JUDICIAL INDEPENDENCE, the Power of the PURSE, and Inherent JUDICIAL POWERS

JUDICIAL INDEPENDENCE, the power of the PURSE, and inherent JUDICIAL POWERS

The use of inherent judicial powers to make up budget shortfalls raises fundamental questions about judicial independence and the nature of the separation of powers.

by G. Gregg Webb and Keith E. Whittington

ESTELLE CAROL

12 JUDICATURE Volume 88, Number 1 July-August 2004 oney lies at the root of conduct their offices. As James Madi- many conflicts between son noted in explaining the opera- Mthe branches of govern- tion of constitutional checks and ment. It is at the heart of many pol- balances, “the legislative department icy disputes—as different interests, alone has access to the pockets of the political parties, and government offi- people.”1 cials stake out divergent priorities in An effective power of the purse gives the raising and spending of public the legislature a powerful trump card funds—and creates substantial institu- when disagreements arise between it and tional tensions within any system of sepa- the other branches of government, one rated powers. In such systems, the that is so potent that it can threaten legislature rightfully holds the “power On March 14, 2002, Chief Justice judicial independence. To limit this of the purse,” given the intimate con- Kay McFarland of the Kansas threat, the American founders wrote nection between effective democratic Supreme Court ordered an across- into the U.S. Constitution the guar- representation and control over gov- the-board increase in court fees in antee that salaries of judges shall not ernment taxation and spending. the state. be diminished during their time in Indeed, the mother of all legislatures, office. (Although such a guarantee is the British Parliament, largely came common in American state constitu- into existence in order to expand and legitimate the flow tions and endorsed by the United Nations, worldwide it is of revenue into government coffers. one of the least-used constitutional provisions for secur- As the very example of the birth and growth of Parlia- ing judicial independence.2) Though important to pre- ment indicates, however, control over the treasury is a serving the independence of individual judges to make powerful political weapon that can be used against other controversial decisions, the guarantee of undiminished government institutions. In controlling the purse strings, salaries remains fairly marginal to the central conflicts the legislature can reward or punish members of the between courts and legislatures over money and the abil- executive and judicial branches, depending on how they ity of the judiciary to serve as an effective and independent branch of government. In extreme cases, judges may

The authors thank Ken Kersch, Howard Gillman, and the anonymous review- be denied such basics as an office, an adequate supply of ers for their helpful comments. paper, and an up-to-date compendium of statutes.3 Fortu- 1. THE FEDERALIST NO. 48, at 310 (James Madison) (Clinton Rossiter, ed., New York: New American Library, 1961). nately, American judges are rarely faced with such depri- 2. Linda Camp Keith, Judicial independence and human rights protection vation, but the adequacy of resources provided by around the world, 85 JUDICATURE 195, 198 (2002). legislatures to handle judicial business continues to be a 3. See, e.g., Jennifer A. Widner, BUILDING THE RULE OF LAW 68, 217, 219 (New York: W.W. Norton, 2001). contentious issue—especially in the states.

