATURES: CHILDRENS POLY INITIATIVE 1 (Mar. 2005), available at www.ncsl.org/documents/immig/CPIimmigrantyouth.pdf.
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Competency to Stand Trial, 40 GEO. L.J. ANN. REV. CRIM. PROC. 459, 459 (2011). In October 2012, the NCSC held a National Summit on Language Access to the Courts. Fiftyone states and territories attended. They each developed action plans to address the challenges identified. Although the report summarizing the summit and each states action
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C. Making Full Use of Technology and Moving to Electronic Records Today, most courts operate as the paper-oriented courts of a different era. A person entering the clerks office will see the paper files piled on desks, just as the clerks office looked decades ago.58 Court staff members spend an inordinate amount of time creating paper files, storing them, and retrieving them.59 Attorneys travel to the courthouse to file papers or access documents stored in the court files. Attorneys and court employees send pleadings, notices of hearings, and other communications not electronically, but by calling on the services of the United States Postal Service.60 Stenographic reporters make the verbatim record of courtroom proceedings on paper tape.61 Some state courts have moved to electronic record and other technologies often referred to as eCourt.62 These technologies not only enable the courts to operate more efficiently and effectively, but also enhance access to the courts and provide attorneys offices, other state agencies, and the public with better information. Attorneys are able to electronically file complaints, petitions, and motions with the court. They can receive decisions electronically and not have to wait for the mail to arrive from the post office. They can access a courts website to know when their cases are next scheduled. Law enforcement can electronically file petitions with the court and check court schedules for future appearances. In many of these states, the courtroom verbatim record is made and preserved electronically and attached to the case file. More than half of the states have now or are in the process of adopting and implementing eCourt technologies this year.63 One-half of these states
plan is not yet final, the agenda for the summit is available. See National Summit on Language Access in the Courts, NATL CTR. FOR STATE COURTS (Oct. 2012), http://www.ncsc.org/Servicesand-Experts/Areas-of-expertise/Language-access/LA-Summit/Program.aspx. See generally THOMAS G. DIBBLE, A GUIDE TO COURT RECORDS MANAGEMENT ix-x (1986). See Arthur M. Monty Ahalt, Remaking the Courts and Law Firms of the Nation: Industrial Age to the Information Age, 31 TEX. TECH L. REV. 1151, 1152 (2000).
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See id. Contra Frederic I. Lederer, The Road to the Virtual Courtroom? A Consideration of Todays and TomorrowsHigh-Technology Courtrooms, 50 S.C. L. REV. 799, 826 (1999). 62 Technology, NATL CTR. FOR STATE COURTS, http://www.ncsc.org/Topics/Technology.aspx (last visited Apr. 11, 2013).
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COSCA BUDGET SUMMARY, supra note 9, at 5-7; see generally COSCA BUDGET SURVEY, supra note 15; see, e.g., eCourts, N.Y. STATE UNIFIED COURT SYSTEM, http://iapps.courts.state.ny.us/webcivil/ecourtsMain (last visited Apr. 11, 2013); eCourt *Kokua, STATE JUDICIARY, HAW. http://www.courts.state.hi.us/legal_references/records/jims_system_availability.html (last visited Apr. 11, 2013); Oregon eCourt, OREGON COURTS, http://courts.oregon.gov/oregonecourt/pages/index.aspx [hereinafter Oregon eCourt] (last

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have received funding to create and enhance their computer programs.64


Many state court systems are meeting these challenges and the challenges of providing access to justice despite limited funding, by restructuring and consolidating their operations . . . by introducing eCourt. Sixty percent of the state court administrators report that because of restructuring and technology enhancements, their courts are in a better position than four years ago to provide access and timely justice.65

As we have learned from this years budget survey of state court administrators, many state courts have been responding to budget cuts by laying off or furloughing staff, reducing hours of operation, and freezing salaries. When the economy finally recovers, state courts will be even further behind if they have wasted valuable time by not developing strategies and structures to fulfill emerging needs. D. Identifying Viable Solutions As former New Hampshire Chief Justice John T. Broderick has written: [C]reative innovation is no longer just a good idea, it is an absolute prerequisite to survival.66 The years ahead will demand that state courts do more with the same. That is not possible, however, without real, systemic change. Our challenge is to begin the reengineering that change demands and do so in a very challenging economy.67 To meet the challenges of the twenty-first century, courts need to engage in business process engineering of the twenty-first century. Business academia has identified seven principles to reengineer systems by streamlining business processes and significantly improving quality, efficiency, and cost: (1) organize around outcomes, not tasks;68 (2) identify all the processes in an organization and prioritize them in order of redesign urgency;69 (3) integrate information-processing work in the real work that produces the information;70 (4) treat geographically dispersed resources as

visited Apr. 11, 2013). 64 See generally Oregon eCourt, supra note 63. 65 COSCA BUDGET SUMMARY, supra note 9, at 5. 66 John T. Broderick, Jr. & Daniel J. Hall, What is Reengineering and Why is it Necessary?, in NATIONAL CENTER FOR STATE COURTS, FUTURE TRENDS IN STATE COURTS 25 (Carol R. Flango et al. eds., 2010), available at http://cdm16501.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1622. 67 Id. 68 MICHAEL HAMMER & JAMES CHAMPY, REENGINEERING THE CORPORATION: A MANIFESTO FOR BUSINESS REVOLUTION 38 (2006).
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Id. at 127. See id. at 56.

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though they were centralized;71 (5) link parallel activities in the workflow instead of just integrating results;72 (6) put the decision point where the work is performed, and build control into the process;73 and (7) capture information once and at the source.74 A number of state court systems have been analyzing, redesigning, and reorganizing their processes with a focus on what is best for the public rather than what is good for the courts. These states have taken a comprehensive enterprise perspective with the main goal of decreasing costs and increasing qualitythe very definition of business process reengineering.75 Court leaders in these states are attempting to develop a court system that is flexible enough to respond to changing demands, lean enough to be as efficient as possible, and innovative enough to keep its judicial services technologically freshall with a staff dedicated to improving service. But, as stated above, many state court systems work within organizational structures designed over a century ago to address a different era. Constitutional and statutory provisions often lock state court systems into an organizational structure that is geographically disparate, with decentralized administrative controls that prevent the most efficient use of resources.76 Jurisdictional overlap or inconsistencies often confuse the public as it attempts to access the courts.77 1. Five Steps to Reengineering

Court leaders who have taken on the reengineering of their court systems have used five specific steps or processes: (1) gathering the right people to the table; (2) recognizing the long-term structural nature of the problem; (3) developing principlesadministrative, governance, and essential functionsto assist in viewing the issues; (4) identifying possible solutions and analyzing their likely impacts; and (5) sorting the solutions

See id. at 66-67. See id. at 57. 73 See id. at 54-55. 74 See HAMMER & CHAMPY, supra note 68, at 45. 75 See Lean Glossary, LEANOVYS.COM, http://www.lenovys.com/en/areaa_didattica/lean_glossary.htm (last visited Apr. 6, 2013). 76 See INGO KEILITZ ET AL., NATL CTR. FOR STATE COURTS, A STUDY OF COURT CONSOLIDATION IN MAHONING COUNTY, OHIO: FINAL REPORT, at i (June 22, 2011), available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1868.
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See CITIZENS COMMN ON THE TEX. JUDICIAL SYS., INTO THE TWENTY-FIRST CENTURY: A REPORT TO THE TEXAS SUPREME COURT AND THE TEXAS JUDICIAL COUNCIL 20 (Jan. 5, 1993), available at http://www.courts.state.tx.us/tjc/publications/cc_tjs.pdf.

