Hartley: Moving Past Crisis - . - Promoting Parity

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Moving Past Crisis . . . Promoting Parity: How Effective Intergovernmental Relations Can Help Build a More CoEqual Judicial Branch
DR. ROGER E. HARTLEY*
ABSTRACT
The crisis impacting the American judiciary is evident in budget cuts and, what some call, court-curbing legislation, which attempts to rein in court power. Courts, however, face an especially difficult political conundrum. Work by James Douglas and Roger Hartley in the 2000s noted that court needs do not command the same political salience or attention by political officials as do agencies in the justice system like public safety, prosecution, and correction.1 In addition, norms of judicial impartiality and the protection of judicial independence often drive what some might consider a passive approach to political engagement by judges and court officials. However, the very nature of the legislative and executive processes necessitate (and reward) activeand sometimes aggressive political participation to secure needed resources, to build support for
* Professor and Director, Masters of Public Affairs Program, Western Carolina University. I would like to thank and credit Michele Stone, a former undergraduate student at the University of Arizona, who worked with me to move this project forward. Some of the work in this project is founded on exploratory work that is reported in her unpublished Honors Thesis, which I directed in 2005-2006. Her work is cited throughout this paper and her ideas added greatly to this project. I would also like to thank my graduate assistant Rebecca Duley at Western Carolina University for her research assistance in writing this paper. Donald Songer, Justin Wedeking, and my colleagues in the political science department of Western Carolina University provided helpful comments. 1 James W. Douglas & Roger E. Hartley, State Court Strategies and Politics During the Appropriations Process, 21 PUB. BUDGETING & FIN. 35, 35-37 (2001) [hereinafter Douglas & Hartley, State Court Strategies and Politics]; Roger E. Hartley, State Budget Politics and Judicial Independence: An Emerging Crisis for the Courts and a Time to Emerge as a Political Branch, 18 CT. MANAGER 16, 16-23 (2003) [hereinafter Hartley, State Budget Politics and Judicial Independence].
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legislation that might favorably impact courts, and sometimes to fight off legislation that might harm the power of courts and the work of judges. This Article raises important questions about how courts enter the political process and how they might do so more effectively. While aggressive political action by court officials might draw a political backlash from the other branches and even demonstrate political bias, well-planned, active, and effective intergovernmental relations by courts is a necessary condition for moving past the present crisis in the judiciary.
INTRODUCTION
he crisis impacting the judiciary is evident in budget cuts and, what some have termed, court-curbing legislation.2 The speakers at the 2012 New England Law Review Symposium titled Crisis in the Judiciary noted conflicts that American state courts face in their relationships with the other branches of state government.3 More particularly, contributors like Daniel J. Hall and Lee Suskin note the adverse policy impacts that budget cuts and poorly-designed legislation can bring to state courts.4 The themeCrisis in the Judiciarystrongly implies that courts face unusual problems and conflicts in their interactions at the federal, state, and local levels with executive and legislative bodies. Courts face difficulties in their interactions with the other branches, which may be a product of the differing organizational structures under which todays state courts operate. For example, the administrative needs, strategies, and priorities of trial court administrators and presiding judges may differ from the interests of court leaders at state administrative offices of the courts (AOCs).5 Cuts in budgets, policy changes by other branches that indirectly
See Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L. REV. 191, 248 (2012) (stating that court critics have implemented court-curbing measures, including budget cuts).
3 See New England Law Review, Crisis in the JudiciaryNew England Law Reviews Fall 2012 Symposium, ON REMAND, http://newenglrev.com/symposia/vol_47_fall_symposium/ (last visited Apr. 8, 2013) (explaining that the New England Law Review provided a forum in which panelists could discuss the financial problems facing the judiciary and offer creative solutions to those problems). 4 Lee Suskin & Daniel J. Hall, Responding to the CrisisReengineering Court Governance and Structure, 47 NEW ENG. L. REV. (2013). 5 See Trial Court Administration Job Descriptions, NCSC, http://www.ncsc.org/Topics/Human-Resources/Job-Descriptions/Administrators-TrialCourts/Trial-Court-Administrator-Large-Jurisdiction.aspx (last visited Apr. 8, 2011) (describing the varying duties of different court administrators).
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impact courts, and even outright attacks on court power are conflicts that come from a lack of attention to building strong external relationships. These conflicts also stem from stakeholders that often do not understand the proper role of courts, the operational needs of courts, and the impact of policy decisions and cuts on the overall efficiency of our justice system. Solutions to the many crises facing the judiciary today raise the question of how court leaders can head off, manage, and resolve conflicts with external stakeholders like other government agencies, interest groups, court clients, and even other judicial organizations at different levels of government. In this Article, I argue that courts face unique intergovernmental relations problems that other agencies do not face. These constraints necessitate more attention to, and involvement in, building institutional systems of effective external relations, intergovernmental relations, and even lobbying. The judiciary faces an especially difficult conundrum. As an independent branch, courts are expected to remain above politics, yet they must enter the political process to obtain their resources, to fight for and against policies that might impact them, and to even repel attacks on their power. This conundrum coupled with the crisis impacting court resources and other needs raise the question of how courts perform the tasks of intergovernmental relations. How does the judiciary interact with or lobby other branches of government? Existing research suggests that courts traditionally behave conservatively in their lobbying behavior and use cautionby trying to not appear aggressive or outwardly politicalwhen lobbying for court needs.6 Some scholars suggest that courts should behave conservatively as a strategy for maintaining norms of judicial independence and court legitimacy.7 However, case study research hints at more sophisticated strategies used by courts when widespread reforms are undertaken.8 Court officials are currently planning for improved political
6 See William Glaberson, Big Plan for Small Courts: Seeking Money to Fix Them, N.Y. TIMES, Jan. 30, 2007, at B3 (reporting that New York courts asked for a conservative figure from the legislature to improve the states town and village courts); Adam Liptak, Federal Judges Find Courts Short of Money to Pay Jurors, N.Y. TIMES, Aug. 1, 2003, at A16 (stating that federal courts hoped that Congress would tap into an emergency fund to help pay jurors after previously passing over the courts fiscal problems).
See Stephen B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch Relations, 95 GEO. L.J. 909, 914-15 (2007); Judith Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 S. CAL. L. REV. 269, 287-90 (2000). 8 See Jeremy Buchman, Judicial Lobbying and the Politics of Judicial Structure: An Examination of the Judiciary Act of 1925, 24 JUST. SYS. J. 1, 11-13 (2003); Justin Crowe, The Forging of the Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft, 69 J. POL. 73, 77-80 (2007); John W. Winkle III, Interbranch Politics: The Administrative Office of U.S. Courts as Liaison, 24 JUST. SYS. J. 43, 50 (2003) [hereinafter Winkle, Administrative Office of U.S. Courts as Liaison].
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mobilization and more effective interbranch relations at the federal level and in the states.9 This Article draws on the findings of existing research, as well as some initial evidence from the states of New York and Washington, to introduce intergovernmental relations strategies that may be effective for courts to use to manage the crisis. However, more research is needed. Important research questions include: What resources are devoted to intergovernmental relations? What do courts lobby for and against? What tactics and strategies are used? And, What current and past efforts have improved interbranch relations? I propose many state judiciaries commonly use some traditional intergovernmental-relations activities and that these are documented in past research (e.g., use of judges and court liaisons). There is still, however, a lot to learn. Some court systems are employing more sophisticated strategies to lobby, such as coalition building and forging a process for legislative affairs. This behavior may be more widespread than originally assumed.10 With more research and attention to intergovernmental relations, court leaders can create and disseminate best practices that might help solve the puzzle of how to effectively and vigorously argue for court needs without tarnishing norms of impartiality and harming the independence of courts. I. Judicial Independence, Intergovernmental Relations, and the Courts
When discussed by court leaders and academics, the crisis in the judiciary is often defined as the many adverse impacts of budget cuts such as cuts to judicial salaries, staff layoffs, increasing caseloads and times to disposition, fewer trials, and cuts to popular judicial initiatives like specialized courts.11 Crisis can refer to well-intended legislative and gubernatorial policy agendas with negative, unintended consequences on courts, such as efforts to raise revenue through new court fees for important justice initiatives that may harm access to courts for the poor.12 Of course, crisis is also popularly used to describe the employment of
9 See Adam Liptak, Judges Mix With Politics, N.Y. TIMES, Feb. 22, 2003, at B1 (stating that courts are moving away from a neutral role and embracing politics).
See Terry Carter, State Justices, Legislators on Panel Shared Success Stories on Tackling Judiciary Budget Concerns, ABAJOURNAL.COM (Nov. 15, 2012, 3:02 PM), http://www.abajournal.com/mobile/article/court_funding/ (describing the success of state courts that have persistently lobbied their legislators).
11 In Focus: Judicial Branch Budget Crisis, CAL. JUDICIAL BRANCH, http://www.courts.ca.gov/partners/1494.htm (reporting that California courts have experienced layoffs, cutting of programs, and longer disposition time due to the judicial crisis) (last visited Apr. 8, 2013). 12
10
See Carter, supra note 10.
