Facing Down a Budget Crisis, Rising Workloads, Two Judicial Elections and Living with Facebook: The State Courts in 2009

Efforts to prevent budget cutbacks from diminishing the quality of justice in this country kept the state courts in the news during 2009. That task was hindered by the continuing rise in the number of new cases filed. One repercussion of economic downturns is the potential for relationships between the branches of state government to fray, but hard times in 2009 also promoted interbranch cooperation on topics like mortgage foreclosure. Pennsylvania and Wisconsin were the only states to hold state supreme court elections, but two major U.S. Supreme Court decisions promise to reshape the election scene for judges nationally. State courts also made news as they confronted the rush of change associated with the growing influence of social media.

Book of the States 2010, Chapter 5: State Judicial Branch

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Staring Down the Budget Crisis

The recession of the early 2000s was pegged as the deepest and longest since the Great Depression, but it is looking positively sunny compared to the recession that began in late 2008. According to the Washington, D.C.-based Center on Budget and Policy Priorities, 48 states are facing projected budget deficits amounting to $599 billion between 2009 and 2012, more than double the $606 billion deficit of the recession from 2001 to 2005.1 More than four out of five state courts systems are predicting budget deficits in 2010—and seven are looking at cuts of more than 8 percent for the 2010 fiscal year. The consequences of these deficits are, invariably, deep, deep cuts.2

Massachusetts Chief Justice Margaret Marshall, the immediate past president of the Conference of Chief Justices, the national association of high court leaders, notes that state courts are in such a budget crisis they have reached “the tipping point of dysfunction."3 A few months later, Georgia Chief Justice Carol Hunstein used her annual state of the judiciary message to intone “that some court systems (are) on the edge of an abyss."4

In response to the crisis, many state courts focused on short-term budget saves. Nearly half the state courts are now operating under hiring freezes, while others have also frozen salaries and cut pay for staff; some states have asked judges to share the pain. More radical short-term cost-saving options include furloughing staff, an option employed in more than a dozen states, including in Vermont, where both staff and judges are required to take leave without pay, resulting in delays in concluding cases. As Utah Chief Justice Christine Durham recently noted in a speech to the American Bar Association, “In one state it now takes up to 60 days to hold a hearing in a temporary custody case that used to take just a few weeks.”5

Vermont is joined by California, Iowa and Minnesota in closing courthouse doors to the public during regular business hours, creating inconvenience and delays for many seeking the swift administration of justice. To generate revenue, legislatures in at least 13 states hiked filing fees. And courts everywhere are being asked to do even more with less.

As The New York Times noted on its editorial page at the end of 2009, “At some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.”6

In Florida, an economic consulting firm confirmed claims by court leaders that cutbacks to the judicial budget weaken a state’s economy. Speedy trial rules require courts to give priority to processing criminal cases. As court resources decline, civil cases inevitably are delayed. The consulting firm estimated “the backlog of real property/mortgage foreclosure cases alone directly results in an estimated $9.9 billon of added costs and lost property values for Floridians each year. Backlogs of other civil cases create an additional $200 million of added costs each year.”7

Cutbacks Amid an Increasing Workload

The continuing growth in the number of cases being filed in the state courts makes the consequences of budget cutbacks particularly acute. More than 98 percent of all trial court cases and 85 percent of all appeals are filed in state courts. State courts have no control over the volume and types of cases they must decide. The number and type of cases depend on the litigiousness of the public, businesses and state and federal government entities. Caseload trends illustrate how our economy and society are changing.

The work performed by the state courts in recent years is compared to the work performed in the late 1990s in the table shown below. For various reasons, tabulating caseload numbers always lags by a few years; 2008 statistics will be available in mid-2010.8

Torts and contracts.In the 1970s and 1980s, there were concerns America was becoming an “overly litigious society,” as evidenced by the number of tort cases being filed for product liability, personal injury and medical malpractice. In recent years, however, the number of tort cases filed has been on the decline—by nearly 25 percent over the last 10 years. Over the same period, however, the number of contract filings grew by 37 percent—up 11 percent between 2006 and 2007. The growth in contract cases is likely to continue because of the recession and its aftermath. Trends in mortgage foreclosure cases demonstrate the consequences to the courts of fluctuating economic conditions. Between 2003 and 2007, the number of foreclosure case filings in the state courts grew by 54 percent. That number is based on nine states that provided sufficiently detailed statistical information. For instance, the Ohio courts in 2007 received 92,000 new foreclosure cases in their main trial court.9