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into three groupsshort-term, medium-term, and long-term.78 2. The Importance of Developing Guiding Principles

While all five steps to reengineering are important, this Article focuses on the importance of developing guiding principles.79 Developing an operational set of principles surrounding administration, governance, and the essential functions of courts are necessary for a number of reasons. First, these operational principles provide a lens through which to evaluate options, provide guidance to make difficult budget decisions, and set priorities. In addition, an operational set of principles provides a vehicle for judicial leadership to harness the energy and cooperation of the judicial community. III. The Principles for Judicial Administration In July 2012, the Conference of Chief Justices and the Conference of State Court Administrators adopted the Principles for Judicial Administration (Principles)80 as practical operational principles. These are intended to assist chief justices and state court administratorsas well as presiding judges and trial court administrators in locally funded jurisdictionsto address the long-term budget shortfalls and the inevitable restructuring of court services. The Principles are designed for use by the judicial branch leadership of each state as a basis for the establishment of each states own like set. They are also intended to help members of legislative bodies and their staffs understand the difficult structural and fiscal decisions required to enable courts to enhance the quality of justice while facing increased caseloads with fewer resources. A number of groups worked independently to develop these guiding principles. Principles relating to effective governance have been developed in conjunction with the National Center for State Courts (NCSC) Harvard Executive Session81 and the reengineering experience of several states. Decision-Making and Case Administration Principles have been completed through the High Performance Court Framework.82 Finally,

Broderick & Hall, supra note 66, at 25. See infra Part III. 80 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at i. 81 Harvard Executive Session for State Court Leaders in the 21st Century, 2008-2011, NATL CTR. FOR STATE COURTS, http://www.ncsc.org/services-and-experts/court-leadership/harvardexecutive-session.aspx (last visited Apr. 6, 2013).
79 82 BRIAN OSTROM & ROGER HANSON, NATL CTR. FOR STATE COURTS, ACHIEVING HIGH PERFORMANCE: A FRAMEWORK FOR COURTS iv-v, 2 (Apr. 2010), available at http://www.ncsc.org/Services-and-Experts/Technology-tools/Court-TechnologyFramework/~/media/Files/PDF/Services%20and%20Experts/CTF/Achieving_HPC_April_2010.

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Funding Principles were developed using the Conference of State Court Administrators (COSCA) white papers;83 the Conference of Chief Justices (CCJ)/COSCA policy resolutions; the Trial Court Performance Standards;84 the National Center for State Courts CourTools;85 the ABA Task Force on Preservation of the Justice System;86 and recent NCSC reengineering projects. The Principles are set forth below, along with an abbreviated version of their commentary.87 The full document and commentary is available at the National Center for State Courts Budget Resource Center website.88 A. Introduction to the Principles for Judicial Administration As a separate branch of government, courts have the duty to protect citizens constitutional rights, provide procedural due process, and preserve the rule of law. Courts are a cornerstone of our society and provide a core function of governmentadjudication of legal disputes. Adequate and stable funding is required for courts to execute their constitutional and statutory mandates. While the judiciary is a separate branch of government, it cannot function with complete autonomy. Courts depend on elected legislative bodies at the state, county, and municipal levels for funding.89 Judicial leaders are responsible for demonstrating what funding level is necessary, establishing administrative structures, and putting forth management processes that document efficient use of taxpayer dollars.90 With this foundation, establishing principles that guide efforts to define what constitutes adequate funding is possible.

ashx. CONFERENCE OF STATE COURT ADMR, POSITION PAPER ON STATE JUDICIAL BRANCH BUDGETS IN TIMES OF FISCAL CRISIS 2-4 (Dec. 2003), available at http://cosca.ncsc.dni.us/white_papers.html.
84 BUREAU OF JUSTICE ASSISTANCE, U.S. DEPT OF JUSTICE, NCJ 161570, TRIAL COURT PERFORMANCE STANDARDS WITH COMMENTARY, at iii (1997), available at https://www.ncjrs.gov/pdffiles1/161570.pdf. 83

NATL CTR. FOR STATE COURTS, COURTOOLS (2005), available at http://www.courtools.org/~/media/Microsites/Files/CourTools/CourTools_Trial_Brochure.ash x. 86 Task Force on Preservation of the Justice System, A.B.A., http://www.americanbar.org/groups/justice_center/task_force_on_the_preservation_of_the_ju stice_system.html (last visited Apr. 6, 2013). Infra Part III.A. NATL CTR. FOR STATE COURTS, BUDGET RESOURCE CENTER, http://www.ncsc.org/Information-and-Resources/Budget-Resource-Center.aspx (last visited Apr. 13, 2013).
88 89 90 87

85

NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 12. See id. at 12, 14.

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The Governance, Decision-Making, and Case Administration Principles form the basis for establishing the necessary administrative structures and management processes.91 By effectively managing public resources, court leaders can determine for themselves what funding is needed to provide quality judicial services and present an effective argument to funding bodies.92 The third set, the court-specific Funding Principles, can be successfully implemented only when a supportive governance and organizational infrastructure exists.93 The first five Funding Principles address the development and management of the judicial budget. The second five are intended to identify what policy makersboth in and outside the judicial branchneed to consider when determining the level of adequate funding for the judiciary. B. Governance Principles Governance is the means by which an activity is directed to produce the desired outcomes.94 The state court systems that have most successfully redesigned their processes and made the changes needed to improve court services established a well-defined governance structure for policy formation and administration.95 They select their leaders based on merit rather than seniority and ensure that the court system has a highlyqualified, competent, and well-trained workforce.96 These court systems have created efficient structures and business processes while enhancing quality, and exercising management control over all resources that support judicial services within their jurisdiction.97 Adherence to administrative governance principles has enabled the consolidation of management positions within a jurisdiction. It has also enabled court leaders to efficiently balance workload among judicial