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force by other branches to threaten or actually rein in the power of judges.13 Concerns about violations of the norms of judicial independencethrough attacks by other branches on both judges and the institutionat the federal and state level have generated much discussion among judges, court leaders, the bar, and academics.14 Because of legislative and executive branch action that has been deemed, at times, hostile to the power and role of judges and courts,15 there has been a renewed focus on the need for court officials to improve both intergovernmental relations and how courts lobby the other branches.16 Lobbying, in popular culture, has become somewhat of a dirty word that invokes high-priced wordsmiths advocating for interest-group needs with as much political ammunition and capital as one can muster.17 The fact that all organizations have needs that must be addressed in the political process makes lobbying important. The reality is that lobbying is a very real and important activity to all government agencies, including courts.18 Because of the negative connotations of the term, we commonly
13 See Elizabeth Dinan, More Cuts Coming for N.H. Courts, SEACOASTONLINE.COM (Dec. 21, 2010, 5:10 PM), http://www.seacoastonline.com/articles/20101221-NEWS-101229950 (reporting that attorneys believe that the legislatures refusal to fund the courts is disgraceful and has jeopardized cases). 14 See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 330 (1997) (noting that governors have stated that they believe they should be able to override bad court decisions and have urged the federal government to do the same). 15 Id. at 309-10 (urging more legal professionals and students to defend judicial independence against politicians attacks). For example, a South Dakota effort known as J.A.I.L. 4 Judges that would have allowed citizens to bring lawsuits against judges for their rulings. At the federal and state level, threats have been made to lower court budgets in the wake of unpopular decisions. Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 37-38. Also at the federal level, Chief Justice Rehnquist commented in his 2003 and 2004 Year-End Reports on the Federal Judiciary about criticism and threats of judges based on acts of the judiciary. Chief Justice Rehnquist called attention to the Feeney Amendment to the PROTECT Act that established the monitoring of judges who downward depart from sentencing guidelines, threats to impeach judges for unpopular rulings, and bills introduced to alter the jurisdiction of courts for political reasons, and the Feeney Amendment to the PROTECT Act that established the monitoring of judges who downwardly depart from sentencing guidelines. Chief Justice Rehnquist also noted the need for improved communication and consultation between Congress and the judiciary. 16 See CHIEF JUSTICE WILLIAM H. REINQUIST, 2003 YEAR-END REPORT ON THE FEDERAL JUDICIARY (2004), available at http://www.supremecourt.gov/publicinfo/year-end/2003yearendreport.aspx [hereinafter 2003 YEAR-END REPORT].
Anita S. Krishnakumar, Towards a Madisonian, Interest-Group-Based, Approach to Lobbying Regulation, 58 ALA. L. REV. 513, 514 (2007). 18 See John W. Winkle, Judges Before Congress: Reform Politics and Individual Freedom, 22 POLITY 443, 453 (1990) [hereinafter Winkle, Judges Before Congress].
17
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see lobbying called other less objectionable terms like intergovernmental relations or intergovernmental affairs. The fact is that courts do lobby, but relatively little is known about how it is done because of a lack of research and, arguably, because few talk about it much. Because of norms of impartiality and legal constraints faced by judges in the political arena, the subject of lobbying may rarely reach public discussion or debate. The subject of how courts lobby is of critical importance to the day-today functions of the branch and runs much deeper than the need to repel attacks on the judiciary. Past research clearly demonstrates that judges and their intermediaries routinely work through non-judicial means in the political arena to influence policymakers.19 Court officials regularly work in the political arena with other governmental organizations to lobby for resources (e.g., budget requests and new facilities), to comment on legislation that might have beneficial or harmful effects on the branch, and to promote legal and administrative reforms that might improve the judicial branch (e.g., unification of courts).20 However, judicial systems in the United States face a conundrum of sorts that some argue has hindered
19 See, e.g., Ellen Baar & Carl Baar, Judges as Middlemen?, 2 JUST. SYS. J. 210, 210 (1977) (employing a network-analysis system to explore the relationships between the states judges and legislatures); Crowe, supra note 8, at 73-74; James W. Douglas & Roger E. Hartley, State Court Budgeting and Judicial Independence: Clues from Oklahoma and Virginia, 33 ADMIN. & SOCY 54, 68-72 (2001) [hereinafter Douglas & Hartley, Clues from Oklahoma and Virginia]; Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; Hartley, State Budget Politics and Judicial Independence, supra note 1, at 54-78; Resnick, supra note 7, at 276-78 (using Chief Justice Rehnquists involvement in the Violence Against Women Act as indicative of the federal judiciarys political development in the twentieth century); Russell R. Wheeler & Robert A. Katzmann, A Primer on Interbranch Relations, 95 GEO. L.J. 1155, 1160-61 (2007) (analyzing the five principles that define legislative influence on judicial decision making); Winkle, Administrative Office of U.S. Courts as Liaison, supra note 8, at 43-44 (detailing a systematic study on the contemporary role of the Administrative Offices role in judicial lobbying); Winkle, Judges Before Congress, supra note 18, at 443-45, 453; John W. Winkle III, Judges as Lobbyists: Habeas Corpus Reform in the 1940s, 68 JUDICATURE 263, 263-64 (1985) [hereinafter Winkle, Judges as Lobbyists] (noting continued practice of judicial lobbying of the legislature in the absence of clear, constitutional authority); John W. Winkle III & Robert H. Oswald, The Role of Trial Judges in State Court Reform: The Case of Mississippi, 91 JUDICATURE 288, 288-89 (2008) [hereinafter Winkle & Oswald, The Role of Trial Judges] (recognizing the importance of gaining the legal communitys support through lobbying in judicial reform). 20 2003 YEAR-END REPORT, supra note 16 (criticizing the legislatures failure to consult the judiciary before enacting the PROTECT Act); Crowe, supra note 8, at 73-74 (examining how the political activity of Chief Justice William Howard Taft resulted in significant judicial reform that changed the character of the Supreme Court); James W. Douglas & Roger E. Hartley, Making the Case for Court Funding: The Important Role of Lobbying, 43 JUDGES J. 35, 36 (2004) [hereinafter Douglas & Hartley, Making the Case for Court Funding].
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their efforts in the political process.21 As an independent branch, judges are expected to remain above politics and behave that way, yet they must also enter the political process to secure and protect their interests.22 There are differences of opinion among scholars about how courts should behave given the role of impartiality and the need for judicial independence.23 On one hand, some worry that efforts to behave more politically and aggressively could lead them to be perceived as just another interest group and thereby invite more demand for accountability from courts.24 Interestingly, the demonstration of how courts are accountable to the other branches and the public has become the subject of much discussion in court policy circles.25 Demonstrating that courts are accountable may have even recently become a strategy of sorts to convince external stakeholders that courts are responsible stewards of resources and power and deserving of more resources and more independence.26 However, others suggest that courts may be perceived as essentially just another interest group when they enter the political process. Courts must enter the political system to get what they need and, as a result, those who work with them expect similar political behavior as the others they encounter. One study of intergovernmental lobbying (that focused on local governments before legislatures, not courts) notes that there is evidence that intergovernmental groups are viewed similarly to other interest groups in the policymaking arena.27 For instance, Ciglers 1994 study of directors of county associations found courts were perceived much like other interest groups because they behave much like other interests (e.g., lobbying aggressively and forming coalitions with other groups).28 Other
21 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35-37; Hartley, State Budget Politics and Judicial Independence, supra note 1, at 16-23. 22 23
See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35.
Compare id. (arguing for increased lobbying and participation in the political process on the part of the judiciary), with Resnick, supra note 19, at 289-90 (cautioning the judiciary against entering the political realm because of the risk that it will lose its impartial and independent character).
24 25
See Burbank, supra note 7, at 921-22; Resnick, supra note 19, at 289-90.
News Release, Lorri Montgomery, Dir. of Commcns, Natl Ctr. for State Courts, Surviving the Economic Tsunami: How Fresh Ideas and New Solutions Are Replacing Business as Usual (Nov. 15, 2012), available at http://www.ncsc.org/Newsroom/NewsReleases/2012/Surviving-the-Economic-Tsunami.aspx (highlighting a recent conference where judicial accountability was discussed).
26 27
See id.
Patricia K. Freeman & Anthony J. Nownes, Intergovernmental Lobbying in the States, 27 SOUTHEASTERN POL. REV. 619, 620 (1999).
28
Beverly A. Cigler, The County-State Connection: A National Study of Associations of
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research on the state budget process suggests that courts are expected to behave politically like other agentslegislators and executive branch officialsencountered regularly in the process.29 If courts dont behave this way, will they shortchange themselves in the political process? Might they be viewed as an interest group with less capability, that has not mastered the process, and that has little to exchange with legislators (e.g., political salience, pork for districts, etc.)? The issue of intergovernmental relations is clearly salient, has invited much careful thought, and needs more attention to resolve some of these important debates about how courts should do intergovernmental-relations work. Either way, however, intergovernmental relations is of critical importance to the day-to-day functions of the judiciary. Intergovernmental relations are indeed a salient topic to those who work inside, and with, courts. Improving communications is repeatedly mentioned as a need of policy focus in the Chief Justices Year-End Report on the Federal Judiciary that is presented to Congress.30 In addition, Justice Sandra Day OConnor has spent much of her retirement writing and speaking about the importance of judicial independence and the need for improved relations between the courts and the other branches of government.31 There is some evidence that these calls have been heard. Improvement of intergovernmental relations has been the subject of judicial conferences, a recent law school symposium, and of judicial and court association commissions.32 For example, improving
Counties, 54 PUB. ADMIN. REV. 3, 5 (1994).