Criminal cases.Over the 10-year period under discussion, criminal cases increased by 9 percent but declined by 3 percent on a population-adjusted basis according to the table below. The overall trend masks significant differences according to the type of crime. The number of new felony (serious) criminal case filings has been growing more rapidly than the number of new misdemeanor (minor) case filings. The number of drug offenses in state court caseloads for a relatively small number of states can be tracked. But the best available estimate is that about 30 percent of all cases involve a charge involving illegal drugs. The number of felony drug cases in the state courts increased by 26 percent between 2003 and 2007. The 10 states maintaining the data necessary showed either a slight increase or a decrease between 2006 and 2007 in the number of felony drug cases, so it is unclear whether the upward trend is winding down or pausing before another increase.

The accuracy of what is known about court caseloads increased dramatically in recent years through automation of court management information systems and growing adherence by states to nationally developed standards for how to collect and report court statistics. The National Center for State Courts in 2009 inaugurated a “Reporting Excellence Award” program to recognize the strides states are making in providing legislators, members of the public and court managers with quality data describing the work of trial and appellate courts and also to encourage other states to take similar steps to improve their court statistics.10

Separate Branches, Shared Responsibilities

Though interbranch conflict is a familiar theme throughout American history,11 the last decade revealed a steady upward trajectory in rhetorical attacks from legislative and executive leaders, at times fanned by the ideological extremes in American politics, especially from the right side of the political spectrum. Over the last decade, a push and pull between the judiciary and the political branches of government was shaped largely in terms of fiery populist rhetoric criticizing courts for controversial decisions. The case most emblematic of this renewed tension involved the 2005 right-to-die case of Terri Schiavo, in which a Florida trial court judge received numerous threats on his life for the way he handled the case. The politics around the Schiavo case highlighted the strong, principled support for the courts held by most Americans, who looked on scornfully as Congress attempted to rewrite laws to produce the outcome they thought was politically expedient.

Over the last two years, financial distress served to trump the culture wars in interbranch relations involving the courts. If anything, budget battles further strained tensions among the three branches of state government.

In May 2009, the National Center for State Courts and the American Bar Association co-hosted a conference in Charlotte, N.C., that brought together hundreds of leaders from the three branches of government to discuss the need for better interbranch cooperation.12 More than three dozen state chief justices or their delegates attended the meeting, along with leaders and senior staff from the legislative and executive branches. The conference also featured a keynote from former U.S. Supreme Court Associate Justice Sandra Day O’Connor, who urged those in attendance to work to depoliticize judicial selection processes. The conference helped build small working groups from the states; many in attendance returned home with a new sense of urgency in promoting better cooperation among the branches. The delegation from Utah, for instance, continues to follow up the conference with periodic meetings of their own.

Before the conference, the National Center for State Courts undertook a major study of public opinion on interbranch relations.13 The survey, according to National Center for State Courts President Mary McQueen, reveals that “Americans expect more from all three branches. To get results, they want turf battles and partisan squabbles to be put to the side.”14

The survey found that more Americans have confidence in their state courts (74 percent saying “some” or “a lot”) than in their executive or legislative branches, both of which scored about 10 points lower on average in measured confidence. Support for the courts’ core functions is tied to knowledge about the workings of government—in other words, those who score high on a knowledge index are significantly more likely than less informed citizens to express confidence in the courts.

The survey also reveals the years of fiery rhetoric bemoaning “activist” judges and judges “legislating” from the bench have done little to damage the confidence most Americans have in the power of the courts to perform their core functions. The survey found 68 percent of Americans believe the courts either have the appropriate amount of power or should be awarded greater power. On a separate measure—and perhaps the most surprising finding of the survey—71 percent of Americans explicitly support their state supreme court’s power to decide controversial issues, with only 23 percent believing the court’s ability to decide such cases should be limited.

