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Liberty And Justice For Some: State Budget Cuts Imperil Americans' Access To Courts


First Posted: 08/02/11 09:39 AM ET Updated: 10/02/11 06:12 AM ET

WASHINGTON -- Brian and Patty Baxter's daughter wasn't even two years old yet when they moved into their place in New Hampshire in 1996. The landlord had recently sanded and repainted the apartment, making it seem fresh and new.

That good deed would punish the Baxers. The old paint was contaminated with lead and by sanding it off, the landlord had turned the entire place into a waste pit for lead paint dust -- an especially toxic environment for a baby.

The Baxters filed suit in 2001, when the effects of the lead poisoning became more apparent in their daughter. Ten years later, their case still hasn't been heard.

"My clients are besides themselves," said attorney Chris Seufert of Seufert Law Offices, who is representing the Baxters. "Their child is ready to graduate from high school. She was poisoned when she was 18 months, and now she's going to be a high school graduate! I mean, come on!"

The case has gone on so long that his partner, who was originally the lead attorney on the matter, has retired.

"This is the greatest thing since sliced bread for the insurance industry, because a plaintiff who's an injured victim can't get their day in court," Seufert added.

Seufert doesn't blame any one person within the judicial system for the delay. And this sort of lag time is not unique to the Baxters or the state of New Hampshire. But it is becoming increasingly common, a trend that worries everyone from judges to legal aid workers to businesses who want to bring their own claims to court. An analyst with the National Center for State Courts said nobody is cataloguing the precise overall decline in funding for state courts but that the cuts have been deep and sustained.

"In the past few years, state court budgets nationally have been declining," said Greg Hurley, senior knowledge management analyst at the National Center for State Courts. He pointed out that unlike many government agencies that can cut inventory or or pare back purchases, the courts facing cuts have to quickly trim jobs, since personnel makes up such a large portion of their budgets.

The deep budget cuts to judicial funding, coupled with an uptick in filings, are causing significant delays at the state level, similar to what the Baxters are experiencing. It's true that state lawmakers are dealing with tough economic circumstances, but many court advocates bristle that the third branch of government is being treated as nothing more than a state agency begging for scraps.

Courts are trying to cut costs even in the smallest ways. In Georgia, the state Supreme Court's chief justice had to ask research database company LexisNexis for pens and pencils to give to her law clerks. Elsewhere, plaintiffs and defendants have to bring their own paper.

Compounding the problem is the fact that these cuts are coming as the need for access to the courts is increasing, with Americans looking for solutions to the foreclosure crisis and employment disputes arising from the economic recession.

Stephen Zack is president of the American Bar Association (ABA) and has established a Task Force on Preservation of the Justice System, which has been conducting hearings and gathering stories for a report about about the funding crisis facing the courts.

"No one can deny the economic issues have impacted [court funding]," said Zack. "But there are people who really think the courts get in the way," -- people, for instance, who may be facing lawsuits for lead poisoning -- "and they actually don't have any desire to fully and actively fund them, because it's easier to do what you want that way. ... When it comes to prioritizing -- and that's what legislatures do -- they've got to see the judiciary as fundamental, not a luxury."

Twenty-nine state court systems are facing budget cuts this year, with many already in effect, according to the National Center for State Courts. At least five states (Georgia, Maine, Nevada, Oklahoma and Oregon) are facing reductions of 10 percent or more.

To cope with the cuts, courts are having to freeze or reduce salaries, lay off staff, reduce operating hours, increase the fines and fees paid by the public and leave positions for judges and support staff unfilled.

Several radical strategies are being considered to fully fund the judiciary. Some people are looking at establishing state citizens' groups that determine the judicial budget, subject to a veto by the governor and legislature. Others are considering a constitutional attack, arguing that the failure to adequately fund the judiciary is a violation of the U.S. Constitution under the separation of powers clause.

The attack on courts at the state level is coinciding with one of the worst federal judicial crises the country has seen. When Democrats took control of Congress in 2007, they had little interest in confirming President Bush's arch-conservative judicial nominations, knowing they'd likely hold the White House if they simply waited it out. But President Obama has been slow to nominate his own judges and the ones he does send up are often denied even a vote.

Today, there are 92 judicial vacancies on the federal level. Many highly qualified nominees, such as Goodwin Liu, have been blocked because of ideological and partisan fights in the Senate; others have gotten snagged in unrelated squabbles.

The problem is so severe that it prompted Supreme Court Chief Justice John Roberts, the conservative legal scholar nominated by President George W. Bush, to call on the Senate to approve more of President Obama's nominees.

"There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem," said Roberts in January.

Former Supreme Court Justice Sandra Day O'Connor has said the courtroom is "the one safe place where a person can have a fair and impartial hearing to resolve a legal issue and we have to keep that."

That safe place is disappearing.

"What's happening now is that the United States justice system as we all remember it is being dismantled and butchered down," said former New Hampshire Supreme Court chief justice John Broderick. "At some point, I guarantee you, you'll wake up and say, 'What happened?'"

NEW HAMPSHIRE: TRYING TO PROTECT THE 'LEAST POWERFUL'

New Hampshire's court budget is approximately $70 million per year. While that may sound like a significant amount for a small state, to put it into perspective, the state prison system gets about $104 million a year.

Broderick served on the New Hampshire Supreme Court from 1995 until November 2010, and he was chief justice for the last seven years of his term. He is now the dean and president of the University of New Hampshire School of Law.

In an interview with The Huffington Post, Broderick said that every year he was chief justice, the budget was cut. When he arrived, there were 620 people behind the counters at their 43 court sites. That number has now fallen to 470 because of all the cuts.

[Keep reading for a map showing the cost-cutting measures courts have taken.]

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