29 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; see also Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35-37. 30 Chief Justice Roberts 2007 Year-End Report on the Federal Judiciary specifically addressed improving intergovernmental relations in general and specific subjects, such as pay. 2007 YEAR-END REPORT ON THE FEDERAL JUDICIARY 4-6 (2008), available at http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx. Chief Justice William Rehnquists 2003 and 2004 reports focused specific attention on recent policy actions affecting the judicial branch and congressional bypassing of norms to consult with the judiciary on items that might impact the courts. 2003 YEAR-END REPORT, supra note 16; 2004 YEAR-END REPORT ON THE FEDERAL JUDICIARY (2005), available at http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx. Chief Justice Rehnquist called specifically for improved consultation between Congress and the Judiciary on the impact of bills. 2003 YEAR-END REPORT, supra note 16. 31 See, e.g., Sandra Day OConnor, Fair and Independent Courts: Remarks by Justice O Connor, 95 GEO. L.J. 897, 897-98 (2007); Sandra Day OConnor, How to Save Our Courts, PARADE (Feb. 27, 2008), available at http://lists.ajs.org/pipermail/ajs_board/2008-February/000722.html; Sandra Day OConnor Cites the State Budget Crises as Most Pressing Problem Confronting State Courts, ABANOW.ORG (May 8, 2009), http://abanow.org/2009/05/sandra-day-oconnor-cites-statebudget-crises-as-most-pressing-problem-confronting-state-courts/. 32
See, e.g., American Bar Association, ABA Presidential SummitJustice is the Business of
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intergovernmental relations was the primary subject of a national policy summit, Justice is the Business of Government: The Critical Role of Fair and Impartial State Courts, sponsored by the American Bar Associations Presidential Commission on Fair and Impartial State Courts and the National Center for State Courts.33 Judicial lobbying has drawn the attention of court officials and the bar . . . .34 However, policy efforts to improve judicial intergovernmental relations could be better informed by systematic studies of how courts lobby the other branches of government: Who lobbies for courts? What do they lobby for? And what resources do courts have to advance their interests? All good research is advanced by what we know from past research. [T]here has been relatively little academic research on how courts perform the task of intergovernmental relations.35 From existing research, we learn that courts face unusual problems and constraints as they lobby other government organizations, and there is some additional although limitedresearch on judicial lobbying at the federal and state levels.36 II. Limits and Constraints on Court Lobbying
It is no secret that governments lobby other governments, even though this is not what the people typically think of as they consider the behavior of lobbying.37 Common conceptions of lobbying are of well-paid
Government: The Critical Role of Fair and Impartial Courts: Innovative SolutionsBriefing Paper, ABANOW.ORG (May 10, 2009), http://www.abanow.org/2009/05/aba-presidential-summitjustice-is-the-business-of-government-the-critical-role-of-fair-and-impartial-state-courts-6 (follow link to briefing paper under For more information); Betsy M. Adeboyejo & Alexandra Buller, Cuts to State Courts are Focus of Symposium, ABANOW.ORG (Sept. 23, 2011), http://www.abanow.org/2011/09/cuts-to-state-court-focus-of-symposium/.
33 Edward W. Madeira, Justice is the Business of Government: State and Local Government Branch Roles in Delivering Justice, HUMAN RIGHTS, AMERICAN BAR, . The Summit was held in Charlotte, North Carolina from May 7 to 9, 2009. Sponsors invited court, legislative, and executive branch representatives from each state to attend working sessions designed to identify challenges facing state courts, and to jointly propose agendas for efforts on such topics as improving budgets, public attitudes about the courts, and intergovernmental relations. Id. 34 Roger E. Hartley, Intergovernmental Relations and the Courts: How Does an Independent Branch Play Politics? (2009) (unpublished manuscript), available at http://ssrn.com/abstract=1428537 [hereinafter Hartley, Intergovernmental Relations and the Courts].
Id. See Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciarys Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165, 1197-98, 1245 (1996); Hartley, Intergovernmental Relations and the Courts, supra note 35.
36 37
35
Hartley, Intergovernmental Relations and the Courts, supra note 35.
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lobbyists hired by interest groups that work the halls of legislatures to argue for and against legislation. As a result, most scholarship on lobbying focuses on how interest groups enter the political process to impact legislation, the formulation of regulations, and the implementation of policy.38 By far, most scholarship on lobbying related to the courts is directed at how interest groups seek to impact litigation,39 court decisions,40 and decisions by Congress on judicial nominations.41 Intergovernmental lobbying has flown under the radar to some degree, even in [political science] literature on interest groups.42 Much of the work on intergovernmental relations can be categorized as efforts to study the problems of federalism and how branches of governments share powers and interact to create policy opportunities over time.43 The manner in which intergovernmental lobbying occurs is shown by specific studies.44 For example, [s]tudies that focus on intergovernmental lobbying in Washington, D.C. include Haiders (1974) classic work as well as more recent work by Cammisa (1995).45 Some focus on how states lobby the federal government46 or how local government organizations work to influence states.47 Unlike with other branches, efforts undertaken by the judiciary to
See, e.g., Preface to INTEREST GROUP POLITICS, at v (Allan J. Cigler & Burdett A. Loomis eds., 1983); JEFFREY M. BERRY, THE INTEREST GROUP SOCIETY 6-8 (1984). See, e.g., MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUALITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION 48 (1994); Stephen L. Wasby, How Planned is Planned Litigation?, 9 AM. B. FOUND. RES. J. 83, 106-07 (1984).
40 See generally Kevin T. McGuire & Gregory A. Caldeira, Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court, 87 AM. POL. SCI. REV. 717, 717-19, 724 (1993). 41 See, e.g., NANCY SCHERER, SCORING POINTS: POLITICIANS, POLITICAL ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS 3-4 (2005). 42 43 39
38
Hartley, Intergovernmental Relations in the Courts, supra note 34.
See, e.g., Preface to INTERGOVERNMENTAL RELATIONS IN THE 1980S, at v (Richard H. Leach ed. 1983).
44 45 46
Hartley, Intergovernmental Relations in the Courts, supra note 34. Id.
Troy Smith, Intergovernmental Lobbying in the Twenty-First Century: Why Process Federalism and Opportunistic Actors Create a Less Structured and Balanced Federal System, in INTERGOVERNMENTAL MANAGEMENT FOR THE TWENTY-FIRST CENTURY 310, 321-22 (Timothy J. Conlen & Paul L. Posner eds. 2008); Troy Smith, When States Lobby 5-11 (1998) (unpublished Ph.D. dissertation, University of Albany) (on file with author). See, e.g., Freeman & Nownes, supra note 27, at 621; CLIVE S. THOMAS & RONALD J. HREBENAR, GOVERNMENT AS AN INTEREST AND LOBBYING FORCE IN THE AMERICAN STATES 1 (1992).
47
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lobby are constrained.48 Scholarship traditionally notes that the power of courts and protections against intrusion on court power are rather minimal in comparison to those of the other branches.49 Burbank states it well when he says, formal protections of federal judicial independence pale in comparison with formal powers that might be deployed to control the federal courts and make them accountable.50 Instead, informal norms and customs of judicial independence have evolved and have been described as fostering equilibrium among federal courts and the other branches.51 Geyhs work notes that while there are many weapons that the other branches can use against courts (e.g., budget power, impeachment, court packing), these are rarely used because norms and customs protect the independence of courts.52 That said, in an interview following the publication of his book, Geyh cautions that this equilibrium is fragile and in recent years even more so given the recent political environment of ongoing campaigns against judicial activism and attacks on judges and their decisions by Congress, pundits, and evangelical conservatives.53 As noted earlier, other scholars argue that courts should be very careful in how they communicate with the other branches given this delicate balance.54 Just how open or conservative court systems should be when lobbying the other branches remains up for debate and needs more support from scholarship. Still, the limitations, pressures, and issues courts face when deciding how to proceed are very realand a rather conservative approach to behaving politically seems to exist.55 First, court officials may fear behaving in openly political ways because it might tarnish the image of the bench as apolitical, fair, and impartial.56 Norms (and even Judicial Canons) suggest that decisions should be made without external pressures or the appearance thereof.57 This isolates the judiciary and some have
48 49 50 51
Hartley, Intergovernmental Relations in the Courts, supra note 34. Id. (citing Burbank, supra note 7, at 913). Burbank, supra note 7, at 913.
See CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICAS JUDICIAL SYSTEM 52, 111, 253-54 (2006).
52 53
See id. at 51.
Congressional Control Over the Courts? History Says No, But it Could Happen, IND. UNIVERSITY BLOOMINGTON (Apr. 6, 2006), http://info.law.indiana.edu/news/page/normal/3254.html.
54 55
See Burbank, supra note 7, at 925-27; Resnik, supra note 7, at 292.
See Mark W. Cannon, Innovation in the Administration of Justice, 1969-1981: An Overview, 10 POL. STUD. J. 668, 670-73 (1982).
56 57
See GEYH, supra note 52, at 234-35.