Id. at 1. Id. 93 Id. 94 Id. at 2. 95 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 2. 96 Id. at 4. 97 See, e.g., Laura Klaversma & Lee Suskin, A CASE STUDY: REENGINEERING MINNESOTAS COURTS, NATL CTR. FOR STATE COURTS 18 (Dec. 2012), available at http://www.ncsc.org/services-andexperts/~/media/Files/PDF/Services%20and%20Experts/Court%20reengineering/MN_Case%2 0Study_Final_%20Report.ashx; Lee Suskin & Daniel J. Hall, A CASE STUDY: REENGINEERING UTAHS COURTS THROUGH THE LENS OF THE PRINCIPLES FOR JUDICIAL ADMINISTRATION (2012) [hereinafter SUSKIN & HALL, REENGINEERING UTAHS COURTS], available at http://www.ncsc.org/services-andexperts/~/media/files/pdf/services%20and%20experts/court%20reengineering/utah%20case%2 0study%202%2027.ashx.
92

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officers and court staff based on objective workload models. C. Decision-Making and Case Administration Principles To make the best use of taxpayer dollars, court leadership should recognize that the adversarial process is not necessarily the best means to resolve some types of disputes; court leaders should make alternative dispositional approaches available.98 Effective management of the courts time demands that judges, with the assistance of court administrative staff, exercise management and control over the legal process and the flow of cases through the court. Court leaders must ensure that court procedures are simple, clear, streamlined, and uniform to facilitate expeditious processing of cases and to provide justice at the least expense to litigants and taxpayers. Courts can provide justice at a reasonable cost by ensuring that judicial officers give an appropriate level of attention to each case.99 Courts must continually evaluate the effectiveness of their policies, practices, and new initiatives. D. Court Funding Principles The judicial system is dependent on the other branches of government for its funding. Funding Principles are designed for the use of all branches of government when exercising their respective duties and responsibilities regarding judicial budget requests and appropriations. 1. Developing and Managing the Judicial Budget

Effective court management, together with transparent budget requests supported by well-documented justification, enhances the credibility of the courts and reduces obstacles to securing adequate funding. These principles are aimed at establishing credibility and acknowledging accountability by keeping in place necessary autonomy. The first of these management principles (sixteenth overall) states: Judicial Branch leadership should make budget requests based solely upon demonstrated need supported by appropriate business justification, including the use of workload assessment models and the application of appropriate performance measures.100 Our seventeenth principle states: Judicial Branch leadership should adopt performance standards with corresponding, relevant performance measures and manage their operations to achieve the desired outcomes.101 Performance measures

98 99

SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 17. 100 Id. at v, 15. 101 Id. at iv, 13.

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permit the other branches of government and the public to appropriately hold the judiciary accountable for effective management of court operations. The eighteenth of these principles states: Judicial Branch budget requests should be considered by legislative bodies as submitted by the Judicial Branch.102 The judiciarys budget request should not first require prior approval of the executive branch. The nineteenth principle calls for Judicial Branch leadership to have the authority to allocate resources with a minimum of Legislative and Executive Branch controls including budgets that have a minimal number of line items.103 Budget line items should not be used to restrict the judicial branch from having reasonable autonomy to manage scarce resources. The twentieth principle states: Judicial Branch leadership should administer funds in accordance with sound, accepted financial management practices.104 Court leaders should be expected to adopt reliable financial management practices to administer all funds belonging to the courts including: appropriated funds, revenues, fees received, and trust funds held on behalf of litigants or other parties. 2. Providing Adequate Funding

The judiciary needs adequate funding to provide a forum for the just resolution of disputes, the preservation of the rule of law, and the protection of all rights and liberties guaranteed by the Constitution. The first of these court-funding principles (twenty-first overall) states: [C]ourts should be funded so that cases can be resolved in accordance with recognized time standards by judicial officers and court staff functioning in accordance with adopted workload standards.105 The twenty-second principle calls for responsible funding entities to ensure that courts have facilities that are safe, secure and accessible and which are designed, built and maintained according to adopted courthouse facilities guidelines.106 The twenty-third principle states: [T]he court system should be funded to provide technologies needed for the courts to operate efficiently and effectively and to provide to the public services comparable to those provided by the other branches of government and private businesses.107 To keep pace in a rapidly developing technological society, courts must be equipped with technology necessary to remain efficient and relevant. Principle twenty-four states: [C]ourts should be funded at a level that

102 103 104 105 106 107

Id. Id. at iv. Id. NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at iv. Id. at 3. Id.

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allows their core dispute resolution functions to be resolved by applying the appropriate dispositional alternative.108 And finally, the twenty-fifth principle states: Court fees should not be set so high as to deny reasonable access to dispute resolution services provided by the courts.109 E. Conclusion to the Principles for Judicial Administration

Judicial, legislative, and executive branch leaders must understand the nature of the judicial function and the role courts play in the larger world. Courts are a core function of government. The Governance, DecisionMaking, and Case Administration Principles discussed above form the foundations that courts need in place to pursue adequate funding. Courts cannot successfully implement Funding Principles unless they have the basic structural, management, and administrative practices in place. These provide the foundation upon which court management and subsequent funding requests are based.110 The Funding Principles set forth herein provide a framework in which judicial and legislative leaders can secure stable and adequate funding key to the successful discharge of the judicial branch mission. IV. State Courts Use of Principles to Reengineer Their Courts State court systems have established and been guided by their own set of principles as they examine and, where appropriate, change their structure and business processes to enhance the quality of judicial services and reduce costs.111 The following describes what five state judiciaries have done to reengineer their respective court systems. A. Reengineering the Courts of Utah112

The Utah Judicial Branch is a prime example of a state court system that has embraced judicial administration principles, reengineering the way its courts do business and organizing its operation around the optimal use of available funding.113 The work that the Utah Judicial Branch has done over the past thirty years to create a strong governance model and a clear and simplified structure made their reengineering efforts not only

Id. Id. 110 Id. at 1. 111 Principles, NATL CTR. FOR STATE COURTS, http://www.ncsc.org/Services-andExperts/Court-reengineering/Principals.aspx (last visited Apr. 6, 2013).
109 112 113

108

SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 6. Id. at 1.