www.ajs.org JUDICATURE 13 A new challenge is emerging in its development over time, and its without the usual deliberation and this recurrent struggle between legis- connection with the centralization of consent of the relevant legislative latures and judiciaries over resources. judicial administration. It then takes body.5 During the past three decades, a closer look at events in Kansas and Similarly, state supreme courts administrative and budget authority the broader constitutional questions have backed judges who have over state judicial systems have been they raised. It closes with some cau- claimed the authority to set the concentrated in state supreme tionary notes on the use of such tools salaries of courthouse personnel or courts. As a consequence, tough to improve the conditions of the who have ordered other institutions budgeting decisions increasingly judicial branch. to provide, or to provide funding for, invite direct confrontations between temporary facilities for holding court the heads of the legislative and judi- The expanding doctrine after the regular courthouse was con- cial branches of state governments. The doctrine of inherent judicial demned, the operation of a court- The possibility of a constitutional power licenses the courts to take house elevator, chairs and carpeting standoff now looms in the states as necessary actions to fulfill their for a courtroom, and courthouse air centralized judicial administrations constitutional functions, even when conditioning.6 combine their institutional muscle those actions are not specifically Such disputes have prompted state with the doctrine of inherent judicial authorized by either constitutional supreme courts to issue particularly powers to secure their own funding text or legislative statute. Inherent high-flown paeans to judicial inde- when state legislatures are either judicial power operates as an pendence. The Indiana Supreme unable or unwilling to authorize ade- implicit “necessary and proper” Court observed in the elevator case, quate appropriations. This conver- clause to the establishment of the for example: gence of contemporary bureaucratic judiciary as an independent and Courts are an integral part of the gov- and fiscal reality with fundamental equal branch of government. In its ernment, and entirely independent; constitutional principle threatens to most minimal guise, the doctrine deriving their powers directly from the dilute traditional notions of the leg- empowers judges to control and constitution, in so far as such powers islative power of the purse. manage their own courtrooms—for are not inherent in the very nature of the judiciary. A court of general juris- Kansas has recently provided a example, by punishing contempt of diction, whether named in the consti- glimpse of this possibility. On March court, excluding photographers tution or established in pursuance of 14, 2002, Chief Justice Kay McFar- from the courtroom, or appointing the provisions of the constitution, can land of the Kansas Supreme Court counsel for criminal defendants. In not be directed, controlled, or ordered an across-the-board increase its more muscular form, the doc- impeded in its functions by any of the other departments of the government. in court fees in the state. This “emer- trine authorizes judges to protect The security of human rights and the gency surcharge” was aimed at mak- themselves and their functions safety of free institutions require the ing up a $3.5 million shortfall in the from the neglect or interference of absolute integrity and freedom of judiciary’s fiscal year 2003 budget, the other branches of government. action of courts.7 which was itself dwarfed by the It thus operates both as an implica- state’s broader projected deficit of tion and guarantor of judicial inde- In explaining why county commis- $680 million for that fiscal year. The pendence. sioners were required to pay clerical supreme court order establishing the It is in this more muscular form, staff in the courthouse at a rate set by surcharge relied upon the judiciary’s as a positive safeguard of judicial the judges rather than at the general “inherent power to do that which is independence, that the inherent rate established for comparable necessary to enable it to perform its power doctrine has been extended county employees, the Colorado mandated duties.” In an accompany- to budgetary matters. This budget- Supreme Court quoted approvingly ing press release, Chief Justice ary power developed, however, from the opinion of the trial court McFarland explained that, “while from relatively modest efforts at that the separation of powers there are things the people of Kansas courtroom management. When a may have to give up in these trying trial judge ordered that a jury be 4. Kansas Supreme Court Order 2002 SC 13, as fiscal times, justice cannot and must sequestered during a murder trial amended March 22, 2002 (www.kscourts.org/sur- 4 charg.htm, last accessed February 6, 2004); State of not be one of them.” and the county commissioners Kansas Office of Judicial Administration Press This innovative use of inherent refused to pay for the jurors’ lodg- Release, March 14, 2002 (www.kscourts.org/fee- news.htm, last accessed February 6, 2004). judicial powers raises fundamental ings, the Pennsylvania Supreme 5. Commissioners v. Hall, 7 Watts 290, 291 (Pa. questions about judicial independ- Court explained in 1838 that the 1838). 6. See, e.g., State ex rel. Schneider v. Cunningham, ence and the nature of the separa- judge had the authority to draw 39 Mont. 165 (1909); Wichita County v. Griffin, 284 tion of powers. This article examines directly on the public purse to S.W.2d 253 (Tex. App. 1955); Bass v. County of Saline, 171 Neb. 538 (1960); Ex Parte Turner, 40 how states reached this point and cover such “contingent expenses of Ark. 548 (1883); Commissioners v. Stout, 136 Ind. 53 raises some questions about the path the court” and provide for “emer- (1893); State ex rel. Kitzmeyer v. Davis, 26 Nev. 373 (1902); Pena v. District Court, 681 P.2d 953 (1984). ahead. It begins by reviewing the gencies” that require “the prompt 7. Board of Commissioners v. Stout, 136 Ind. 53, doctrine of inherent judicial power, and efficient action of the court” 59-60 (1893).

