Trends in State Courts Special Focus on Family Law and Court Communications

2016 Trends in State Courts Special Focus on Family Law and Court Communications

Trusted Leadership. Proven Solutions. Better Courts. www.ncsc.org Board of Directors, National Center for State Courts

David Gilbertson, Chief Justice, Deborah J. Daniels, Esq., Krieg Devault, Supreme Court of South Dakota, Chair Indianapolis, Indiana

Patricia W. Griffin, State Court Administrator, Michael G. Heavican, Chief Justice, Supreme Court of Delaware, Vice-Chair Supreme Court of Nebraska

John D. Minton, Jr., Chief Justice, Stephanie E. Hess, Director of Court Services, Supreme Court of Kentucky, Chair-Elect Supreme Court of Ohio

Arthur W. Pepin, Director, Administrative Office Elizabeth P. Hines, Judge, 15th District Court, of New Mexico Courts, Vice Chair-Elect Ann Arbor, Michigan

Mary Campbell McQueen, President, National Center Alphonse F. La Porta, Ambassador (ret.), for State Courts, Williamsburg, Virginia Washington, D.C.

Jerome B. Abrams, District Court Judge, Simon M. Lorne, Esq., Vice Chairman & Chief Hastings, Minnesota Legal Officer, Millennium Management, New York, New York Ronald B. Adrine, Presiding Judge, Municipal Court, Cleveland, Ohio Gary W. Lynch, Judge, Court of Appeals, Springfield, Missouri Elena R. Baca, Esq., Paul Hastings, Los Angeles, California Anne M. Milgram, Distinguished Scholar in Residence, NYU School of Law, New York Stephen H. Baker, Judge, Superior Court, Shasta County, California Maureen O’Connor, Chief Justice, Supreme Court of Ohio S. Jack Balagia, Jr., Esq., Vice President & General Counsel, Exxon Mobil Corp., Irving, Texas Peggy A. Quince, Justice, Supreme Court of Florida Luther J. Battiste III, Esq., Johnson, Toal & Battiste, Columbia, South Carolina Lee F. Satterfield, Chief Judge, District of Columbia Superior Court Matthew L. Benefiel, Court Administrator, 9th Judicial Circuit, Orlando, Florida Clifford M. Sloan, Esq., Skadden, Arps, Slate, Meagher & Flom, Washington, DC David K. Boyd, State Court Administrator, Supreme Court of Iowa Todd A. Smith, Esq., Power Rogers & Smith, Chicago, Illinois Steven D. Canterbury, Administrative Director, West Virginia Supreme Court

B Trends in State Courts 2016 Trusted Leadership. Proven Solutions. Better Courts. 2016 Trends in State Courts Special Focus on Family Law and Court Communications

Edited by:

Carol R. Flango

Deborah W. Smith

Charles F. Campbell

Neal B. Kauder

Trusted Leadership. Proven Solutions. Better Courts. www.ncsc.org i This report is part of the National Center for State Courts’ “Report on Trends in the State Courts” series. Opinions herein are those of the authors, not necessarily of the National Center for State Courts.

Suggested Citation

C. Flango, D. Smith, C. Campbell, and N. Kauder, eds. Trends in State Courts 2016 (Williamsburg, VA: National Center for State Courts, 2016).

ii Trends in State Courts 2016 2016 Review Board

Trends in State Courts 2016 articles have been through a rigorous review process. The members of the 2016 Review Board have contributed countless hours to providing valuable feedback on each submission. The patience and commitment of the review board and authors as they work through this process are greatly appreciated:

James L. Adams, Trial Court Administrator, Karen Kringlie, Esq., Director of Juvenile Court, 1st Judicial District, Oregon (ret.) Admin Unit Two, Fargo, North Dakota

Howard H. Berchtold, Jr., Trial Court Administrator, Hon. Brenda S. Loftin, St. Louis County Circuit Atlantic City, New Jersey Court, Missouri