Judicial Elections in Two States and in the Federal Courts

The constitutions of all 39 states electing their judges include provisions designed to make judicial elections different from those used to fill executive and legislative offices. In Pennsylvania and Wisconsin, these distinguishing provisions include election dates for judicial office that are on a different cycle than other statewide offices.15 Thus in 2009, voters in those states cast ballots for a supreme court justice.

On April 7, Wisconsin Chief Justice Shirley Abrahamson faced her fourth election for another 10-year term; long terms of office are another factor distinguishing judicial elections from those held in the other branches. The race was nonpartisan in that party labels do not appear next to candidates’ names, but in practice political parties loom large in the election landscape, selecting the candidates and then aggressively advocating on their behalf. The race was expected  to be a bruising battle that would repeat the heat and cash generated by the 2008 election in which incumbent Justice Louis Butler was defeated.16 The chief justice, who shared Butler’s judicial philosophy, was re-elected by a 59 to 41 percent margin; she far outspent her opponent. The campaign was tame in comparison to 2008. Third party groups largely refrained from advertising. The campaign was dominated by accusations related to the role of campaign contributions in judicial races, with both candidates questioning the extent to which their opponent would be beholden to their campaign donors when deciding cases.17

The unedifying aspects of the recent election scene in Wisconsin led six of the seven state supreme court justices to ask the legislature to establish a system of public financing for supreme court races.18 On Dec. 1, 2009, Gov. Jim Doyle signed the Impartial Justice Bill, making available up to $400,000 to a candidate meeting certain qualifying criteria. The new law replaces an earlier partial public funding program that failed to generate realistic amounts of money for candidates to mount a successful campaign.

On Nov. 3, an open seat on the Pennsylvania Supreme Court was filled in a partisan election. In another departure from non-judicial elections, the successful candidate in the future will face only a “retention” election in which voters are asked to say “yes” or “no” on whether the judge should be retained in office for another 10-year term of office; there are no opponents. To a journalist observer, the campaign was confusing and unsavory:

"If you only saw the ads, you might think (the) Supreme Court election pits a partisan pit bull dedicated to Republican causes against a trial lawyer’s lapdog whose insider status helped contribute to one of the worst courthouse scandals in state history … the voters have had to wade through a lot of mud to get to this (election) week.”19

The Pennsylvania Democratic candidate raised $2.4 million and garnered 47 percent of the vote; the Republican raised $734,000 and 53 percent of the vote. The total broke previous state records. As in Wisconsin, the candidates sparred over the sources of their campaign funding and the possibility that donors and interest group support would translate into influence over how the new justice would vote on cases.

Two recent U.S. Supreme Court decisions have the potential to alter the tenor and stakes in judicial elections. The first decision dealt specifically with whether a judge who benefited from a very large amount of financial support during an election campaign could then sit in a case in which their benefactor is a party. In Caperton v. Massey the court heard an appeal from a litigant who argued that a state supreme court justice should have recused himself—stepped aside because of a potential conflict of interest or bias—because he benefited from $3 million in support during his election campaign. The Supreme Court agreed, 5-4, recusal was necessary. Writing for the majority, Justice Anthony Kennedy used the decision to breathe new life into the Canons (a code of conduct) governing candidate conduct in judicial races: “the principal safeguard against judicial campaign abuses,”20 a move seen as greatly strengthening the force of the Canons, which had been weakened in a series of federal court decisions, including the 2002 U.S. Supreme Court decision in Republican Party of Minnesota v. White.

Another major U.S. Supreme Court decision announced in January 2010 is widely viewed as potentially consequential for the conduct of judicial elections. In Citizens United v. Federal Election Commission, a 5-4 majority held, in effect, that corporations and unions had the same First Amendment rights as individuals when it comes to supporting candidates for political office: “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” Writing for the minority, Justice John Paul Stevens in his dissent noted:

“The consequences of today’s holding will not be limited to the legislative or executive context … At a time when concerns about the conduct of judicial elections have reached    a fever pitch … the Court today unleashes the floodgates of corporate and union general    treasury spending in those races.”21

Stevens further noted that “Caperton motions” for recusal based on prior campaign support of the other side in a case may “catch some of the worst abuses,” further intensifying the interest in recusal reform.22

The effect of the Caperton decision on lawsuits challenging the Canons will likely be clarified in 2010; as of March, there are seven cases on appeal before the U.S. Circuit Courts of Appeals. It is possible that differences among the circuits will open the way for a petition to the U.S. Supreme Court.