14 JUDICATURE Volume 88, Number 1 July-August 2004 required that each of the three equally situated parties. State Pleas approximately $1.4 million for branches supreme courts, which usually have what was left of the fiscal year. not interfere with or encroach on the not directly benefited from tradi- In a period of general judicial authority or within the province of the tional uses of inherent judicial power assertiveness vis-à-vis other branches other. . . . In their responsibilities and by local courts, have proven willing of government, especially in the duties, the courts must have complete to reduce and void lower-court design of equitable remedies, Carroll independence. It is not only axiomatic, orders as well as uphold them and lifted the doctrine of inherent judi- it is the genius of our government that the courts must be independent, unfet- are capable of applying external cial power from its roots in discrete tered, and free from directives, influ- standards and outside accountability fiscal disputes over courtroom tem- ence, or interference from any to ensure the reasonableness of such perature and clerks’ salaries and posi- extraneous source.8 judicial requests.9 The potentially tioned it as a viable judicial recourse irresolvable conflict of two equal and for obtaining multimillion-dollar Several features of this traditional coordinate branches of government, appropriations and supplanting the use of inherent judicial powers are each holding fast to its respective normal budget-making process. In order to “protect itself” from the other branches, the Carroll court The doctrine of inherent argued, “the [j]udiciary must possess the inherent power to determine and judicial power licenses the compel payment of those sums of money which are reasonable and courts to take necessary necessary to carry out its mandated actions to fulfill their responsibilities, and its powers and duties to administer [j]ustice.”11 Car- constitutional functions. roll influentially held that courts were entitled to whatever funds were “reasonably necessary” for the “efficient notable. The amounts at issue usu- claims of autonomy and prerogative, administration of justice.” ally involve small contingencies is thereby abated by the presence of Though the court understood that rather than the central operation of a common judge—the state supreme the demand for limited city funds the courts. The disputes usually court.10 and services was increasing across the begin with local officials. When nei- The doctrine has been put to board, judicial requests were to ther the local judge nor the local fis- more ambitious use in recent years. trump all others. “The deplorable cal authority relents in the standoff, In December 1969, the judges of the financial conditions in Philadelphia the matter is appealed up the judi- Philadelphia Court of Common must yield to the [c]onstitutional cial hierarchy. These traditional fis- Pleas submitted a budget request to mandate that the [j]udiciary shall be cal battles are ultimately asymmetric the city’s finance director of nearly free and independent and able to proceedings between a local legisla- $20 million for fiscal year 1970. The provide an efficient and effective sys- tive body and a state’s highest court. mayor ultimately recommended, tem of [j]ustice,” the court rea- They become as much a matter of and the city council approved, a soned—including the creation of state and local divisions as inter- budget of just under $16.5 million. “[n]ew programs, techniques, facili- branch divisions, often with state leg- When the court’s request for an ties, and expanded personnel.” What islatures either unaffected or additional $5 million was refused, was “reasonably necessary” to operate implicitly behind the state courts. the judges ordered the city to appro- the city courts was ultimately not to In such circumstances, supreme priate the additional funds. In Com- be decided in the normal legislative courts can serve as relatively neutral monwealth ex rel. Carroll v. Tate, the process in the context of the overall arbiters capable of providing satisfac- Pennsylvania Supreme Court eventu- budget, but by “[c]ourt review.”12 tory dispute resolution for two ally awarded the Court of Common Cases such as Carroll did not become common, however, in part

8. Smith v. Miller, 153 Colo. 35, 40 (1963). For 10. On the “logic of the triad in conflict reso- because many states altered their sys- similar examples, see O’Coin’s, Inc. v. Treasurer of the lution,” see Martin Shapiro, COURTS (Chicago: tems of funding the judicial branch County of Worcester, 362 Mass. 507 (1972); In re Univ. of Chicago Press, 1981). On the fundamen- Salary of Juvenile Director, 87 Wn.2d 232 (Wash. tal risk of interbranch conflict in a system of sepa- so as to minimize the local conflicts 1976). rated powers, see Keith E. Whittington, Yet Another from which the doctrine had 9. This was obviously not true in the relatively Constitutional Crisis?, 43 WM. AND MARY L. REV. few instances in which the state supreme court has 2093 (2002). emerged. Just as Carroll was being itself been the initiator of the inherent judicial 11. Commonwealth ex rel. Carroll v. Tate, 442 Pa. handed down, members of the power claim, such as when the Wisconsin 45, 52 (1971). See also William Scott Ferguson, Supreme Court squared off against the state Judicial Financial Autonomy and Inherent Power, 57 American Bar Association’s Commis- superintendent of public property over who had CORNELL L. REV. 975 (1972); Jeffrey Jackson, Judi- sion on Standards of Judicial Admin- the authority to appoint and remove the court’s cial Independence, Adequate Court Funding, and istration were arguing that janitor. In re Janitor of the Supreme Court, 35 Wis. 410 Inherent Judicial Powers, 52 MD. L. REV. 217 (1993). (1874). 12. Id. at 56, 57. constitutional propriety dictated