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suggested that this hesitancy to lobby conceals real judicial administration problems from the public and the other branches.58 The suggestion that court officials traditionally behave conservatively in their political capacity is supported by some research.59 For instance, Douglas and Hartleys work on court budgeting found that court officials rarely hired the services of professional lobbyists as some agencies do; rarely built coalitions or partnered with other agencies; typically justified their budgets well; and behaved less acquisitively than other agencies.60 Those surveyed in the other branches tended to rate the effectiveness of court budget strategies lower than the court officials themselves did.61 Cannon also notes the reticence of judges to lobby the other branches, but discusses policy agendas by Chief Justice Warren Burger to improve intergovernmental relations.62 Second, state and federal canons of judicial conduct provide boundaries for the political behavior of judges.63 Some of the boundaries that Smith notes include: prohibitions against the use of appropriated funds to lobby Congress or influence legislation; oaths that jurists will not testify before Congress or discuss policy with other branches, unless the policy matter directly affects judicial administration; and worries about their public image.64 Political behavior, then, is generally discouraged and traditionally limited to issues related to the administration of justice. There is also a lot of political space provided for judges to lobby formally and informally when considering the breadth of what constitutes impacts on judicial administration.65 In fact, the United States Code permits judges to use proper official channels to communicate requests to Congress.66 In addition, Winkle notes that Canon 4 of the Code of Judicial Conduct allows judges to essentially lobby as long as they aim to improve the law, the legal system and the administration of justice.67 Distinctions, though, are often drawn between representing the institution politically and judges
See Mark W. Cannon & Warren I. Cikins, Interbranch Cooperation in Improving the Administration of Justice: A Major Innovation, 38 WASH. & LEE L. REV. 1, 4 (1981). Cannon, 1982 ; see Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 46. See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 56. 61 Id. at 43. 62 ILL Cannon. 63 See, e.g., CODE OF JUDICIAL CONDUCT Canon 4(B) (1983). 64 CHRISTOPHER E. SMITH, JUDICIAL SELF-INTEREST: FEDERAL JUDGES AND COURT ADMINISTRATION 19 (1995) (quoting 18 U.S.C. 1913 (2002)). 65 See id. at 20. 66 18 U.S.C. 1913; Winkle, Administrative Office of the U.S. Courts as Liaison, supra note 8, at 43 n.2.
60 67 59
58
Winkle, Administrative Office of the U.S. Courts as Liaison, supra note 8, at 43 n.2.
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lobbying as individuals for change.68 Resnik provides an excellent discussion of the difference between judges speaking as individuals and speaking as the institution.69 Last, there are other problems regarding intergovernmental relations facing courts that emanate, in part, from those above. The judiciary is adversely affected by the lack of political saliency that issues of judicial administration have with the public.70 For the most part, many of the issues facing courts are viewed as less significant than public problems, such as education and transportation. When criminal-justice issues are at the forefront, concerns of the judiciary may be overshadowed by more politically-salient government functions such as law enforcement, corrections, and prosecution. Another related issue is that courts have less political clout to offer the other branches in comparison with other agencies fighting for attention and resources.71 Courts lack the ability to provide political pork to districts and thus lack political currency to trade with legislators in negotiations or when making policy deals. Another issue is that, unlike the heads of public agencies, some judges lack managerial, political, and policy backgrounds.72 Fewer judicial leaders have educational backgrounds, such as a Masters of Public Administration or Masters of Business Administration, than do other leaders in public service.73 Law schools for the most part do not provide this type of educational background.74 Some judicial leaders may have obtained political leadership experience from having served in public office, or such experience may have been avoided until ascent to a leadership position. The background necessary to negotiate the political process effectively may be left to court administrators who lack some of the power and respect afforded judges inside and outside of court organizations.75 Finally, there is the issue of turnover in judicial leadership. Judges typically become judges to hear and decide cases. Not only is there a lack of policy and management background among some who ascend to positions like presiding judge, chief judge, or chief justice, but there are
Resnik, supra note 7, at 281. Id. at 278-82. 70 See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35. 71 See id. 72 See Stephen B. Burbank, Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. PA. L. REV. 1, 43 (2012). 73 See id. 74 Tina L. Stark, Thinking Like a Deal Lawyer, 54 J. LEGAL EDUC. 223, 232 (2004). 75 Robert Wessels, The Court Administrator: A Manual, NACM, http://www.fjc.gov/public/pdf.nsf/lookup/court_admin.pdf/$file/court_admin.pdf.
69
68
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also tenure issues and sometimes a lack of interest in the positions by those who might be excellent at the work.76 In some jurisdictions, the position of presiding judge is term limited, while in others, the position may be rotated among members of the bench, and while in yet others, the position may go to the most senior member of the court.77 Some may view it as their time to serve and exit as quickly as possible. In the world of intergovernmental relations, long-term, stable relationships are extremely important. Instituting longer tenures for judicial leadership roles may lead to more effective intergovernmental relations. Even with the advances in court management over the past forty years, courts still may lack effective policy leadership, adequate resources to spend on intergovernmental-relations work, political capital, and the political saliency to command the same kind of attention of law makers and funders. Other government agencies that are competing for political attention may have advantages over the judiciary.78 III. An Overview of Research on Court Lobbying Efforts and Strategies
Despite the limitations and constraints placed on political behavior of courts, there are examples reported in research of effective intergovernmental relations throughout history.79 In the past, the judiciary and barsometimes repeatedlyhave set forth agendas to improve interbranch relations.80 The previously discussed limitations on court
76 See John M. Greacen, An Administrators Perspective on Judicial Leadership, 40 JUDGES J. 41, 41 (2001).
Id. Roger E. Hartley & James W. Douglas, Budgeting for State Courts: The Perceptions of Key Officials Regarding the Determinants of Budget Success, 24 JUST. SYS. J. 251, 251 (2003) [hereinafter Hartley & Douglas, Budgeting for State Courts]. 79 See, e.g., Carl Baar, The Scope and Limits of Court Reform, 5 JUST. SYS. J. 274, 276 (1979) [hereinafter Baar, The Scope and Limits of Court Reform]; Cannon, supra note 56, at 669-78; Crowe, supra note 8, at 73-75; Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288; Carl Baar, When Judges Lobby: Congress and Court Administration 18-19, 33-34 (Aug. 1969) (unpublished Ph.D. dissertation, University of Chicago) (on file with University of Chicago) [hereinafter Baar, When Judges Lobby].
78 80 See NATL CTR. FOR STATE COURTS & PEW CTR. ON THE STATES, THE ROLE OF STATE COURT LEADERS IN SUPPORTING PUBLIC POLICY THAT AFFECTS THE ADMINISTRATION OF JUSTICE, A CONF. REP. & PROFILE OF INTER-BRANCH INITIATIVES 5 (2008), available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1865; LINDA K. RIDGE ET AL., LEGISLATIVEJUDICIAL RELATIONS: SEEKING A NEW PARTNERSHIP: A GUIDEBOOK FOR LEGISLATIVEJUDICIAL RELATIONS 9-10 (1992); Am. Bar Assn & Natl Ctr. for State Courts, 300 State Officials Leave State Courts Summit with Plans for Action to Improve Relations, Protect Court Funding, DIV. MEDIA REL. & COMM. SERVS. (2009), available at http://www.abanow.org/2009/05/300-state-officials-leave-state-courts-summit-with-plans-for-
77
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intergovernmental relations led to calls by scholars for courts to change lobbying behavior by adopting different political tactics and increasing political activity.81 For example, studies of intergovernmental relations that focus on other government agencies suggest that courts could improve the saliency of their issues by more effectively building coalitions and partnering with other organizations on lobbying efforts.82 In 2004, Douglas and Hartley called for this type of behavior and specifically noted, for example, that the movement toward specialty and community courts opens opportunities for new coalitions and lobby partnerships.83 Unfortunately, while court lobbying and intergovernmental relations are salient policy issues to those in the court community, these issues have not received as much empirical attention by scholars. In 2003, Winkle noted that research on judicial lobbying efforts has been a topic of low salience on research agendas,84 and again in 2008, that research is sparse.85 Some studies do exist, but focus primarily on what federal courts lobby for and who interacts with Congress;86 on past lobby efforts of federal judges;87 on particular court reform efforts like jurisdiction, court structure, and the creation of new rights;88 or are focused more narrowly on budget politics.89 There are fewer studies at the state level. Most are primarily case studies limited to judicial lobbying efforts in particular states,90 the scope of
action-to-improve-relations-protect-court-funding/; Cannon, supra note 56, at 673-75. 81 See NATL CTR. FOR STATE COURTS & PEW CTR. ON THE STATES, supra note 81, at 3-5; RIDGE, supra note 81, at iii-iv; Am. Bar Assn and Natl Ctr. for State Courts, supra note 81; Cannon, supra note 56, at 669-78.