Friend or Foe? Social Media and the Courts

If budgets and intergovernmental squabbles seem like inside baseball, one 2009 trend that exploded onto the courts scene reminded everyone that courts are the most public of institutions. Jurors tweeting from the jury box and judges Facebooking from the bench highlight how the courts—often considered either immune to, or slow to deal with, technological change—cannot resist this trend.23

The challenges social media present to both the perception and the reality of fair and impartial justice are numerous. For instance, should judges be online “friends” with lawyers who may come before them? In at least one state, the answer is now a resounding no. A December 2009 ethics advisory opinion from Florida’s Judicial Ethics Advisory Committee concluded that such an online relationship “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” The committee barred such online activity for Florida judges.24

It may not be realistic, advisable or even beneficial, however, for courts to attempt to clamp down on social media channels entirely.

At the 2009 Court Technology Conference in Denver, Colo., National Public Radio’s justice correspondent Ari Shapiro told the 1,500 judges, court staff and technologists in attendance:

“If it is in the public interest to be informed about and understand what is happening in the courts, then it should be in the courts' interest to facilitate that. Our goal, then ... yours and mine ... should be to make the work of the courts transparent and understandable to people who want to know about it… I’m not arguing that judges should do an online Q&A about their latest opinions. But I do want to encourage you to use technology to get good, accurate information to the public.”

Several other sessions at the conference sought to provide court staff with the tools to respond to the power of social media to disrupt traditional communications patterns.25 The conference was one of numerous gatherings in recent months aiming to assist court professionals grappling with the implications of social media.

During a speech at the Rehnquist Center at the University of Arizona, USA Today Supreme Court correspondent Joan Biskupic outlined how her job as a Supreme Court reporter has changed dramatically in recent years because of technological pressures. Whereas her job previously had been to report on a day’s decision for the following morning’s paper, Biskupic said she is now expected to have a story filed for the paper’s Web site within minutes of a decision being handed down; that she now has to compete for market share with well-respected online sources such as “SCOTUS Blog;” and that traditional analysis and reporting now takes a backseat to the demands for rapid filing for the paper’s online presence throughout the day.26

The Conference of Court Public Information Officers is a national leader in analyzing how social media impact the courts.27 This association of communications professionals who work in the courts commissioned a research study to dispassionately examine how courts can integrate social media into their operations.28 Findings are due to be released by August of 2010.

Conclusion

Looking ahead, some of the main items for the state court agenda in 2010 are clear. Traditional ways of doing business will be subjected to unprecedented scrutiny in search of more efficient alternatives. Individual courts and state court systems will draw lines protecting what is essential from cuts. The terms under which judges run for election may well be changed significantly by the federal courts and state supreme courts will invest considerable effort in revising their state’s rules concerning recusal. November 2010 will offer a test of whether corporate and union money will become still more determinative of judicial election outcomes. Social media will continue to challenge longstanding understandings of the role of judges in deciding what evidence in a case properly merits consideration by jurors. Judges and courts on Facebook and communicating via Twitter are real possibilities.

Notes

1. See Figure 2 on the Center for Budget and Policy Priorities Web page: http://www.cbpp.org/cms/index.cfm?fa=view&id=711

2. For a far more through treatment of how state courts are coping with the budget crisis, see the chapter by Richard Schauffler and Matthew Kleiman in this volume.

3. New York Times Editorial, “State Courts at the Tipping Point,” November 25, 2009.

5. Remarks of Chief Justice Christine Durham to American Bar Association midyear meeting in Orlando, Florida, February 8, 2010. On file with authors.

6. Ibid supra note 3.

7. Washington Economics Group Inc., “The Economic Impacts of Delays in Civil Trials in Florida’s State Courts Due to Under-Funding,”, February 9, 2009 (available at http://www.floridabar.org/fundingfloridacourts)

8. The statistics will be available at http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html.

9. Unpublished statistics provided by the Court Statistics Project of the National Center for State Courts.

10. The award recognizes states that report their court data based on the counting rules, case type definitions, and case status categories recommended by the National Center for State Courts. The 2009 award recipients were the courts of Florida, Hawaii, Kansas, New York State, and Utah.