www.ajs.org JUDICATURE 15 that the “judiciary will always be sub- Wachtler’s $966.4 million request for the Carroll situation, all state courts ordinate to the legislature on signif- the state judiciary. As legislators and were implicated in the New York suit, icant matters of finance. It is for the the governor negotiated, the chief as the governor and the press were legislature to determine which judge told the press, “as far as I’m quick to point out.19 Constitutional ‘essential services’ the government concerned, that’s an unconstitu- deadlock and informal compromise will provide and to decide the judi- tional budget,” because the governor were the only available options. ciary’s share of the common finan- had not passed on the judiciary’s full cial shortage.”13 The better solution, budget request.17 The legislature Fiscal autonomy in Kansas they urged, was unitary budgeting, eventually compromised with an The recent economic downturn and which would link administration appropriation of $889.3 million for attendant budgetary pressures in and budgeting and allow for more the judicial branch—more than the many of the states have given centralized and efficient manage- governor’s recommendation but sub- renewed significance to these doctri- ment of judicial expenditures. stantially less than the chief judge’s nal and institutional developments. This recommendation was widely request. Recent fiscal relations between the accepted, and many state judiciaries Chief Judge Wachtler reacted to judicial and legislative branches in shifted away from relying on local the legislature’s action by filing a law- Kansas parallel the conditions in funding sources, such as county com- suit in state court claiming that the Philadelphia and New York that led missioners, in favor of consolidated judicial branch was entitled to the to their respective inherent-power budgets approved by state legisla- full amount of its request based on its showdowns. As in Pennsylvania and tures. Pointing to budget conflicts inherent power to compel funds for New York, the Kansas courts have between county governments and its maintenance. Governor Cuomo faced serious financial neglect at the local courts such as the one that gave countered by filing a federal lawsuit hands of their legislative peers. A rise to Carroll, the Pennsylvania seeking to dismiss the chief judge’s government-wide funding crunch in Supreme Court even ordered the suit, thereby preventing any change Kansas in 2002 brought the situation state legislature to take over funding to the legislature’s version of the between the two branches to a head, of the state judiciary, though the state judicial budget. The federal district with fiscal and political stakes com- has taken few steps to comply with court demurred. After substantial parable to those raised in New York. that order, partly out of concern over public and political maneuvering, The Kansas courts, however, adopted the tax implications.14 At the same the chief judge largely relented and a an innovative political strategy that time, state courts were given greater settlement was reached that provided proved more successful than that of spending flexibility through lump- for only a very modest increase, their predecessors in New York— sum budgets rather than detailed, restoring the judicial budget to 1990 but that raises its own constitutional itemized budgets—allowing judges to levels, just days before the state case difficulties. buy their own carpeting without spe- was set for argument.18 Developments in judicial adminis- cific legislative approval. The growth Despite its inglorious end, Wachtler tration and budgeting in Kansas dur- of the inherent judicial power doc- v. Cuomo represents an important ing the past 30 years mirror national trine, however, created a “remote turn in the development of inherent trends, including the adoption of danger” that the judicial system judicial power in the budget context. state funding of the judiciary might “try to secure its appropria- Of course, Wachtler involved amounts through unitary budgeting and the tions by mandamus,” to the likely far exceeding anything previously consolidation of administrative “discredit” and embarrassment of contemplated in such cases. By responsibility for the state’s judicial both branches.15 This potential con- involving nearly 9 percent of the branch in its supreme court. In 1972, sequence suggested to some that the consolidated budget of the entire the state’s voters ratified a constitu- shift to unitary budgeting would ren- state judiciary, the chief judge was no tional amendment making the legis- der the inherent judicial powers doc- longer seeking to fill specific gaps in lature responsible for funding all trine “legally and politically the judiciary’s budget but rather to impotent.”16 provide for the judiciary’s general finances. Perhaps more ominously, 13. Geoffrey C. Hazard, Jr., Martin B. McNa- The New York standoff absent federal intervention, the com- mara, and Irwin F. Sentilles III, Court Finance and Unitary Budgeting, 81 YALE L.J. 1286, 1292 (1972). The “remote danger” was realized bination of unitary budgeting and 14. County of Allegheny v. Commonwealth, 517 Pa. 65 (1987); Pennsylvania State Association of County and the constitutional and institu- the assertion of inherent judicial Commissioners v. Commonwealth, 545 Pa. 324 (1996). tional implications of these develop- power left no place for the disputing 15. Hazard et al., supra n. 13, at 1300. ments were made particularly institutions to go. The constitutional 16. Carl Baar, The Scope and Limits of Court Reform, 5 JUST. SYS. J. 274, 281 (1980). evident in a 1991 funding dispute in equality of the three coordinate 17. Elizabeth Kolbert, Wachtler Says Cuomo Cut Judiciary Funds Unconstitutionally, N.Y. Times, April the state of New York. In submitting branches of New York’s state govern- 11, 1991, at B5. his budget to the legislature, Gover- ment replaced the institutional 18. For an overview of the case, see Howard B. nor Mario Cuomo recommended a inequality present in earlier inherent Glaser, Wachtler v. Cuomo: The Limits of Inherent Power, 14 PACE L. REV. 111, 122-135 (1994). 10 percent cut from Chief Judge Sol judicial power disputes. Unlike even 19. Id. at 130.