82 ROBERT A. KATZMANN, COURTS AND CONGRESS 10-11, 36-37 (Brookings Institution Press 1997) [hereinafter KATZMANN, COURTS AND CONGRESS]; Robert A. Katzmann, The Continuing Challenge, in JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 180, 185-90 (Robert A. Katzmann ed., 1988) [hereinafter Katzmann, The Continuing Challenge]; Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35-36; Geyh, supra note 36, at 1235-36; Hartley, State Budget Politics and Judicial Independence, supra note 1, at 16-23.
Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 37. Winkle, Administrative Office of U.S. Courts as Liaison, supra note 8, at 43. 85 Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288. 86 Wheeler & Katzmann, supra note 19, at 1155, 1157, 1172; Winkle, Administrative Office of U.S. Courts as Liaison, supra note 8, at 44, 60-61.
84
83
See Baar, When Judges Lobby, supra note 80, at 18-19; Crowe, supra note 8, at 78, 80. DEBORAH J. BARROW & THOMAS G. WALKER, A COURT DIVIDED 258, 262 (5th ed. 1988); Buchman, supra note 8, at 1-4; Crowe, supra note 8, at 73-75; Winkle, Judges Before Congress, supra note 18, at 443-44; Winkle & Oswald, The Role of Trial Judges, supra note 19, at 263.
88 89 BARROW & WALKER, supra note 90, at 258, 262; Buchman, supra note 8, at 1-4; Crowe, supra note 8, at 73-75; Winkle, Judges as Lobbyists, supra note 19, at 263; Winkle, Judges Before Congress, supra note 18, at 443-44. 90 Thomas G. Walker & Deborah J. Barrow, Funding the Federal Judiciary: The Congressional Connection, 69 JUDICATURE 43, 43-44 (1985); Dean L. Yarwood & Bradley C. Canon, On the
87
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efforts at court reform,91 or are limited to budget politics.92 Multi-state studies of judicial lobbying are very rare and are either outdated93 or are exploratory, unpublished efforts. Baar and Baars 1976-1977 work is the most systematic of these efforts and most relevant to this study.94 The remainder of work is primarily normative in nature, focusing on judicial participation in intergovernmental relations. This research typically defines the scope of the problem of intergovernmental relations, identifies issues that courts focus their lobby efforts on, and addresses concerns about how to approach intergovernmental relations and how it might be done more effectively. For example, there was a symposium in a 2007 issue of Georgetown Law Journal that compiled essays born of a Georgetown conference entitled, Fair and Independent Courts: A Conference on the State of the Judiciary.95 Additional information is also found in the work of judicial commissions and summits that identify best practices used by courts and set forth strategies, tactics, and agendas for political change.96 These exist in the archival form of policy documents, white papers, and reports. A review of past research points to the need for more study of how courts perform the tasks of intergovernmental relations. Work at the federal level focuses primarily on the behavior of judges and the role of the Legislative Affairs Office of the Administrative Office of the United States Courts.97 As Winkle notes, we need to examine the effectiveness of lobbying strategies from the standpoints of Congress and executive agencies.98 In other words, how do Congressional members and staff view courts and judges who lobby, and how do their tactics and strategies compare with those of other agencies? There is a particular need, however, for more systematic and
Supreme Courts Annual Trek to the Capitol, 63 JUDICATURE 322, 322 (1980). 91 FORREST TALBOTT, INTERGOVERNMENTAL RELATIONS AND THE COURTS 137-42 (William Anderson ed., 1950); Winkle & Oswald, supra note 19, at 288-89. Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19, at 54-78; James W. Douglas & Roger E. Hartley, The Politics of Court Budgeting in the States: Is Judicial Independence Threatened?, 63 PUB. ADMIN. REV. 441, 441-42 (2003) [hereinafter Douglas & Hartley, The Politics of Court Budgeting in the States]; Hartley & Douglas, Budgeting for State Courts, supra note 79, at 251, 260. Baar & Baar, supra note 19, at 210-11. See generally id. at 224-25. 95 Judith Areen, Fair and Independent Courts: A Conference on the State of the Judiciary, 95 GEO. L.J. 895, 895 (2007) (introducing the Georgetown Law Journal symposium issue). 96 See id. at 1175. 97 See Office of Legislative Affairs: About the Office, THE U.S. DEPT OF JUSTICE, http://www.justice.gov/ola/about-ola.html (last modified Aug. 2011).
94 98 93 92
See Winkle, Administrative Office of U.S. Courts as Liaison, supra note 8, at 60.
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comparative state court studies.99 As the next section demonstrates, past research elucidates important avenues that court leaders may consider for improving intergovernmental relations. It also points us to important theoretical considerations and propositions for future research. IV. What Does Research Tell Court Leaders? As noted throughout this Article, there are good sources on court lobbying and politics that might impact court budgets.100 An in-depth look at the research reveals important points for court leaders to consider as they work toward improving intergovernmental relations and plan lobbying efforts. In addition to surveying past research, I provide some very preliminary evidence from New York and Washington on how their respective judiciaries built institutions that helped them plan and lobby more effectively. In each of the highlighted areas, there is a need for more research and consideration of the differences among states, levels of courts, and differences in international settings. These points, I hope, will help us steer this important conversation in some useful way toward better intergovernmental relations for the judiciary and less crisis in the future. A. Funding SourcesState Versus Local and the Mix of Funds One important consideration for intergovernmental relations is the audience that you shouldor mustaddress. In the case of budget politics, there have long been arguments about court consolidation that involve the idea of shifting local funding of courts to the state.101 A great source on this debate, and study of this issue, is a 2008 report by Carlson, Harrison, and Hudzik, funded by the National Institute of Justice.102 Reformers have argued that shifting to statewide-funding sources might improve overall funding for the state courts.103 Centralization would allow courts to speak with one voice in their lobby efforts, look more salient to legislators, and improve funding and efficiency of managing budgets. Another important consideration was that state funding might improve equity in funding across counties. A comparative study of Florida,
See Baar & Baar, supra note 19, at 210. See supra Part III. 101 See, e.g., STATE BAR OF MICHIGAN JUDICIAL CROSSROADS TASK FORCE, REPORT OF THE COURT STRUCTURE AND RESOURCES COMMITTEE (2010) (citing findings and recommendations, including and bearing particular relevance here, Findings 2, 4, 7, 10 & Recommendation III).
100
99
ALAN CARLSON ET AL., ADEQUATE, STABLE, EQUITABLE, AND RESPONSIBLE TRIAL COURT FUNDING: REFRAMING THE STATE VS. LOCAL DEBATE, at ii (2008). 103 See John E. Thies, Why Adequate Court Funding Continues to Be an ISBA Priority, 100 ILL. B.J. 572, 572 (2012), available at http://www.isba.org/ibj/2012/11/whyadequatecourtfundingcontinuestob.
102
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New Jersey, and Washington found that there were no apparent advantages or differences of state funding over local funding in outcome.104 While the report highlighted other important considerations for the shift to state funding (like improving equity across trial courts), it suggests that courts were not better funded overall by states than localities.105 There are good political reasons why differences in state versus local funding may not make much of a difference. In State Court Strategies and Politics During the Appropriations Process, Douglas and Hartley suggest that politics exists at every level of government.106 Moving from local to state funding moves courts to a larger pool of resources, but it also places all of courts eggs in one basket. Assumptions of better funding at different levels of government may overlook important political considerations of how to better interact with and persuade those whom you are lobbying. Such considerations include: What resources are devoted to lobbying? How do courts plan and implement intergovernmental-relations work? And, What strategies are employed? These are all important considerations apart from the place the lobbying is performed. The state versus local argument assumes that courts will do better at the state level than they would with local officials whom they know well and have interacted with over many years. The debate also raises assumptions that there will be funding at the state level and support for courts in the legislature. As we are well aware, states took enormous financial hits in the great recession, and balanced-budget laws have made cuts a popular choice over tax increases with many state leaders.107 Another interesting consideration is whether state legislators and governors adequately understand the needs of courts.108 Research indicates that there are fewer attorney-members of state legislatures than at any time in our countrys history.109 In the 2000s, there was a time in Arizona where the Senate Judiciary Committee did not have a single attorney-member.110 With fewer attorneys in state legislatures, effective communication of court needs is of even greater import and becomes a more difficult task. However, the mix of funding sources may also be important. Some
CARLSON ET AL., supra note 103, at 128. Id. 106 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 54. 107 Michael L. Buenger, The Challenge of Funding State Courts in Tough Fiscal Times, 41 CT. REV. J. AM. JUDGES ASSN 14, 14 (2004).
105
104
See Janet Stidman Eveleth, Lawyer Legislators Vanishing from Legislative Landscape, 41 MD. B.J. 62, 63 (2008). 109 Id. 110 Roger E. Hartley, Research Notes, Membership of the Arizona Senate Judiciary Committee (Jan. 22, 2013) (on file with author).
108
