Court funding poses 'scary' scenario

By Nancy McCarthy
Staff Writer

The reliance of California's courts on state funding for its operations must be dramatically reduced if the courts are to continue to serve as an independent third branch of government, a state senator told the board of governors last month.

Dunn

In a harsh lesson on political reality, Sen. Joseph Dunn, D-Garden Grove, told the board the traditional balance of powers is threatened when court funding is in the hands of a relatively inexperienced and highly partisan legislature that sees the judicial branch as one without a constituency that votes.

"All of the problems we face with the funding of courts," Dunn said, ". . . the entity that will resolve those in California is the state legislature. You should be scared, very scared."

The board received a status report on how California's huge budget deficit is affecting the courts, and the news was essentially unchanged from earlier projections. The revised budget continues to contain reductions of $116 million for the trial courts and $17.7 million for the appellate courts and Judicial Council, said William Vickrey, administrative director of the Judicial Council.

Although the May revised budget contains about $17.5 million in proposed additional funding, Vickrey said if policy initiatives affecting security and court reporting do not succeed in the legislature, $58 million will be lost. And if the governor's fee proposals go nowhere, another $71 million will be added to the shortfall.

Vickrey said the discretionary portion of the courts' budget faces a potential cutback of $250 million, or 25 percent of its 2003-04 allocation, an even worse projection than was given earlier this year.

"The impact on the trial courts will be very, very severe," he said. However, both Vickrey and Dunn are trying to limit the reductions to $85 million with a compromise under consideration at press time in a Senate Budget Committee subgroup on government entities chaired by Dunn.

Both men warned that just as some experts have said a fundamental overhaul of California's tax system is needed to avoid the roller coaster nature of the state's budget, the way courts are funded poses long-term dangers to the judicial branch's independence and stability.

The governor decides what areas to fund and at what level, decisions that shape the debate in the legislature. As the courts continue to wean themselves on to the state budget, their future increasingly lies in the hands of the legislature. Dunn suggested that's an unhealthy relationship that lawyers should want to change.

Three developments have contributed to a legislature that he said is hostile to the legal profession.

First, term limits mean lawmakers are younger than ever; the average age in the Assembly is mid-30s and in the Senate, just under 50. "The average 32-year-old doesn't have the experience needed to make public policy decisions," the 44-year-old Dunn said.

Second, the legislature has become increasingly partisan, with a "win-lose" outlook that makes compromise difficult.

Finally, there are fewer and fewer lawyers who serve as lawmakers and those with practical experience probably total less than five. "That's unfortunate," said Dunn, himself a trial lawyer.

"That's our jury," he said. "It's rather hostile to our interests, to be frank. . . . Weaning the court system on to the state budget means decisions will be made by that jury."

Determining funding priorities increasingly comes down to pitting the courts against an inner city health clinic, or an elementary school or a police department, he said. "That's the view most politicians take. That's the game we will lose."

Further, the courts do not have a political constituency and therefore are an easy mark when economic times are tough. Dunn said lawyers, who as a group are "not politically sophisticated," must become politically motivated and educate themselves about how courts are funded. Their message to the legislature should be that more than a political constituency is at stake, Dunn said.

"It's the preservation of the democratic principle of three branches of government. What's really at play is a threat to that. It's a huge challenge to all of us."