16 JUDICATURE Volume 88, Number 1 July-August 2004 Kansas courts. Five years later, the percent during the same period.20) woes and concluded, “The simple legislature exercised some of that Insufficient funding in the regular truth is the [j]udicial [b]ranch can- authority by placing all district courts budget led to a recurrent pattern of not perform its constitutional and under the administrative purview of annual judicial service cutbacks, statutory duties with such a shortfall the state supreme court and shifting salary reductions and furloughs for in funding,” even though the “courts financing of all court system person- nonjudicial employees, and supple- are the last bulwark of freedom as nel to the state. (The state has not mental appropriations from the leg- guaranteed by the Bill of Rights . . . yet assumed all non-salary operating islature to carry the courts through [and a] fully functioning court sys- expenses for the judiciary from the each fiscal year. In fiscal year 2001, tem is essential to the American way counties.) Since 1978, the judicial the legislature’s initial appropria- of life.” Though “there are things the branch has been required to submit tions left a shortfall in the judiciary’s people of Kansas may have to give up its budget to the executive branch “maintenance budget” (the amount in this fiscal crisis, justice cannot and Division of the Budget, which then needed to maintain salaries and must not be one of them.” 23 produces a single state budget that is wages of existing employees) of $1.2 This message also included a renewed call for a change in budget procedures so that the judiciary could submit its budget request The Kansas Court broke new directly to the legislature without ground by invoking its inherent executive intermediation. The chief justice’s justification for this pro- power in order to raise its own posal echoed Chief Judge Wachtler’s arguments in New York revenue rather than to mandate and similarly laid the implicit foun- dation for autonomous judicial appropriations from the action. A direct budget submission was necessary “to safeguard [the legislature. judiciary’s] constitutional position from invasion by the [e]xecutive submitted to the legislature and million; in fiscal year 2002, the short- [b]ranch,” and though the legisla- becomes the basis for legislative fall increased to approximately $2 ture ultimately made the appropria- deliberations. million.21 tions, the chief justice blamed the Judicial complaints of inadequate The Kansas judiciary invoked its executive branch Division of the funding by the state legislature have inherent judicial power in the midst Budget for “many of the funding been common for years. In the years of the budget process for fiscal year problems the [j]udicial [b]ranch leading up to the 2002 confronta- 2003. In spite of the judiciary’s faces each year” by making “drastic tion, the executive routinely reduced expressed concerns about the short- cuts before [the judiciary’s budget the judiciary’s requested budget falls of previous years, the legislature request] is even seen by the [l]egis- when compiling the state budget to cut the 2003 maintenance budget by lature.” Indeed, given the thorough- submit to the legislature, imposing $3.5 million. The state was projecting ness of the judiciary’s own budget hiring freezes on the judiciary in an overall revenue shortfall of $680 review process, which ensures that eight of the ten years prior to 2002. million, rendering any substantial “every request is necessary,” and the (While case filings rose 54.6 percent improvement in the judicial budget lack of “expertise . . . as to judicial between 1987 and 1999, the number unlikely. Instead, legislators urged operations and needs” in the execu- of judges increased only 5.5 percent Chief Justice McFarland to seek tive branch, “all cuts made [were] and nonjudicial employees only 9 “innovative means of securing the arbitrary because there [were] no necessary funding.” On March 8, reasonable cuts left to be made.”24 2002, the chief justice responded by In issuing the “emergency sur- 20. STATE OF THE JUDICIARY: ANNUAL REPORT OF ordering an “emergency surcharge” charge” order, the chief justice did THE CHIEF JUSTICE OF THE KANSAS SUPREME COURT 2 (2002) (www.kscourts.org/2002soj.pdf, last on existing court fees to be paid into not provide elaborate authority for accessed February 8, 2004). an emergency fund separate from her action—the order itself made 21. Chief Justice Kay McFarland, Judicial Branch Budget Issues: Testimony before the Sen- the state treasury and available “only clear that the court relied on its ate Ways and Means Committee, February 7, 2002 for [j]udicial [b]ranch expenditures” inherent power. The review of the (www.kscourts.org/budgetmf.htm, last accessed 22 February 8, 2004). approved by the chief justice. budget situation in the order and the 22. Kansas Judicial Branch Fiscal Year 2003 The chief justice followed form in chief justice’s other statements Emergency Surcharge, 2002 SC 13 (as amended March 22, 2002) (www.kscourts.org/surcharg.htm, justifying this exercise of inherent implicitly established the grounds last accessed February 8, 2004). judicial powers. In an earlier 2002 for meeting the “reasonable neces- 23. Supra n. 20, at 10 (emphasis omitted), 15, 16. State of the Judiciary message, she sity” standard outlined in earlier 24. Id. at 12. reviewed the courts’ recent fiscal inherent judicial power cases. The