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suggest that a healthy, diversified mix of funds from local, state, and federal sources (including the use of grants, fees, and fines) may be a more stable revenue model in the long term versus receipt of funds from a single or few providers. Think of this like a future retiree would a diversified investment portfolio: if one source becomes less reliable, another source might fill the gap. However, a mix of funds means the needs for effective management and administration are extremely important. A court will need the administrative capacity to manage the funding sources effectively with high quality budget and finance managers. In addition, funding sources like grants can lead to mission creep or expansion of service beyond that of the core. In a 2004 study of drug courts, Douglas and Hartley noted that chasing grants might spread an organization too thin and lead to crisis if the grants run out and cannot be replaced with other funding sources.111 This was a problem for some drug courts that received very generous start-up grants from the federal government only to struggle hard to find local or state funding when such grants ran out.112 A mix of funding also makes necessary the persuading of, and answering to, multiple masters for funding. In this way, power and control over court operations can creep away from court leaders. The bottom line is that shifting the funding source or diversifying the mix of funds may not matter as much as the effort placed at improving and creating effective lobbying institutions. The shift from local to state funding arguably makes lobbying capacity and skill even more critical than before because all state trial courts are in the same strong or weak boat. B. Lobby Strategy and Tactics Past research by Douglas and Hartley in the 2000s focused on strategies courts used to obtain their budgets.113 This research was limited insofar as it was done at the state level and made use of surveys and indepth interviews of court budget officers and those whom the courts went to for funding in the governors office and in state legislatures.114 These works are also limited to how courts obtain their budgets and do not focus on strategy in other policy areas. Preliminary data from interviews in
111 James W. Douglas & Roger E. Hartley, Sustaining Drug Courts in Arizona and South Carolina: An Experience in Hodgepodge Budgeting, 25 JUST. SYS. J. 75, 83 (2004) [hereinafter Douglas & Hartley, Sustaining Drug Courts in Arizona and South Carolina].
Id. at 85. See generally Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 54 (detailing ways in which state courts can lobby for funds); Douglas & Hartley, Sustaining Drug Courts in Arizona and South Carolina, supra note 112, at 85 (providing research and insight into how drug courts perform and should obtain operating funds).
113 114
112
See Douglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 445.
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Washington and New York are presented later. Some of these findings examine how courts create institutional mechanisms for effective intergovernmental relations. 1. Lobby for Constitutional Reforms Allowing for Submission of the Budget Directly to the Legislature: Where a State Court Budget is Submitted Matters.
We have learned that who you submit the budget to, and who provides it, matters. For example, in some states like Virginia, court leaders submit their budget to the Governors office where it could be altered and combined into one gubernatorial proposal.115 It would then be sent to the state legislature for approval and where it could be further altered.116 Court leaders stated that they have the difficult task of defending their budget to the Governor and then asking the legislature to restore any cuts. These procedures resemble a two-front intergovernmental-relations battle. Other states have instituted constitutional mandates whereby a budget must be sent directly to the state legislature after preparation by the court, or that it must be sent to the governors office but cannot be altered by the governor.117 One important policy reform for states includes direct submission of judicial budgets to the legislature for consideration without alteration. An argument can be made that an independent court should not be forced to behave like any other state agency by submitting their budget request to the executive branch. Yet, we know much less about how trial courts negotiate the budget process at the local level. More research is needed as some state courts are funded primarily by local governments. 2. Lobby Against Legislative Adoption of Restrictive Line Items.
Another important consideration that was mentioned at the Crisis in the Judiciary Symposium was control over court spending once the budget is allocated.118 In some states, legislatures impose restrictive line items that mandate or limit how budget money is spent.119 Some argue that independent courts should have more freedom to receive a budget in a lump sum and spend the funds as needed or with limited restrictions. This may also allow for better management and implementation of budgets by those who know more about how the money can be best spent. Of course,
115 116 117 118 119
Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19, at 67-68. Id. See Douglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 452. See Hartley & Douglas, Budgeting for State Courts, supra note 79, at 253-60. See Douglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 446.
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there are concerns about the waste of resources and the impact of the funds spent. Courts need to justify the budgets each year with good evidence of the impact of the funds that were budgeted and spent. 3. Important Judicial Strategies to Obtain Funding
The series of papers noted in this section also provide examples of strategies used by courts that were effective when seeking funds. This data was gathered from a fifty state survey of court leaders and budget officials from the executive and legislative branches of state governments. We asked each of the three to rate a series of strategies used by courts to obtain funding and compared the responses.120 Some of the findings and highest rated strategies involved effective communication of court needs: properly justifying budget requests and submitting reasonable requests.121 These strategies gave funders confidence that courts needed what they asked for and that courts used these funds effectively. However, these tactics also undersold court needs. Douglas and Hartley found that some state legislatures gave courts more than they asked for.122 While on the surface this seems like a wonderful development, negotiation theory suggests otherwise. Where one receives more than he or she requests, negotiation theory suggests this individual could have received even more with a larger, properly justified request. As it turns out, those who asked for more than what they needed were able to expand their budgets from their baserequest over time. The bottom line here is that budget politics is a negotiation and like other agencies, courts should behave acquisitively. They should request more than what they need and justify those additional requests. After cuts, courts are left with more than they would have received by a conservative request. 4. R.E.S.P.E.C.T.
Douglas and Hartley also found that where the governor and legislature respect the judiciary, more weight was given to judicial requests.123 But how is this respect earned? Of the survey respondents, playing the judicial independence card was not highly rated. The argument that courts somehow deserve funding because they are an independent and separate branch was more highly rated by court officials than their audience.124 The extent to which lawyers served in the legislature
120
See, e.g., id. at 445-51; Hartley & Douglas, Budgeting for State Courts, supra note 79, at 253Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 36. Id. Id. See Hartley & Douglas, Budgeting for State Courts, supra note 79, at 257-58.
60.
121 122 123 124
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improved legitimacy of judicial requests. Other strategies to build trust and respect of the judiciary were also rated well by respondents. These included making use of personal contacts with legislators, informal lobbying of legislators, and using the chief justice to lobby the governor or key legislators. Direct lobbying by a state court administrator was also rated moderately high. Other strategies that were important, but not as highly rated, included appearing at legislative hearings, lobbying of individual legislators by lower court judges, and mobilization of political supporters. The mobilization of political supporters is worth mentioning further. If courts, by themselves, do not look salient or important to legislators, then building coalitions with others might improve how legislators view court needs. As it stands, courts cannot provide much political bang for the buck for legislators who are interested in re-election. When courts are joined by other important constituents, including: prosecution; defense; family advocacy groups; corrections; probation; and the treatment community, the chance for a legislator to broaden support expands. Partnerships draw attention to the importance of an issue. By analogy, when the Department of Transportation lobbies for more road building funds, it is often supported by road builders, asphalt makers, and car buildersall powerful constituents.125 One example of how courts might accomplish an effective coalition is through specialized treatment courts, such as drug courts. Drug courts expand the reach of the judiciary to community interest groups, including: the drug treatment community; probation; prosecutors and public defenders; the medical community; education providers; and other government agencies that provide wraparound services, like job skills or housing.126 Drug courts expand the reach of the judiciary into the community and thereby expand court networks. On a case-by-case basis, these partners could be called on for support of legislative efforts and even funding.127 Interestingly, Douglas and Hartley found very limited use of partnerships and allies by courts in the budget process.128 Of the few respondents that had recalled coalitions and allies lobbying for courts, the bar and judges associations were most common.129 Use of outside allies was