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Applying the Governance Principles for Judicial Administration

The Utah Judicial Branch established the Judicial Council as its policymaking body and the authority for the administration of the judiciary.115 The Utah Judiciary has established a strong governance model, one based upon principles articulated by Utahs Chief Justice Christine M. Durham and Utahs State Court Administrator Daniel Becker. Their governance principles formed the basis for the NCSCs Principles for Judicial Administration.116 The Utah Judiciarys Governance Model is based on the concept that the court structure should be explicit, and the authority for policy decision-making and implementation well defined.117 Utah operates under the principle that the judiciary must speak with a single voice, with a single unified message.118 Utah has a simple court structure. In addition to the Supreme Court, it has a single intermediate Court of Appeals. The trial courts are comprised of a district court, a juvenile court, and a justice court in each of the states eight judicial districts.119 The district court is the state trial court of general jurisdiction;120 [t]he [j]uvenile [c]ourt is a court of special jurisdiction;121 and the justice courts are established by the Utah Constitution. The Utah Judicial Branchs presiding officer, the Chief Justice of the Utah Supreme Court, is the sole authority for establishing and representing the official position of the judiciary on issues concerning the Judicial Branch.122 The Judicial Council (Council) establishes policy for the Utah

Id. Court Governance, UTAH STATE COURTS, http://www.utcourts.gov/knowcts/adm/ (last modified May 23, 2012). 116 See CHRISTINE M. DURHAM & DANIEL BECKER, A CASE FOR COURT GOVERNANCE PRINCIPLES, HARVARD KENNEDY SCHOOL 1 (2011), available at http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centersprograms/programs/criminal-justice/ExecSessionStateCourts/ES-StateCourtsGovernancePrinciples.pdf.
115

114

Id. at 4. Id. at 6. 119 Court Organization, Judges, Court Governance, http://www.utcourts.gov/knowcts/ (last modified Oct. 11, 2012).
118 120

117

UTAH

STATE

COURTS, COURTS, COURTS,

An Overview of the Utah District Courts, UTAH STATE http://www.utcourts.gov/courts/dist/overview.htm (last modified Nov. 8, 2012). 121 An Overview of the Utah Juvenile Courts, UTAH STATE http://www.utcourts.gov/courts/juv/overview.htm (last modified Nov. 27, 2012).
122

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Judicial Branch.123 The Council seeks and considers input from all sources and then makes decisions based on the best interests of the system as a whole.124 It is this effective governance model that has enabled the Utah Judiciary to make substantial changes to their business practices, partly in response to the economic recessions impact on state revenue and budgets. These changes have been made not only to ensure that access to the courts and services were not reduced as a result of budget reductions, but also to adopt a business plan that would allow the court system to emerge with improved access, better services, improved use of resources, less delay, and better performance. 2. Applying the Decision-Making and Case Administration Principles for Judicial Administration These principles address the manner in which courts process cases and interact with litigants.125 The Utah Judicial Council has taken steps to make sure that court interaction with litigants promotes access to the courts and access to justice. The Council has developed programs to assist self-represented litigants.126 Self-represented parties seeking assistance can find information on the Utah Courts website.127 Any member of the public can obtain information and forms free of charge.128 They may also obtain assistance in preparing a variety of court documents from the Utah Online Court Assistance Program (OCAP).129 For example, 40% of all uncontested divorce cases in Utah are filed through OCAP.130 In 2007, the Utah Judicial Branch opened its own centralized self-help center.131 The center is located in the State Law Library;132 aided by one full123 124

Court Organization, Judges, Court Governance, supra note 119. SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at i. 125 NATL CTR. FOR STATE COURTS, PRINCIPLES FOR JUDICIAL ADMINISTRATION 7 (2012), available at http://www.ncsc.org/Information-and-Resources/Budget-ResourceCenter/Analysis_Strategy/~/media/Files/PDF/Information%20and%20Resources/Budget%20R esource%20Center/Judicial%20Administration%20Report%209-20-12.ashx. 126 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at i. 127 See Self-Help Resources / Self-Represented Parties, UTAH STATE COURTS, www.utcourts.gov/selfhelp/ (last modified Mar. 21, 2013).
128 Online Court Assistance Program Document Preparation, UTAH STATE COURTS, http://www.utcourts.gov/ocap/ (last visited Apr. 6, 2013).

Id. SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 32. 131 UTAH STATE COURTS, A DECADE OF PROGRESS: 2012 ANNUAL REPORT TO THE COMMUNITY 9 (2012), available at http:www.utcourts.gov/annualreport/2012CourtsAnnual.pdf.
130 132

129

Nicole Farrell, Attorney Volunteers in Court, UTAH B.J., Mar.-Apr. 2010, at 24.

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time and two part-time employees, it operates as a virtual site. Center staff guide self-represented parties through the forms and instruction on the Utah Courts self-help resources website by phone, through online chat functionality, and by e-mail.133 The Utah Judicial Branch has instructed librarians located in rural areas on how people can access these resources on library computers.134 Selfrepresented litigants can attend classes conducted by the Administrative Office of the Courts (AOC) staff and local volunteer attorneys or view recorded classes that have been posted on YouTube.135 The Judicial Council has also established a comprehensive court interpreter program in an effort to ensure that persons with limited proficiency in the English language have the assistance needed to enable them to communicate and understand what is happening in the courtroom.136 The judiciary provides interpreting services in more than sixty languages.137 In May 2011, the Judicial Council adopted a rule extending court interpretation to all those needing such services in all types of court actions.138 To provide quality interpretation in rarely used languages and in remote areas of the state, the Utah Judiciary installed equipment in a few courthouses to enable remote interpretation. The judiciary is examining whether litigants and witnesses can receive quality interpretation services while saving interpreters the time of traveling to courthouses and saving the state the cost of reimbursement for travel. The Utah Judiciary provided all the needed hardware and software to conduct remote interpretation.139 The Utah Judicial Council took additional steps to enhance case administration, improve business processes, and reduce costs to litigants and taxpayers, including: the development of a mature ADR program; the reform of the discovery process; the evaluation of performance at all levels of organizations; and the implementation of a comprehensive electronic agenda, including a move to an electronic record.140
UTAH STATE COURTS, ANNUAL REPORT TO THE COMMUNITY 8 (2013), available at http://www.utcourts.gov/annualreport/2013-CourtsAnnual.pdf. SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. See generally Utah State Courts, YOUTUBE (Apr. 6, 2013), http://www.youtube.com/user/UtahStateCourts/Videos?view=0. 136 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. 137 Id. 138 UTAH R. J. ADMIN. 3-306. 139 See STATE OF UTAH JUDICIAL COUNCIL, LANGUAGE ACCESS IN THE TRIAL COURTS OF RECORD: 2010-2012, at 14, 18 (Nov. 19, 2012), http://www.utcourts.gov/committees/CourtInterpreter/Language%20Access%20Report.pdf.
135 134 133

Utah is now using technology to enable litigants to electronically file and serve process in their cases. The case management system for all four of the Utah courtsdistrict, juvenile, justice, and appellateshares a single integrated database that incorporates all of the courts

140

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The Keys to Reengineering Utahs Courts

The keys to reengineering Utahs courts include the following steps: (1) comprehensive reorganization of the clerk of courts duties in preparing work in an electronic environment, and to facilitate an enhanced focus on case management; (2) the statewide conversion to a comprehensive electronic record system; (3) conversion to a digital record of court proceedings;141 and (4) the reform of civil case discovery.142 4. The Comprehensive Reorganization of the Clerk of Court Operation143

The Utah Judiciary created a clerical structure designed to serve the future operations of the courts while attracting and retaining a more professional workforce. This new structure was built on three core principles: (1) a structure to support future court operations in an electronic environment; (2) a team-oriented approach to clerical operations; and (3) a competency-based professional development advancement protocol. The court recognized that the move toward electronic payment and filing changed how clerical staff interacted with the public. As a result, courts will need a more educated, highly-trained clerical staff and an appropriate structure to account for the positions increasingly professionalist role in fulfilling the mission of the courts. Clerical work done by entry-level clerks in a paper environment now requires advanced-level work in an electronic environment. Prior to this conversion, 88% of staff members were in entry-level positions; today 21% of staff members perform entry-level work. Clerks offices now see 54% of their staff doing advanced clerical work. Supervisors and senior management positions comprise 24% of the clerical workforce.144 5. The Statewide Conversion to a Comprehensive Electronic Record System145

The paperless electronic court record is having a major impact on the litigation process, speeding up the disposition of cases while reducing litigation costs.146 At the same time, the electronic record makes it possible for the courts to develop and implement new business processes that

documents into a paperless case file.