11.  See, for instance, Charles Gardner Geyh, When Courts & Congress Collide (Ann Arbor: University of Michigan Press, 2006).

12. More details on the conference are reported by Tony Mauro of the National Law Journal here: http://legaltimes.typepad.com/blt/2009/05/summit-in-charlotte-focuses-on-state-courts-in-crisis.html.

13. The telephone survey of 1,200 Americans was conducted by Princeton Research Associates for the National Center for State Courts, with a margin of error of +/- 2.8 percent, 19 times out of 20. The poll was paid for by the NCSC, the Pew Center on the States, and the State Justice Institute. The entire survey can be found here:

14. More details from this poll are available on the NCSC Web site at http://www.ncsconline.org/D_Comm/PressRelease/2009/separate_branches-release.html

15. Robert O’Neil, “The Canons in the Courts: Recent First Amendment Rulings,” 35 Ind. L. Rev. 701 (2002).

16. The even-year election took place because as a new gubernatorial appointment to the bench, Justice Butler was required to run to retain his seat at the earliest statewide election.

17. See Steven Walters, “Koschnick Defends Himself for Contributions from Lawyers,” Milwaukee Journal Sentinel, March 8, 2009.

18. Ibid.

19. Charles Thompson, “Attack Ads Drown Out Issues in State Supreme Court Races.” Patriot-News, October 31, 2009.

20. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266 (2009).

21. CitizensUnited v. Federal Election Commission, No. 08-205 (2010) (Stevens, J., dissenting).

22. Both sides of the argument about whether large campaign contributions should require recusal are captured in this quotation from a lawyer acting on behalf of Wisconsin Manufacturers & Commerce, an interest group that spent $2.2 million in a state supreme court race in 2007: “Individuals and organizations spend money to help elect a judicial candidate precisely because they want that candidate to be a judge that is to preside over cases, including their own. There is nothing corrupt about that. That is democracy.” Matthew Mosk, “ABC News Exclusive: Study Shows Money Flooding into Campaigns for State Judgeships,” March 17, 2010.

23. For a review of the latest developments affecting the courts and social media, visit the NCSC Web site: http://devlegacy.ncsc.org/WC/CourTopics/ResourceGuide.asp?topic=SocMed.

24. See John Schwartz, “For Judges on Facebook, friendship has limits,” New York Times, December 10, 2009.

25. Ari Shapiro’s complete remarks, along with materials from several other social media and the courts related sessions at CTC, can be found here: http://www.ncsc.org/Web%20Document%20Library/CE_CTC2009.aspx. Shapiro not only talks the talk but walks the walk: a check of his Facebook page in March of 2010 shows that he regularly uses social media to communicate his reports and stories about the courts to his “friends”– of which he has more than 2,600.

26. Video from the Rehnquist Center conference, including the complete remarks of Biskupic, can be found at http://www.rehnquistcenter.org/MediaConference/agenda.cfm

28. Appropriately, this study was carried out at least partially online. The CCPIO created an online platform for discussion of the issues and for posting timely news developments related to social media and the courts. See http://ccpionewmedia.ning.com/.


About the Authors:

David B. Rottman is a staff member of the Research Division at the National Center for State Courts (NCSC).  His research concerns judicial selection, public opinion on the courts, court governance, and problem-solving courts. Recent publications include “Public Opinion on the Courts” (2008) and “Procedural Fairness, Criminal Justice Policy, and the Courts” (2010). He holds a Ph.D. in Sociology and is the author of books on community justice, social inequality, and modern Ireland.  

Jesse Rutledge is vice president for External Affairs at the National Center for State Courts (NCSC) where he oversees the organization’s communications, marketing, and private development efforts.   Prior to joining NCSC, he served as deputy director at the Justice at Stake Campaign in Washington, D.C.  His commentary about the politics of judicial selection has appeared in state and national media, including the Boston Globe, the Chicago Tribune, and on National Public Radio and BBC Radio.   He holds a B.A. and M.A. in political science.