www.ajs.org JUDICATURE 17 Kansas Supreme Court had itself order was an “extraordinary event” cial efforts to claim a larger share of asserted more than a century before, that potentially could fall within judi- the state budget and crowd out other “It can hardly be supposed that the cial power, leading four justices to constituencies. While courts have action of the supreme court may be object in a concurring opinion that it been successful in claiming inherent thwarted, impeded or embarrassed is “not one of the inherent powers of judicial power to order (usually by the unwarranted intermeddling the court to levy and collect taxes.”28 local) institutions to make discrete of others without any power in the The Kansas Supreme Court’s expenditures, they were notably supreme court to prevent it.”25 “emergency surcharge” steers a care- unsuccessful in their one effort to ful revenue-raising course. As the trump the state legislative budget Breaking new ground Kansas attorney general noted in his process. In turning to the inherent power doc- opinion supporting the court’s The Kansas court has effectively trine to resolve its budget dispute with power, the surcharge is characterized sought the same outcome—to man- the state executive and legislature, as neither “a docket fee . . . service or date its preferred judicial budget— the Kansas courts followed in the foot- operational charge” nor “a tax . . . but by means that do not impinge on steps of the New York courts from a deposited into the state general the legislature’s ability to satisfy decade before. The Kansas Court, fund,” both of which are circum- favored interests in its budgeting. however, broke new ground by invok- scribed by constitutional and statu- Elected officials clearly risk paying a ing its inherent power in order to tory provisions.29 By withholding the political price when either raising raise its own revenue rather than to collected funds from the state treas- taxes or denying appropriations. The mandate appropriations from the leg- ury, the court appears to want to Kansas court absolved the legislature islature. This unprecedented step cre- avoid running afoul of the state con- of facing either option by raising rev- ated distinctive constitutional and stitutional requirement that “[n]o enue on its own. political repercussions. money shall be drawn from the treas- Chief Justice McFarland was well- Although inherent power had ury except in pursuance of a specific positioned to take the initiative. In been used to compel legislatures to appropriation made by law.”30 Kansas, the justices of the supreme provide judicially needed resources, The Kansas judiciary does have court are chosen by merit selection judges had previously drawn a bright some limited statutory authority to and subject to periodic, non-compet- line between such actions and the set docket fees. However, this would itive retention elections. Since that raising of revenue. The Michigan not seem to include the emergency system was instituted, no justice has Supreme Court, for example, used surcharge, unless the statute is “read ever come close to losing a retention the taxation example to show why in light of the inherent authority election, and McFarland herself had traditional uses of inherent judicial possessed by the supreme court to served on the high court for a quar- power did not create separation-of- take such action as is necessary to ter century. Although the governor’s powers problems: “This broad power maintain its independence as a co- proposed fiscal year 2003 budget had to assess and declare the needs of equal branch of government,” as the fallen short of the judiciary’s request, administering justice does not usurp attorney general suggested.31 The the courts were largely exempt from the fiscal authority of the legislative chief justice herself has only ever the deep cuts imposed by the gover- department. The courts do not levy pointed to the abstract inherent judi- nor and the legislature across the taxes, or appropriate public monies. cial power as the authority for her rest of the state government. Addi- Those things must be done by the actions, not any legal context specific tional funding for the courts was legislative bodies.”26 to Kansas. The Kansas court’s order included in separate budget items In another prominent inherent gives previously uncontemplated that were packaged with several pro- power case, the Pennsylvania meaning to the concept of judicial posed tax increases. More politically Supreme Court had similarly fiscal independence. salient, and far more expensive, asserted that “[c]ontrol of state finances rests with the legislature. . . . Political implications 25. Chicago, Kansas, and Western Railroad Com- The function of the judiciary to The political implications of the pany v. Commissioners of Chase County, 42 Kan. 223, administer justice does not include court’s move are equally ground- 225 (1889). 26. Wayne Circuit Judges v. Wayne County, 383 the power to levy taxes in order to breaking. As Wachtler v. Cuomo Mich. 10, 22 (1969). defray the necessary expenses in con- demonstrated, a state judiciary’s 27. Leahey v. Farrell, 362 Pa. 52, 56 (1949). 28. Missouri v. Jenkins, 495 U.S. 33, 51 (1990); nection therewith. It is the legisla- effort to compel a state legislature to Id. at 74 (Kennedy concurring, quoting Heine v. ture which must supply such fully fund its budget request invites Levee Commissioners, 86 U.S. 655, 661 (1873)). 27 29. Kansas Attorney General Opinion No. funds.” intransigence and puts the two co- 2002-17, 2 (www.kscourts.org/ksag/opinions/ On the other hand, in 1990 a equal branches at loggerheads. The 2002/2002-017.htm, last accessed February 8, majority of the justices of the U.S. very political and financial calculus 2004). 30. KAN. CONST. art. II, § 24. Supreme Court blurred the line in that would lead a legislature to 31. K.S.A. § 60-2001 (2002); Kansas Attorney General Opinion No. 2002-17, 7. The court itself the context of equitable remedies, underfund the courts in the first made no reference to this statute. recognizing that taxation by judicial place would also lead it to resist judi- 32. Supra n. 4.