141 142 143 144 145 146

SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 6. Id. at 7-8. Id. at 10. Id. at 8. Id. Id. at 10.

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enhance quality and performance while saving time and money. In Utah, instead of paper court documents being stored in paper files, documents are electronically filed into an electronic, digitally-certified court record. Instead of clerical staff members running to the bank with checks and deposit slips, litigants are paying fines and fees electronically. Instead of clerks office staff members answering telephone inquiries on the status of case hearings and events, litigants and the public can access the case file themselves through an online inquiry system; litigants can also access confidential information through a secure online inquiry.147 6. The Conversion to a Digital Record of Court Proceedings and Managing Transcript Production148

Historically, court stenographers attended every court hearing making a verbatim record of every word spoken in the courtroom on a paper tape. Then, if a transcript was needed the stenographic reporter, and only the stenographic reporter, could produce a verbatim transcript. Today, all of Utahs courtrooms are equipped with digital recording devices that store the audio and video record of proceedings on the courts computer network. A roster of certified transcribers, composed mostly of former court reporters, now prepare timely transcripts from the digital recordings.149 B. Reengineering the Courts of New Hampshire In March 2010, the New Hampshire Supreme Court, led by the thenChief Justice John T. Broderick, established the Judicial Branch Innovation Commission. They recruited state business and legislative leaders, as well as experts from the National Center for State Courts, to work with the judicial branch to identify changes needed to meet the increasing demand for court services while state resources are in severe decline.150 The Commission set forth the following principles, adopted by the New Hampshire Supreme Court, to guide its work: New Hampshire courts must maintain and improve access to justice by New Hampshire citizens, families, and businesses. New Hampshire courts must sustain the rule of law while treating all citizens with fairness, respect, and integrity. New Hampshire must deliver timely, efficient, understandable, and costeffective access to justice.151
SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 10, 11. Id. at 13. 149 Id. 150 REPORT OF THE JUDICIAL BRANCH INNOVATION COMMISSION 5 (2011), available at http://www.courts.state.nh.us/cio/innovationcomm/FinalReport.pdf.
148 151 147

Id. at 8.

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The Final Report of the Innovation Commission to the Supreme Court152 included twenty-three recommendations for implementation over ten years. The New Hampshire Supreme Court submitted the Commission Report to the New Hampshire Legislature which adopted many of the recommendations. The legislature determined that some of the recommendations should be implemented immediately.153 As a result of the work of the Innovation Commission, the Supreme Court, and New Hampshires court leaders, the New Hampshire Judiciary has restructured and reengineered its operations. 1. The Unification of the Probate Courts, District Courts, and Family Division

In 2010, the New Hampshire Judiciary had four trial court operations, each with its own judges, clerks, registers, and managers. These included the superior court, probate court, district court, and family division.154 Today, the New Hampshire Judiciary has two trial courts, the superior court and the circuit court. 2. Judicial Restructuring for the Circuit Court

In 2010, the judges of each court heard and decided cases only in the court or division to which they were appointed. A process was developed to allow judges to apply for certification in any division of the circuit court in which they can demonstrate competence or are willing to receive training in order to achieve competence.155 Today, district-division judges are certified to hear juvenile matters and domestic violence casesin 2010 these matters were in the family division. Similarly, probate-division judges are now certified to hear minor guardianship and termination-ofrights casesin 2010 these matters were also in the family division. This certification gives clerks more flexibility in case scheduling.156 The New Hampshire Judiciary began moving judges to court locations
Id. at 3-4, 7. See N.H. REV. STAT. ANN. 490-F:1 (2011). 154 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO FISCAL COMMITTEE OF THE GENERAL COURT ON IMPLEMENTATION OF RECOMMENDATIONS CONTAINED IN THE JUDICIAL BRANCH INNOVATION COMMISSION REPORT 3 (July 1, 2011), available at http://www.courts.state.nh.us/nh-e-courtproject/quarterlyreport_july2011/QuarterlyReport.pdf. 155 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO THE FISCAL COMMITTEE ON IMPLEMENTATION OF RECOMMENDATIONS CONTAINED IN THE JUDICIAL BRANCH INNOVATION COMMISSION REPORT 3 (Sept. 30, 2011) [hereinafter N.H. JUDICIAL BRANCH QUARTERLY REPORT TO FISCAL COMMITTEE], available at http://www.courts.state.nh.us/nh-e-courtproject/Quarterly-Report-of-All-Courts-October-1-2011.pdf.
153 156 152

Id.

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commensurate with workload demands. These changes in judicial assignment will draw attention to caseload needs across the state and more effectively address backlogs in specific court locations.157 3. Management Restructuring for Circuit Courts

In 2010, the courts and divisions of the probate and district courts had fifty-two clerk or register management positions. Today, the circuit court has twenty clerk or register management positions and this management restructure resulted in annual savings of $2 million.158 4. The Circuit Court Call Center

The few remaining staff members in the circuit court need to be able to focus on the work that must be done in the courthouse, including the scheduling and noticing of cases and making the court record. The New Hampshire Judiciary established the Circuit Court Call Center to enable courthouse staff members to focus on their work, to reduce the number of interruptions, and to enhance the timeliness of service to persons who call the courthouse seeking assistance. Today a centralized call center, physically located in the state capital, handles more than 2,600 calls each day.159 Staff at the call center promptly provide needed information to callers. Only 30% of the calls require transfer to the courts themselves. Call-center personnel assist selfrepresented and other callers by e-mailing them information and forms on how to proceed with their case. The center also sends information by United States Postal Service to callers who do not have access to e-mail.160 5. Consolidation of Management of the Superior Court

The New Hampshire Judiciary consolidated the management of six smaller Superior Courts, with annual savings of $300,000.161 6. The New Hampshire e-Court Project162

The Innovation Commission recommended that the New Hampshire Judiciary abandon paper-bound processes in favor of digital documents, records, and processes. The e-Court project envisions conducting