Hon. Kevin S. Burke, District Judge, Brian J. McLaughlin, Adjunct Faculty, Department Hennepin County, Minnesota of Public Administration, Villanova University

Heather Nann Collins, Court Planner, Norman Meyer, Clerk of Court, U.S. Bankruptcy Connecticut Judicial Branch, Office of the Court, District of New Mexico Executive Director of the Superior Court Operations Division Neil Nesheim, Area Court Administrator, First Judicial District, Juneau, Alaska Janet G. Cornell, Court Administrator, Scottsdale City Court, Arizona (ret.) Rory Perry, Clerk of Court, Supreme Court of Appeals, West Virginia Jude Del Preore, Trial Court Administrator, Superior Court, Burlington Vicinage, Alison H. Sonntag, Chief Deputy Clerk, New Jersey Kitsap County Clerk’s Office, Washington

Elizabeth Evans, Court Operations Manager, Suzanne H. Stinson, Court Administrator, Arizona Supreme Court 26th Judicial District Court, Louisiana

Claudia C. Johnson, Court Collaboration Circuit Robert D. Wessels, County Court Manager, County Rider, Pro Bono Net Criminal Courts at Law, Houston, Texas (ret.)

Peter Kiefer, Deputy Court Administrator, Robert A. Zastany, Executive Director, Maricopa Superior Court, Arizona Circuit Court of Lake County, Illinois

2016 Review Board iii Acknowledgments

Trends in State Courts 2016 was truly a team effort. Without the support and dedication of the court community this publication would not have been possible.

The editors would like to thank VisualResearch, Inc. —Neal B. Kauder, Patrick K. Davis, and Kim Small— for data presentation, design, and printing of Trends.

The Trends in State Courts 2016 editorial staff also recognize LexisNexis for their ongoing provision of online legal resources and research support.

Knowledge and Information Services Staff

Jesse Rutledge, Vice President, External Affairs

Carol R. Flango, Director, KIS

Jarret W. Hann, KIS Analyst

Gregory S. Hurley, Senior KIS Analyst

Blake P. Kavanagh, KIS Analyst

William E. Raftery, KIS Analyst

Deborah W. Smith, Senior KIS Analyst

Cheryl L. Wright, Program Specialist

iv Trends in State Courts 2016 Table of Contents

Preface Public Legal Information as Common Mary Campbell McQueen vii Ground for the Justice Community 61 David Pantzer Keynote Should I Tweet That? Court Communications Recent Sentencing Reform Initiatives to Reduce in the 21st Century 67 Recidivism, Promote Fairness, and Control Costs 1 Hon. Jorge Labarga, Roger K. Warren Hon. Nina Ashenafi Richardson, and Tricia Knox Family Law Issues Alaska Court System Legal Notice Website 75 Maryland’s Family Divisions Alyce Roberts and Stacey Marz Are a Model for Change 11 Barbara A. Babb, Gloria H. Danziger, Overall Court Improvements and Michele H. Hong-Polansky Michigan’s Performance Measures Trends in U.S. Adoptions 2008-2012 17 Improve Public Service 81 Matthew Shuman Jennifer Warner and Laura Hutzel

Parenting Coordination and the Courts 25 Meeting the Challenges of High-Volume Serpil Ergun Civil Dockets 89 Hannah E. M. Lieberman and The Interstate Compact for the Placement Paula Hannaford-Agor of Children and the National Electronic Interstate Compact Enterprise 31 Revitalizing the Jury 97 Diana Graski Victor E. Flango

A Proactive Approach to Self-Assessment Court-Funding Issues Raised in the Juvenile Justice System 39 by Detroit’s Bankruptcy 105 Hon. Mark A. Ingram and Kari L. Harp Diane M. Hartmus and Julie Walters