18 JUDICATURE Volume 88, Number 1 July-August 2004 causes than the needs of the court the court’s innovative use of inher- them. Indeed, the Kansas court’s were featured in the legislative strug- ent judicial powers. The chief justice, turn to judicial user fees is in keep- gle over this tax package. Ultimately, in ordering the surcharge, reported ing with broader tendencies in state the package was rejected by a coali- that “the legislative leadership in court budgeting to emphasize tion of dissident conservative Repub- both houses and on both sides of the court-generated revenues. While licans, who had taken a “no new political aisle . . . showed under- such tendencies have raised con- taxes” pledge, and nearly all the standing of and concern for the cri- cerns on the judicial side that legis- Democrats, who accused the Repub- sis facing the [j]udicial [b]ranch” latures may come to rely on such lican majority of fiscal mismanage- and had “expressed [support] for court fees and give less support to ment and a reliance on regressive tax the [j]udicial [b]ranch to seek inno- the courts from general tax rev- schemes. vative means of securing the neces- enues, it has traditionally been sary funding.”32 understood that the decision to Legislative support In earlier committee hearings on turn to such revenue streams was by It is unsurprising, then, that legisla- the judicial budget, one senator sug- its nature a legislative one.38

Beyond Kansas The inherent judicial power Few courts would be tempted to follow the lead of Judge Wachtler of doctrine was developed to be a New York and run headlong into a political struggle with the legislative defensive weapon to protect and executive branches, though his judges from subversion or actions followed naturally from the historic development of the inherent obstruction by other officials. judicial powers doctrine when com- bined with unitary budgeting. Chief Justice McFarland has found what tors generally responded with enthu- gested, “Why don’t you just sue the might prove to be a more tempting siasm to the Kansas court’s initiative, heck out of us?” The chief justice path, one that is constitutionally since it freed them of any responsi- responded, “Suing won’t get you bolder but politically less hazardous. bility for the political fallout from anything soon.”33 The chair of the Indeed, the “emergency stopgap making an unhappy fiscal choice Senate Ways and Means Committee measure” was so politically successful regarding the judiciary. Far from indicated that the courts would that it was extended into the next fis- challenging the judiciary’s assertion have the first claim to any new rev- cal year. When the Kansas legislature of authority, as Governor Cuomo enue, but noted that if “we don’t again failed to fully fund the court’s had done in New York, the other have it, we can’t put it in.”34 After budget request, the chief justice branches encouraged the court to the court order imposing the emer- reported that the judicial branch move forward and sought to bolster gency surcharge was issued, the “was urged by many legislators to its authority. As noted, the attorney Kansas Senate Judiciary Committee extend the emergency surcharge,” general issued an opinion backing chair exclaimed, “I’m glad to see though the legislature itself did not the courts take some action to meet take steps to authorize by statute or their financial needs,” and declared legislate directly the new court fees.39 33. Quoted in John Hanna, Chief Justice Says that the court had the power to do (The executive and legislature did Tight Funding Will Mean Court Closings, Associated Press Newswires, February 7, 2002. whatever “the court believes it has accept the court’s proposal to allow 34. John Hanna, Panel Provides Money for Courts the power to do.”35 The House the judiciary to submit its budget Now but Only Sympathy after July 1, Associated Press Newswires, February 22, 2002. Speaker simply announced that the requests directly to the legislature.) 35. John Hanna, Supreme Court’s Budget Order legislators’ hands were tied: “Who Kansas was hardly alone in its fiscal Alters Balance of Power in Government, Associated Press Newswires, March 18, 2002. are we going to appeal to? The struggles—state courts elsewhere 36. John Hanna, Supreme Court Goes around Leg- supreme court?”36 And the governor have been facing similar pressures in islature to Solve Budget Problems, Associated Press Newswires, March 14, 2002. gave the chief justice “high marks” recent years. A special district judge 37. John Hanna, Chief Justice Faces Retention after and praised her for taking “bold in Oklahoma used his unofficial web- Dealing with Budget, Associated Press Newswires, 37 September 4, 2002. steps when necessary.” site to publicize the “Kansas ‘sur- 38. David Bresnick, Revenue Generation by the Well-placed policy makers had charge’ solution” and urged his Courts, in Steven W. Hays and Cole Blease Gra- sent clear signals to the chief justice colleagues to follow McFarland’s “fis- ham, Jr., eds., HANDBOOK OF COURT ADMINISTRA- TION AND MANAGEMENT 355-365 (New York: Marcel that they were substantively support- cal leadership,” although the chief Decker, 1993); James W. Douglas and Roger E. Hartley, The Politics of Court Budgeting in the States: ive of her budget stance, and they justice of the Oklahoma Supreme Is Judicial Independence Threatened by the Budgetary backed judicial authority when she Court declined to take such unilat- Process? 63 PUB. ADMIN. REV. 441, 450-451 (2003). 39. 2003 SC 51 (www.kscourts.org/sur- took an initiative that required no charg2004.pdf, last accessed February 8, 2004). politically costly response from continued on page 45