Id. at 4. Id. 159 Id. at 5. 160 Id. at 4. 161 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO FISCAL COMMITTEE, supra note 155, at 8. 162 New Hampshire Judicial Branch, NH e-Court Project Overview (Mar. 4, 2013), http://www.courts.state.nh.us/nh-e-court-project/NH-e-Court-overview.pdf.
158

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transactions electronically, seemlessly interfacing with the current casemanagement system. E-Court is to include: (1) e-File; (2) e-Payments; (3) eDocket; (4) e-Schedules; (5) e-Citations; (6) e-Self-Help-Case Files; (7) eDocument Management; and (8) e-Signature-Notice.163 New Hampshire courts are fully engaged in implementing e-Courts in the coming years. C. Reengineering the Courts of Minnesota

In 2008, the Minnesota Judicial Council created an Access and Service Delivery (ASD) Committee and charged it with examining the operations and structure of the Minnesota Judiciary and developing recommendations related to the number of court locations, services to be provided in each court location, the hours of operation, the appropriate use of ITV, cost containment or reduction through technology and efficiencies to be gained in the way court business processes are handled . . . and consideration of appropriate out-sourcing.164 The ASD Committee evaluated proposed options using four criteria: cost impactthe net savings to the court; feasibilityan assessment of possible constraints to implementation from all sources; service impact any changes in quality of services provided to court stakeholders; and time impacthow long it will take to implement the option and gain benefits.165 The ASD Committee determined that a fundamental, long-term redesign of the court system was necessary. Recent initiatives, such as state funding and the new statewide case management system had provide[d] opportunities for increased efficiencies through centralization and greater public access to the courts through electronic service delivery.166 The court needs to re-invent itself: change the way it delivers services and provides access.167 In 2008, the Council created a second ASD Committee to study longer term service delivery topics.168

NH e-Court Project Mission Statement, NEW HAMPSHIRE JUD. BRANCH, http://www.courts.state.nh.us/nh-e-court-project/index.htm (last visited Apr. 8, 2013).
164 ACCESS AND SERVICE DELIVERY COMM., REPORT TO MINNESOTA JUDICIAL COUNCIL 3 (July 17, 2008), available at http://www.supremecourt.ohio.gov/Boards/courtFunding/resources/Minnesota/Report.pdf.

163

Id. Id. at 4-5 (footnote omitted). 167 Id. at 5. 168 ACCESS AND SERVICE DELIVERY 2 COMM., REPORT TO JUDICIAL COUNCIL, at v (Dec. 14, 2009), available at http://www.ncsc.org/services-andexperts/~/media/files/pdf/services%20and%20experts/court%20reengineering/minnesota%20a sd%202%20final%20report.ashx.
166

165

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Strategies to Shape the Court of the Future

Over the past four years, the Minnesota courts have faced a funding crisis. Cuts to their budget taken from FY09 to FY11 totaled $18.5 million.169 The number of staff members in the trial courts was reduced by more than 200 positions, or 8.3% of the workforce.170 The Judicial Council, based on the work of the ASD Committees, adopted strategies to respond to the funding crisis and to shape the court of the future. These strategies included both restructuring the management of the trial courts,171 and reengineering workflow in an electronic environment.172 New technologies were developed to offer access to all of the courts services from every court location, or in some cases, from any location via the internet, telephone, or other electronic means. 2. Reengineering the Minnesota Courts Through Centralization and Automation173

The Judicial Council and State Court Administrators Office have reengineered their business processes by implementing a number of initiatives, taking advantage of the opportunities opened up to them in their new electronic environment.174 The Minnesota Judicial Branch has centralized payments through its Court Payment Center (CPC).175 Work that was previously handled from
See COSCA BUDGET SURVEY, supra note 15, at 36. Id. 171 Some districts have chosen to restructure by reducing the number of court administrators in the district. Instead of maintaining one court administrator per county, districts are operating with court administrators who manage the courts of multiple counties. Some districts have agreed to share a single district administrator. In addition to saving money, this arrangement makes collaborations between multiple districts possible, leading to further reductions of costs through economies of scale.
170 172 The judicial branch has begun implementation of an ambitious multi-year transformation project to move the court system from a paper centered system to an electronic records environment. COSCA BUDGET SURVEY, supra note 15, at 42-45. The project, called eCourtMN is now leveraging existing resources to invest in technology initiatives which include e-Filing, an enhanced case management system, an electronic document management system and electronic workflow. Id. Rather than filling vacant positions, the Branch is using salary savings along with other funding sources to create and make needed eCourtMN enhancements. Id. 169

Id. Id. 175 See The Minnesota Court Payment Center (CPC) Process Considerations for Law Enforcement, MINNESOTA JUDICIAL BRANCH, http://www.mncourts.gov/Documents/0/Public/Justice_Agency/Process_Considerations_for_L
174

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the courthouses in the eighty-seven counties around the state was moved to a new, centralized virtual center using fewer, less expensive staff working from their home offices. Service and quality have improved courts now deposit payments on the day received. The response to inquiries is quick and consistent, and no longer depends on the location of the caller. Litigants can pay all fines at one location, twenty-four hours a day, seven days a week. This reengineering effort has resulted in faster citation processing, increased collections, and additional levels of service, despite the courts now operating with 10% fewer staff members.176 A second initiative was the centralization of collections. The Minnesota Judiciary adopted and implemented standard statewide processes and policies, enhancing the collection of fines and fees due to the state. As a result, total collection revenue increased from $4.68 million in FY2009, to $20.23 million in FY2012.177 A third initiative was the centralization of assistance to selfrepresented litigants: the centralized self-help center. Through this initiative, the judiciary provides a web-accessible self-help center (SHC)178 that includes explanations, required forms, and tutorials on the most common types of court actions. For persons who do not have internet access, every courthouse has a public access terminal that anyone can use to access this information. In 2011, the SHC was accessed 693,000 times, an increase of approximately 18% over the prior year.179 The SHC provides assistance to persons located in all corners of the state. The SHC uses document-assembly software to enable persons to complete court forms by answering questions about their case. The SHC is now working to incorporate this software into the courts e-filing system.180 The last initiative was the centralization of jury management. Prior to 2009, the Minnesota jury management system was loaded on 89 different databases, and juror information on each database was maintained by jury staff at each court location.181 Under the Consolidated Jury Database Project, the Minnesota Judiciary used new automated technologies for summoning and qualifying Minnesota citizens for jury services. The project

aw_Enforcement.pdf (last visited Apr. 8, 2013). Klaversma & Suskin, supra note 97, at 14. Id. at 16. 178 Self-Help Center, MINNESOTA JUDICIAL BRANCH, http://www.mncourts.gov/selfhelp (last visited Apr. 3, 2013).
177 176

REPORT TO THE COMMUNITY: THE 2011 ANNUAL REPORT OF THE MINNESOTA JUDICIAL BRANCH, MINNESOTA JUDICIAL BRANCH 6 (2011), http://www.mncourts.gov/Documents/0/Public/Court_ Information_Office/AR_11_Final2.pdf.
180 181

179

Id. at 17. Kalversma & Suskin, supra note 99, at 18.