Opening Courts to the Public Applying Outcomes Management to Client Services in the Lake County Circuit Court 111 Awareness, Adjustment, and Perseverance Robert J. Verborg and Robert Zastany Are the Keys to Communication 45 Hon. Kevin S. Burke Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa 121 A Contrarian View of Two Key Issues Gordon M. Griller in Court Records Privacy and Access 53 Tom Clarke

Table of Contents v vi Trends in State Courts 2016 Preface

President, Mary Campbell McQueen National Center for State Courts

During a hotly contested national election year, many people feel either more connected to or more alienated from their government. Amid all the enthusiasm of televised campaign rallies, the endless analysis of pundits, and claims that this is “the most important election ever,” voters can easily lose sight of one thing: People will have more contact with our nation’s state courts than they ever will with the White House or Capitol Hill. Courts apply the laws passed and enforced by the legislative and executive branches, and courts decide civil disputes that people cannot settle among themselves. State courts directly affect the lives of those who enter them.

Each year, the National Center for State Courts’ Trends in State Courts series examines how courts influence the lives of people and how societal trends affect the work of the courts. This year’s edition, with its focus on family law and communications within the courts and with the public, is no exception.

Criminal sentencing is one example of how court decisions can affect not only the lives of convicted defendants, but also the quality of life of the general public. In this year’s keynote article, Roger Warren, NCSC’s President Emeritus and a retired superior-court judge, traces the development of increasingly punitive criminal sentencing and discusses how the varying impacts of “tough-on-crime” policies affect our society—for example, the relationship between criminal justice policy and recidivism. He then addresses how evidence-based sentencing reforms, at the federal and state levels, are tackling this issue.

Courts also impact children and families, and Trends 2016 includes a number of articles on the vital area of family law. The authors provide both a national and a local perspective on how courts affect families. For example:

the use of parenting coordinators for post-divorce-decree parenting disputes

Maryland’s family divisions and how they meet the legal and non-legal needs of families

court leadership and juvenile justice reform

The rise of the Internet and social media is paralleled with a rising expectation of instant access to information— an expectation that at times conflicts with the deliberative process of the courts. The next section of Trends 2016 chronicles the courts’ efforts to engage the public by listening and responding. For example:

the delicate balance between public access and personal privacy in court records

use of the Internet for posting legal notices in Alaska

courts “telling their story” in the age of social media

Other court improvement topics in this year’s edition include the repurposing of old commercial buildings for court services, the challenge of high-volume civil dockets, and potential issues for court operations in cities facing bankruptcy.

Trends in State Courts 2016 highlights how the courts matter in the lives of citizens, even during the sound and fury of an election year. NCSC hopes that the articles and information in this year’s edition will prove useful as state courts strive to improve the public’s trust in their performance and the administration of justice.

Preface vii “This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure. At long last there is growing support for changing that.”

Editorial Board, Des Moines Register

viii Trends in State Courts 2016 Keynote

Keynote

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs

Roger K. Warren President Emeritus, In 2008, 1 of every 100 adult Americans National Center for State Courts was confined in an American prison or jail, the highest incarceration rate of Faced with increasing crime rates in the mid-1970s, federal any nation in the world and six to nine and state policymakers implemented increasingly punitive and times the incarceration rates of western ineffective criminal-sentencing policies. This article highlights European countries. Thirty-six states recent state and federal sentencing reform initiatives to address and the District of Columbia have higher incarceration rates than the country the consequences and failures of those sentencing policies. with the next highest incarceration rate, Cuba. The U.S. has less than 5 percent of the world population and The History and Consequences almost 25 percent of its prisoners. of Prevailing U.S. Sentencing Policies

Throughout most of the 20th century, American “indeterminate,” where the form and length of penal policy focused on “rehabilitation.” the sentence were not specifically determined The “rehabilitative ideal” referred to using by a judge at the time of sentencing but penal and corrections institutions to restore entrusted to prison and parole authorities an offender to a condition of law-abiding to determine later in light of the offender’s behavior. State and federal sentencing schemes demonstrated degree of rehabilitation while to accomplish that purpose were primarily incarcerated or under supervision.