www.ajs.org JUDICATURE 19 Webb, continued from page 19 ers, but the judicial dependence on mental, but it arguably preserves the the legislature for its financing was a respective constitutional responsibil- eral action.40 Budget battles in Illi- reflection of checks and balances ities of the various branches of gov- nois led to an initial standoff, fol- that necessarily impinged on this sep- ernment while maintaining lowed by more extended litigation, aration of powers. legislative accountability for budget- over judicial pay.41 State courts, often The situation in Kansas can be ing. The requirement of a finding spared the budget ax in the past, placed on a scale of possible budget- that the states have actually violated have recently had to deal with signif- ary conflicts between courts and leg- constitutional provisions for main- icant cuts; the events in Kansas could islatures. The gravest fiscal threats to taining a functioning judicial system easily recur.42 judicial independence may come may also set a higher and more pub- The American system of separa- when governors and legislatures use licly sustainable threshold for judi- tion of powers runs the inherent risk budgetary tools to attempt to influ- cial action than does the reasonable of gridlock. While this is a danger, it ence judicial decisions. The use of necessity standard of inherent judi- can also be regarded as a virtue. By inherent judicial powers as a safe- cial power cases such as Carroll. denying any single branch of govern- guard to judicial independence may The boldness of the rhetoric ment the power to act unilaterally, be most justified in such cases, accompanying traditional invocations this constitutional framework which fortunately are rare. A less of inherent judicial power has been requires government officials to win extreme, but more common, threat tempered sub silencio by the modesty the cooperation of others in order to to judicial independence arises from of its practical claims and its effective take effective action. the competition for limited submission to the checks and bal- The inherent judicial power doc- resources. Chronic budget scarcity, ances of the judicial hierarchy and trine was developed to be a defensive such as arose in Kansas, may pose state political institutions. Although weapon to protect judges from sub- less of a threat to judicial independ- relatively small in fiscal terms and version or obstruction by other offi- ence per se than to judicial effec- understandable in a political context, cials. It has not traditionally been tiveness. In such situations, the use the innovation in Kansas of using the used to place the courts on an inde- of inherent judicial powers may be power to independently raise revenue pendent financial footing or to shel- harder to justify. to fund judicial expenses threatens to ter them from the regular budgetary To the extent that such fiscal star- undo those historic checks on judicial process. The rhetoric of judicial inde- vation impinges on positive constitu- power. After the Illinois justices pendence accompanying earlier uses tional obligations that a state ordered the government to pay state of inherent judicial power harkened maintain an effective system of jus- judges the salary increases that had back to a pure theory of separation of tice, school finance litigation may been vetoed by the governor, the state powers, in which each branch was left provide the more appropriate model comptroller remarked, “I wouldn’t free to exercise its own functions for judicial action. When finding say that this is a constitutional crisis. without encroachment from the oth- that states have failed to provide But it is a constitutional clash.”43 Pre- functioning educational systems as cisely by avoiding an institutional

40. Oklahoma Family Law Information required by their constitutions, clash, the “Kansas solution” is all the (www.pryorok.org/legal, accessed July 1, 2003, courts have mandated that legisla- more corrosive of the state’s vital con- post later removed); Jurists Feeling the Pinch of Bud- g get Cuts, Associated Press Newswires, February 2, tures fix the problem but have gen- stitutional balance. 2003. erally avoided specifying the ultimate 41. Daniel C. Vock, High Court to Decide Judicial Pay Raise Issue, Chi. Daily L. Bull., January 15, solution. In that model, courts have 2004. played an important role in holding G. GREGG WEBB 42. Budget battles also gave rise to the highly is a student at Stanford Law School. unusual order by the Nevada Supreme Court that legislators’ feet to the fire to meet the legislature raise taxes under simple-majority their constitutional responsibilities, rule, despite a state constitutional requirement of KEITH E. WHITTINGTON a two-thirds majority. Guinn v. Legislature, 71 P.3d but have left the problem of how is an associate professor in the 1269 (Nev. 2003). best to raise and distribute adequate Department of Politics at Princeton 43. Monica Davey, Justices in Illinois Order University. ([email protected]) Increases in Their Salaries, N.Y. Times, July 29, 2003, revenue to the legislature. Such a at A12. process tends to be slow and incre-