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also centralized and outsourced the Juror Summons/Questionnaire; developed an online juror qualification questionnaire; eliminated prepaid postage on returned juror questionnaires; and centralized, automated, and outsourced juror postcard notices.182 As a result, the courts reduced jury operating costs by saving $103,500 per year in postage, improved staff efficiency by saving four positions, and improved juror service by enabling 45,000 jurors, or 26%, to respond online.183 D. Reengineering the Courts of Vermont

In May 2008, the Vermont Legislature called upon the Vermont Supreme Court to address a number of issues: the consolidation of staff and staff function; the regionalization of court administrative functions; the use of technology to reduce expenditures and improve access; the reallocation of jurisdiction between courts; and a reduction of 3%, or $1 million, from the state judiciarys general fund budget.184 The Supreme Court established a fifteen-member commission, chaired by a justice of the Supreme Court, that included: judges; court administrators; current and former legislators; executive-branch department heads; the secretary of state; a representative from the business community; and attorneys.185 The Commission analyzed the entire court system to provide more efficient and effective ways of serving Vermonters while identifying at least $1 million in savings. The surveys and focus groups involved more than 800 participants, including many court users, who offered more than 360 suggestions and proposals.186 The Commission made more than a dozen recommendations, which, if adopted, would permanently reduce Vermonts funding of its Judicial Branch by $1.2 million and reduce each countys share of the judicial budget, funded by property taxpayers, by an additional $1 million.187 The Vermont Supreme Court adopted a set of principles describing their values to guide their reengineering efforts: (1) Judicial Branch judges

See Juror Qualification Questionnaire, MINNESOTA http://www.mncourts.gov/?page=3603 (last visited Apr. 8, 2013).
183 184

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JUDICIAL

BRANCH,

Klaversma & Suskin, supra note 97, at 19. VT. COMMN ON JUDICIAL OPERATION, FINAL REPORT TO THE LEGISLATURE 1 (2009), available at www.vermontjudiciary.org/commissionLibrary/Final%20Report%20%20word.pdf.
185 See Commission on Judicial Operations, VERMONTJUDICIARY.ORG, http://www.vermontjudiciary.org/MasterPages/WhatsNew-CommissionJudicialOps.aspx (last visited Apr. 3, 2013). 186 VT. COMMN ON JUDICIAL OPERATION, FINAL REPORT TO THE LEGISLATURE, supra note 184, at 1. 187

Id. at 43.

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are fair, impartial and competent, and composed of men and women of integrity; (2) the Supreme Court operates the state court system as a unified system; (3) [t]he Supreme Court manages, controls and is accountable for all resources; (4) the Judicial Branch is organized with minimal redundancies in structure, procedures and personnel, and has an efficient balance of workload among courts; and (5) Judicial officers issue timely decisions that do justice for the litigants. . . .188 The Vermont Judiciary used these principles to analyze the host of recommendations produced by more than 100 focus groups and fashion a final set of strategies. Vermont, working with the Bar, the public, and the other branches of government, implemented a number of steps to restructure its court system. In June 2010, Governor James Douglas signed Act 154, legislation that restructured the Vermont Judicial Branch. 189 As a result, Vermont moved from multiple trial courts to a single superior court with four divisions: civil, criminal, family, and probate. The superior court is now administered by the Vermont Supreme Court on a county basis, with staff support directed by a single manager. The manager, in turn, is appointed by the court administrator and a presiding judge designated by the administrative judge for trial courts. Vermont moved from a mix of county and state decision makers, determining the pay and benefits of court staff and how they would be managed, to a state-wide system of comparable pay and benefits for all employees. Vermont also moved from a mix of county and state funding of the courts to state funding. Revenue from small-claims filing fees moved to the States General Fund as Vermont took responsibility for court staff costs borne by the counties. This offset a portion of the cost of converting county employees into state employees. With the creation of a single superior court with four divisions and one court manager, the number of middle management positions was reduced. E. Reengineering the Court of Oregon The Oregon Supreme Court adopted a critical principle: the courts would continue to process and resolve all categories of cases. This set the adjudication function of the courts as the top priority. Consequently, many administrative services, which were not as high a priority, were eliminated.190

188 VT. COMMN ON JUDICIAL OPERATION, INTERIM LEGISLATIVE REPORT 7 (2009), available at http://www.vermontjudiciary.org/commissionLibrary/Interim_Legislative _Report_FINAL.pdf. 189 An Act Relating to Restructuring of the Judiciary, No. 154, 1, 2010 Vt. Acts & Resolves 4 (revising VT. STAT. ANN. TIT. 4, 1 (2010)). 190

See Kimberly Melton, State Superintendent Susan Castillo Criticizes a Proposal to Eliminate

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Over the past four years, the Oregon courts were confronted with major budget reductions.191 They were forced to make an 8% reduction in the number of staff members working in the trial courts.192 They reduced hours of operation and delayed jury trials.193 The Oregon courts froze the salaries of judicial officers and court staff.194 The Oregon courts took a number of measures to positively respond to their crisis. They secured a 100% increase in technology funding, enabling them to implement their statewide integrated software system, Oregon eCourt.195 This integrated system comprises e-Filing, an electronic document management system, and electronic workflow.196 Courtroom staff members make entries of court proceedings into the courts management information system in real-time and print and distribute notices of hearings and orders to the litigants, saving the time and expense of subsequent data entry and noticing.197 The Oregon courts are transitioning to the digital recording of court proceedings. Oregon also developed virtual self-help centers for self-represented litigants and developed a web-based information center to provide public access to court records.198 Courthouses and clerk management positions were consolidated;199 and staff was reallocated.200 The Oregon courts created a centralized call center and an integrated hub that enables the electronic payment of fines and fees.201 They also centralized the collections process.202 F. Reengineering Efforts in States Throughout the Country

A number of additional states are taking steps to restructure their


Oregon Writing Assessment, THE OREGONIAN, http://www.oregonlive.com/politics/index.ssf/2011/05/state_superintendent_susan_cas.html (last updated May 19, 2012, 9:32 PM). See COSCA BUDGET SURVEY, supra note 15, at 56-57. Id. at 56. 193 Id. 194 Id. 195 See id.; David Factor, Oregon eCourt Update: Better Access, Better Information and Better Outcomes are on the Way, OR. ST. B. BULL. (June 2012), http://www.osbar.org/publications/bulletin/12jun/courtreport.html. 196 See COSCA BUDGET SURVEY, supra note 15, at 56. 197 See About Oregon eCourt: The Vision, OR. JUD. DEPT, http://court.oregon.gov/oregonecourt/About.pages (last visited Apr. 8, 2013).
192 198 199 200 201 202 191

See COSCA BUDGET SURVEY, supra note 15, at 56-57. Id. at 57. Id. Id. See id.