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 1 U.S. Incarceration Rate, 1960-2014 All Prisons and Jails per 100,000 Population

Source: Federal Bureau of Investigation - Uniform Crime Reports

There were many problems with indeterminate Almost simultaneously with enactment of the sentencing schemes. They led to significant U.S. Sentencing Reform Act in 1984, the country sentencing disparities, whereby offenders convicted was engulfed in the crack-cocaine epidemic. of similar crimes with similar criminal histories Violent crime increased 41 percent between 1983 served substantially different sentences, and and 1991. Through the War on Drugs, the federal corrections officials had little accountability government and over 30 state governments for their broad exercise of discretion. enacted “mandatory minimum” statutes, which prescribed mandatory and lengthy prison sentences More importantly, they did not work. By the mid- for drug and other offenders. Although violent 1970s, it was clear that indeterminate sentencing crime began to fall sharply after 1991, further was ineffective in deterring crime and changing “tough-on-crime” legislation was enacted in offender behavior. Violent crime tripled between 1960 the 1990s—for example, “Three Strikes and and 1975—the fastest growth in America’s violent You’re Out” laws in Washington and California crime rate ever recorded. Furthermore, nothing and long federal and state sentences for certain seemed to change offender behavior. Indeed, habitual offenders, usually 25 years to life in “nothing works” was the apparent conclusion of prison for third-time violent offenders. some of America’s top criminologists. The American public lost confidence in sentencing and correc- The Sentencing Reform Act also required tions policies and in judges and other officials federal prisoners to serve at least 85 percent who administered them. Legislators responded of their sentences. The 1994 U.S. Crime with more punitive, “tough-on-crime” alternatives. Bill appropriated $850 million for prison construction in states that enacted similar In the mid-1970s, American penal policy shifted “truth-in-sentencing” provisions, which

1 Unless otherwise noted, toward a focus on “just deserts” and “limited happened in 35 states and the District of Columbia. statistics in this article regarding crime rates, retributivism.” Many states, and in 1984 the incarceration and federal government, adopted “determinate” The impact of these policies on corrections imprisonment rates, and corrections sentencing systems, which establish a specific populations, corrections costs, and offenders of populations and costs are based on published sentence, sentence range, or sentence alternative color, in particular, was dramatic. From 1978 data from the U.S. Department of Justice, for each crime in light of the defendant’s criminal to 2008, the number of prisoners in state and Pew Center on the States, history. These sentences are determined either federal prisons increased from 294,000 to and International Center for Prison Studies. by statute or through “guidelines” established almost 1.4 million.1 by a sentencing commission.