125 See, e.g., Matthew Mosk, Toyota Gives $100K to Democratic, Republican Political Groups, ABC NEWS (Feb. 9, 2010), http://www.abcnews.go.com/blotter/runawayToyotas/Toyota-100Kdemocratic-republican-political-groups/story?id=9786215 (reporting that Toyota spent more than $5 million on lobbying efforts in 2009). 126 127 128 129
See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 76. Id. at 37. Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19, at 71. Id. at 71.
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an important strategy in both Washington and New Yorks intergovernmental-relations plans.130 Therefore, maintaining informal contacts with local legislators and capitalizing on personal relationships make a difference. Finding creative strategies to forge relationships that are ongoing and stable will improve communication and build respect for the judicial branch. As noted earlier, one of the weaknesses from which the courts suffer in their intergovernmental-relations efforts is a lack of political salience to lawmakers and the public. These forms of persuasion and others might build salience. The use of allies to lobby for courts and the building of longlasting coalitions can increase political salience of judicial needs. In addition to the example of drug courts, coalition partners might include popular government groups like the League of Women Voters, business groups, non-profits who interact with courts or regularly serve court clients, and treatment providers for substance abuse and mental health.131 Increased attention to effective intergovernmental relations should include: use of the prestige of judges; building strong and stable policy networks with lawmakers and allies; and building trust with strong communication, planning of legislative agendas, and justification of requests. The institutionalization of intergovernmental-relations work in courts is also very important. Courts cannot be outgunned by those with whom they compete. Building effective court-management capacity and lobbying capacity are a necessity. We need more research on the resources devoted to lobbying efforts, but one example comes from Arizona. The entire state court system had a single intergovernmental-affairs officer who shared an administrative assistant and had a few interns.132 Each year they were able to pay a college student or two as an intern during the legislative session to monitor bills as they worked to influence legislation. As of 2013, the staff increased to an intergovernmental affairs officer, another full-time staff person to work on legislations, a full-time administrative assistant, and two interns. It would be interesting to know what a typical state agency devotes to capacity for lobbying. Other states, however, have done some creative institution building for their intergovernmental-affairs work.133 As part of my ongoing research agenda, I have begun to study how courts do the work of intergovernmental relations more generally. My questions include: What resources are devoted in states? Who do they lobby? What process or
Id. Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 37. 132 Telephone Interview with Intergovernmental Affairs Representative, Arizona State Judiciary (Mar. 12, 2013).
131 133
130
See infra notes 139-46 and accompanying text.
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planning is done? What tactics are used? Do courts make use of allies? And, What challenges do they face? In my initial work, I interviewed officials in the states of New York and Washington as the beginning of what I hope are several case studies that will provide evidence for a booklength project. Here, I present some limited and very preliminary findings from these states that I hope will serve as examples of some of the research presented earlier and build some foundation for what we might be able to learn with more research. V. Intergovernmental-Relations Institutions in New York and Washington A. The Example of New York: A Legislative Affairs Committee and Process New York State built an institutional process that was used each year to generate and implement a legislative relations agenda.134 In New York, a legislative affairs committee was created and granted broad court representation to plan and even write bills for court needs.135 The committee created an agenda of proposals in the late summer or early fall of each year, prior to the spring legislative session. Committee members shopped these proposals to other interested groups that might be impacted positively or negatively by the agenda item. This allowed them to get valuable feedback on the proposal, build support and enlist partners who might support the bill, and also identify opposition and problems with the bills. This process would provide important information that would allow the committee to reassess proposals, refine them, or separate the wheat from the chaff. Some proposals were dropped if the timing did not look good or if significant opposition might be present. The committee continued to meet and work during the legislative session to track bills, attend hearings, and lobby to build support for the agenda items. When asked about assembling allies or legislative supporters, I was told that it was very valuable and that it was done on a case-by-case basis depending on the issue and to what extent the problem reached third parties.136 They built coalitions when appropriate. Other lobbying tactics mentioned included use of the chief justice when an issue was close or a serious need presented itself. They used the time of the chief
134 See Interview with Marc Bloustein, First Deputy & Legislative Counsel, N.Y. Office of Court Admin. Staff, in N.Y.C., N.Y. (Oct. 13, 2009).
Introduction to the NYC Bar Legislative Affairs DepartmentFrequently Asked Questions, NEW YORK CITY BAR, http://www.nycbar.org/legislative-affairs/legislative-affairs-faq (last visited Apr. 9, 2013).
136
135
Interview with Marc Bloustein, supra note 135.
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very judiciously. The intended message being that if the chief justice appeared, then funders and lawmakers knew that the issue was important. Political capital was then built and spent only when necessary. Another interesting point made about the chief justice was that he had been around, knew many legislators, and had built strong support for the bench over time. This tends to support the idea that tenure of judicial leaders might matter a great deal for the fortunes of courts in intergovernmental-relations work.137 Turnover requires introducing a new leader to lawmakers who might need time and interaction to build trust and support, and getting the new leader up to speed on court agenda items. New agenda items from the new leader then, in turn, might displace other important agenda items. B. The Example of Washington: The Justice in Jeopardy Commission Washington State had a problem with insufficient funding of the courts. To solve the problem from an intergovernmental-relations perspective, Washington built a commission to lobby for court needs.138 It would appear that this was done intentionally to address the conundrum presented earlier in this paperthat there is a fear that active and open lobbying by court leaders might diminish or harm the legitimacy and independence of courts. By entering the political fray, courts and judges can become entangled in politics that might harm perceptions of impartiality.139 Washingtons judiciary created the Justice in Jeopardy Commission.140 The Commission was a diverse group with representation of judges, academics, important civic leaders, business leaders, popular government groups like the League of Women Voters, the Judges Association, the State Bar, and former and present members of the state legislature.141 The Commission was independent, could raise funds, donate to political campaigns, run ads, and more. The Commission was able to hire a professional lobbyist. It went to bat for courts politically when the latter felt uncomfortable and the wide membership of the groups promoted
See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 36. See BD. FOR JUDICIAL ADMIN. COURT FUNDING TASK FORCE, JUSTICE IN JEOPARDY: THE COURT FUNDING CRISIS IN WASHINGTON STATE 10-12, 20-22 (2004) [hereinafter JUSTICE IN JEOPARDY], available at http://www.courts.wa.gov/programs_orgs/pos_bja/wgFinal/wgFinal.pdf.
138
137
See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35. See JUSTICE IN JEOPARDY, supra note 139, at 11, 20; see also Justice in Jeopardy, WASHINGTON COURTS, http://www.courts.wa.gov/JusticeInJeopardy/index.cfm?JusticeInJeopardy.showtab&tab=hom e (last visited Mar. 11, 2013).
140 141
139
See JUSTICE IN JEOPARDY, supra note 13942, at 7-11.
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a diversity of political support and much more salience. These examples of New York and Washington provide initial evidence that there is some creative thinking in the judiciary about how to do a better job of lobbying for court needs. There is much left to learn, and there is much for courts to learn from each other. More systematic and scientific research is needed to identify what strategies are used, the capacity of courts to lobby effectively, and what works and what does not. VI. Building Theory and Future Directions A. Building from Past Research Beyond the sheer need to explore and know more, the theoretical underpinnings of this work are interesting and important to both scholars and practitioners. Past research lends some credence to the catch-22 that courts face in their intergovernmental-relations activity. Empirical studies suggest that courts, in general, behave conservatively when seeking resources, commenting on legislation that may impact them, or attempting to fend off attacks.142 Some normative research also cautions against behaving too aggressively. The fears of how courts are perceived when engaging the other branches still exist.143 Studies suggest the constraints that courts face beyond preserving their role as an impartial branch (e.g., political saliency, capacity, and resources) also hinder their ability to lobby as effectively as other government organizations.144 Ample evidence from past scholarship suggests that courts, in general, still play it safe when interacting with other branches of government.145 On the other hand, some research suggests that some courts are very strategic, innovative, and more effective at lobbying than others.146 The initial evidence from New York and Washington raises questions about the impact of their efforts and what other court systems might be doing. With the increased focus on intergovernmental relations in recent years, are we