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systems and adopt new business processes to enhance quality and services while reducing costs.203 Two-thirds of the states have taken steps or will take steps in the coming years to implement versions of eCourt, including the implementation of electronic filing, the creation of electronic records and case files, and the ability to pay fines and fees electronically.204 Onethird of the state court systems have developed virtual self-help centers to assist self-represented litigants.205 Half the states are transitioning from stenographic court reporters to producing the courtroom record and transcript by persons who monitor digital audio recording equipment.206 More than half of the state courts are conducting the arraignment of incarcerated defendants through videoconferencing.207 One-third of the states are using remote videoconferencing of interpreters to provide quality interpretation for those with limited English proficiency.208 In efforts to restructure, at least eight states are reallocating judges to districts based on weighted caseload measures. Half the states are reallocating trial court staff. At least seven states have consolidated or reduced the number of trial court management positions. In efforts to centralize, centralized call centers are being established in at least ten states; centralized payment centers are being established in at least seven states; and centralized collections processing is being established in at least nine states. V. Responding to the CrisisEngaging the Legislative and Executive Branches State judicial branch leaders who restructured and reengineered their court systems in accordance with the Governance Principles, as well as with the Decision-Making and Case Administration Principles, placed themselves in the position of working with legislative branch leaders to fund the courts in accordance with the Court Funding Principles. Yet, with regard to the Principles for Developing and Managing the Judicial Budget, one-third of the state legislatures do not consider Judicial Branch budget requests . . . submitted by the Judiciary.209 Only onequarter of the state legislatures provide judicial branch leadership the authority to allocate resources with a minimum of legislative and executive branch controls including budgets that have a minimal number

203 204 205 206 207 208 209

See generally COSCA BUDGET FINAL ANALYSIS, supra note 29. Id. Id. Id. Id. Id. NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 4.

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of line items.210 With regard to the Principles for Providing Adequate Funding, only half of the state court administrators report that their court system is funded to provide needed technologies.211 Justice at Stake and the National Center for State Courts recently joined forces to examine what strategies and messages could help make a stronger case for court funding. The organizations commissioned a nationwide research project to understand how to better tell the story of the courts to legislators and others who shape budgets. The survey reveals that the judiciary faces steep challenges in the court of public opinion: public distrust of government taints the courts; Americans are demanding austerity and focusing on other priorities; and public confidence in court performance is not strong. The focus groups and polling make very clear that most Americans are simply not supportive of appeals for court funding at present. Longer-term campaigns are needed to persuade them. In the short-term, the report calls upon supporters of increased court funding to expend their limited capital on persuading key lawmakers and other decision-makers. Court leaders must choose the messengers that policymakers trust most: supreme court justices, lawyers within the legislature, judges from the lawmakers district, and business leaders. Court leaders must make relationship-building a year-round process and must respect the budget process and those who run it. Collaborative staff-level work between the branches and the budget office is essential. Further, in accordance with the Principles for Court Funding, court leaders must propose a credible budget. Court leaders must build broad-based coalitions and us[e] them as real-world ambassadors on behalf of the courts . . . .212 As detailed in an article arising from the Executive Session for State Court Leaders in the 21st Century,213 an honest assessment of how the executive and legislative branches regard the judiciary is necessary before embarking on a strategy of advocating for funding.214 Some governors and legislators do not consider the courts a coequal third branch of government, and thus, court funding must undergo the same level of

COSCA BUDGET FINAL ANALYSIS, supra note 29. COSCA BUDGET SURVEY, supra note 15, at 7. 212 NCSC, FUNDING JUSTICE, supra note 19, at 15. 213 GREG A. ROWE, KEEPING COURTS FUNDED: RECOMMENDATIONS ON HOW COURTS CAN AVOID THE BUDGET AXE 3, http://www.ncsc.org/Services-and-Experts/Courtleadership/HarvardExecutiveSession/~/media/Files/PDF/Services%20and%20Experts/Harvard%20Executive%20S ession/keeping%20courts%20funded.ashx (last visited Apr. 3, 2013).
211 214

210

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scrutiny as every other budget line item. Court leaders must realize that every line item, including court funding, is on the table for budget cuts. Court leaders must develop relationships with key individuals and groups, especially within the legislature. They must find a powerful ally in the legislature, partner with the legislative and executive branches on other projects, and engage directly with the legislature and executive branch on non-budgetary matters. To achieve this, a clear and coherent communication strategy is needed, which includes increasing accessibility to court leadership; selecting the right spokesperson; speaking with one voice; highlighting successes; presenting with good data; and clearly emphasizing the real-life impact that budget cuts will have. During the budget process, court leaders must acknowledge that courts are competing directly with the priorities of governors and legislators. In accordance with the Court Funding Principles, they need to collect data and publish performance measures which demonstrate fiscal prudence.

CONCLUSION
Courts remain the final line of protection for individual rights and upholding the Constitution. But, as we have learned from the survey of state court administrators, funding cuts are putting fundamental constitutional protections and access to justice at risk. Courts must be funded to enable them to perform their important core functions: maintaining a peaceful and orderly society, [] providing stable resolution of business and commercial disputes . . . [, and] maintaining the rule of law so fundamental to a democratic nation. . . .215 In fulfilling these core functions, courts must ensure that persons are not denied justice due to the cost or time needed to pursue their day in court. They must provide access to all persons, providing accommodations to persons with language difficulties or other financial, physical, or mental disabilities; they must ensure that delay in the resolution of disputes does not in and of itself result in the denial of justice; and they must provide judges with the time in the courtroom needed to enable litigants to present all necessary evidence and arguments in their cases and to then write decisions in accordance with statute and case law. 216 But, court leaders cannot just send the legislature a bill for what it costs to perform those functions. They must examine their system to determine whether they are governing in accordance with the Principles for Judicial Administration. They must ensure that they are taking steps to reduce costs

215 216

NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 18. Id. at 15.

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and enhance court services. As some have done,217 court leaders must examine their court structure to ensure that it enables them to manage their operations, measure their performance, and hold themselves accountable for providing access to justice and court services in an efficient and effective manner. As more than half have already done, court leaders must embrace the technologies and business processes of the twenty-first century that enable judges, court staff, attorneys and the public to electronically file documents, create and access records, and complete financial transactions. Court leaders must also build collaborative relationships with the other branches of government to enable the executive and legislative branch leaders to trust that court leaders are requesting only those funds needed to improve quality, reduce costs, and provide meaningful access to justice.218 The other branches must then endeavor to provide those funds and to give court leaders the flexibility and authority to manage these resources.

217 218

See supra Part IV.A-F. See NCSC, FUNDING JUSTICE, supra note 19, at 10-12.