See Douglas & Hartley, Making the Case for Court Funding, supra note 20, at 35. See Hartley & Douglas, Budgeting for State Courts, supra note , at 251. 144 Id.; see also Cannon, supra note 56, at 668; Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35. 145 See Resnik, supra note 7, at 282 (explaining that Chief Justice Rehnquist urged judges to use caution when expressing opinions on congressional policy issues); see also Judith Resnik, Trial as Error, Jurisdiction as Inquiry: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 1015 (2000) (noting that the federal courts are at the mercy of Congress and that constructive relations between the two depends on good will).
143 146 See, e.g., Geyh, supra note 36, at 1224-25 (explaining the federal judiciarys successful lobbying efforts through consensus-building in Congress); Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19, at 445 (noting the success of Oklahoma and Virginia state courts in obtaining funding through various means).
142
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seeing an increase in the attention paid by other courts to best practices? Scholarship demonstrates that effective court leaders, or other policy entrepreneurs, have mobilized efforts to change our federal and state courts.147 Studies indicate that chief justices, at the federal and state levels, commonly interact with other branches, both formally and informally.148 In addition, other judges (e.g., trial court judges) may be called upon to lobby for court needs, like budgets or other statewide structural needs.149 This scholarship suggests that strong, effective, and established judicial leaders might be more effective since they have had time to build relationships and political capital with those they wish to influence.150 It also sheds light on the importance of organizations of judges, such as state and federal judicial colleges or conferences of judges. There is also research detailing the role of court administrators and their administrative staff. Winkles 2003 study discusses the role of the Administrative Office of the United States Courts and their Legislative Liaison Office.151 State courts also have staff members devoted to intergovernmental-relations work. These staff members serve as important intermediaries and allow judges to avoid the sometimes uncomfortable day-to-day politics of legislative work. Finally, other studies demonstrate that at times courts can be very strategic in mobilizing support: by calling on outside interests to help them (e.g., the bar);152 by organizing the bench (e.g., lower court judges) to aid in
147 See, e.g., Baar, The Scope and Limits of Court Reform, supra note 80, at 275-76 (noting that local leaders have helped shape court reform); Cannon, supra note 56, at 668; Crowe, supra note 8, at 73-74 (highlighting court reform under Chief Justice Taft); Wheeler & Katzmann, supra note 19, at 1157 (explaining that the political branches have played a role in shaping court policy and reform); Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288 (explaining the role of Mississippi judges in court reform in that state). 148 Baar & Baar, supra note 19, at 222-23; Buchman, supra note 8, at 1-2; Crowe, supra note 8, at 78; Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 41. 149 See, e.g., Baar & Baar, supra note 19, at 221 (explaining the role of individual judges, such as administrative judges, in lobbying efforts directed at legislatures); Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288. 150 See, e.g., Crowe, supra note 8, at 79-80 (describing Chief Justice Tafts effectiveness as a judicial lobbyist because of his political experience and extensive network among legislators and civil society).
See Winkle, Administrative Office of the U.S. Courts as Liaison, supra note 8, at 43-44. See, e.g., id. (describing Chief Justice Tafts efforts to secure the support of the ABA in his lobbying efforts and their pivotal role as his ally); Winkle, Judges as Lobbyists, supra note 19, at 270-71 (describing the federal judiciarys use of the public mass campaign as a technique to influence the legislature); Winkle, Judges Before Congress, supra note 18, at 449-50 (describing the judiciarys alliance with the National Association of Attorneys General to attempt Habeas reform in the 1950s).
152
151
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political mobilization;153 and by building ties and coalitions with others outside of courts (e.g., business and political leaders).154 There is also ample evidence that court officials and their partners place emphasis on strategic and policy planning to improve interbranch relations and lobbying efforts. This is done at blue ribbon commissions, task forces, conferences, and summits.155 However, there is no research that has yet gauged the effectiveness of these court- and bar-initiated efforts. B. Future Research Past research at the federal and state level points to important questions that, despite past work, call for better answers. More research on intergovernmental relations focusing on state diversity could provide important knowledge to guide policy efforts seeking to change court intergovernmental-relations strategies at the federal, state, and even international levels. Given the recent attention to intergovernmental relations by policymakers (and efforts of courts to revamp their relations with other branches), How do courts perform the task of intergovernmental relations now? Who lobbies for state courtsjudges, court administrators, members of the bar, or others external to courts? What do state courts commonly lobby for and againstlegislation that impacts court administration, for new rights, or changes in jurisdiction? How do courts lobby the other brancheswith professional lobbyists, coalitions, or use of outside groups? What impacts the capacity of courts to lobbymoney, FTEs, or other resources? What strategies do courts use nowstrategies and policy planning to improve court lobbying? What opportunities do they create for more effective lobbying?
CONCLUSION
Policy decisions, themselves the products of conflict, impact the way each court leader views a crisis. Attention to what produces these conflicts, and how to effectively manage them, is a subject of politics that entails building internal processes to plan for how policy decisions are madeor building other political institutions that are designed to produce support for courts. Interacting with and involving stakeholders in decisions can produce effective and stable external relationships. There needs to be
See, e.g., Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288. See, e.g., NATL CTR. FOR STATE COURTS & PEW CTR. ON THE STATES, supra note 81 (describing coalitions built by state judiciaries to accomplish political goals); Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288 (describing coalition building with societal and political forces by judges to achieve Mississippi court reform).
154 155
153
See, e.g., Adeboyejo & Buller, supra note 32.
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attention and resources devoted to building procedures for yearly planning and executing an effective legislative agenda. Past research and some of the preliminary findings of my current research indicate that there are enormous opportunities for court leaders to shape the political future of the judiciary as it interacts with other branches. There is a need to learn what other courts are doing and forum after forum has sought to do this on a host of issues facing courts. However, when we talk amongst ourselves we encounter limitations and existing norms within organizations that drive prevailing notions about what best practices actually are. There is a real need to take what we have learned from each other and start implementing it and seeing how it works. We also need to learn about how other public organizations or agencies do intergovernmental-relations work. We need to know how the agencies that we work with view how we interact. What are effective political tactics to strengthen delivery of the judiciarys message without undermining the impartiality of courts? How do those courts seek their resources and assess the effectiveness of court lobbying; and What can courts do differently or better? What are others doing that courts are not doing?

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DR. ROGER E. HARTLEY*

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See Carter, supra note 10.

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Beverly A. Cigler, The County-State Connection: A National Study of Associations of

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Counties, 54 PUB. ADMIN. REV. 3, 5 (1994).

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Hartley, Intergovernmental Relations and the Courts, supra note 35.

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Hartley, Intergovernmental Relations in the Courts, supra note 34.

Hartley, Intergovernmental Relations in the Courts, supra note 34. Id.

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See id. at 51.

See Burbank, supra note 7, at 925-27; Resnik, supra note 7, at 292.

See GEYH, supra note 52, at 234-35.

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See infra notes 139-46 and accompanying text.

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Interview with Marc Bloustein, supra note 135.

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See JUSTICE IN JEOPARDY, supra note 13942, at 7-11.

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See, e.g., Adeboyejo & Buller, supra note 32.

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