2 Trends in State Courts 2016 Keynote

U.S. Violent Crime Rate, 1960-2014 per 100,000 Population

Source: Federal Bureau of Investigation - Uniform Crime Reports

From 1980 to 2013, federal relevant scientific research prison spending increased “Given the small concluded: “The increase in almost sevenfold, and state crime prevention incarceration may have caused a corrections costs quadrupled, effects of long prison decrease in crime, but the becoming the fastest growing sentences and magnitude of the reduction is item in state budgets (after the possibly high highly uncertain and the results of Medicaid). Between 1983 and financial, social, most studies suggest it was unlikely 2008, 88 percent of new state and human costs to have been large…. Given the spending for corrections went of incarceration, small crime prevention effects of to prisons, rather than parole federal and state long prison sentences and the or probation. By 2008, prisons policy makers possibly high financial, social, and accounted for almost 90 percent should revise human costs of incarceration, of state corrections costs, while current criminal federal and state policy makers 70 percent of offenders were on justice policies should revise current criminal either probation or parole. The to significantly justice policies to significantly average daily cost to manage an reduce the rate reduce the rate of incarceration offender on probation or parole of incarceration in in the United States.”2 2 J. Travis, B. Western, and S. Redburn (eds.), The is about $3 or $7, respectively; the United States.” Growth of Incarceration in the United States: the daily cost of maintaining an National Research Council of the There is also no evidence that Exploring Causes and Consequences (Wash- offender in state prison is $79. National Academy of Sciences, 2014 our prevailing crime policies ington, DC: National Re- lowered recidivism rates, and search Council, National Academies Press, 2014). Like the sentencing and corrections policies in some evidence that they resulted in higher place during the first three-fourths of the 20th recidivism. U.S. Bureau of Justice Statistics century, the most important question about the (BJS) data, for example, indicates that 64 policies inaugurated in the late 1970s is whether percent of felony defendants arrested in 2006 had they actually “worked,” i.e., were effective in at least one prior felony arrest, up from 55 percent reducing crime and recidivism. Much has of felony defendants in 1992, and that 43 percent been written about the impact of our “mass had at least one prior felony conviction, incarceration” policies on U.S. crime rates, which up from 36 percent in 1992. The National continued to rise until the early 1990s and have Research Council also reviewed the scientific been consistently declining over the past 15 years. research on the “criminogenic” effects of The most recent and exhaustive review of the imprisonment and concluded that current

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 3 evidence “consistently points either to no effect support that conclusion. The average re-arrest or to an increase rather than a decrease in rate of state prisoners released in 1994 was recidivism. Thus, there is no credible evidence 5 percent higher than the re-arrest rates of of a specific deterrent effect of the experience prisoners released in 1983, when the incarcer- of incarceration.” Data from BJS appear to ation rate was roughly half what it was in 1994.

Recent State Sentencing Reform Initiatives

Today, there is broad bipartisan support, dating based sentencing back to at least 2006, for reform of both state practices to reduce and federal sentencing practices. Reform recidivism are efforts began in the states and have proceeded referred to as along three different but related paths: first, “evidence-based establishing sentencing practices, especially sentencing” (EBS). for offenders not sentenced to prison, that With initial financial support from the State are more effective in changing behavior Justice Institute and others, and subsequently and reducing recidivism; second, seeking largely through participation in Pew Charitable to change state sentencing policies through Trusts’ Public Safety Performance Project (Pew), legislation and administrative rulemaking; and and under the direction of the CCJ/COSCA Joint third, relying significantly on court orders and Standing Committee on Criminal Justice, NCSC voter initiatives, as evidenced in California. has published extensively on the topic and worked directly with judges and court leaders in over Evidence-Based Sentencing 30 states to implement EBS practices. In most states, EBS reforms have focused on improving With the support of the Conference of Chief outcomes for offenders on community supervision Justices (CCJ) and Conference of State Court (probation) by encouraging judges to focus Administrators (COSCA), the National Center supervision and interventions on medium- and for State Courts (NCSC) launched a sentencing high-risk offenders (not on low-risk offenders) reform project in 2006. Building on the success and on the individual offender’s specific risk of drug courts and other “problem-solving” factors, along with increased use of programs courts, state court leaders concluded that shown to be effective in reducing recidivism, their main sentencing reform objective was incentives, and swift, certain, and proportionate “to promote public safety and reduce recidivism sanctions in responding to the behaviors of through expanded use of evidence-based offenders under supervision. practices, using programs that work and offender risk and needs assessment (RNA) tools.” …improved offender outcomes In 2007 CCJ and COSCA adopted a formal and reductions in recidivism can resolution supporting “state efforts to adopt be achieved through an informed, sentencing and corrections policies and practical, and collaborative programs based on the best research evidence approach to the implementation of practices shown to be effective in reducing of evidence-based sentencing… recidivism.” In the state courts, these research-

4 Trends in State Courts 2016 Keynote

In 2007, for example, the Arizona Supreme Court established a Center for Evidence Based Sentencing. The center oversaw incorporation of information from the state’s validated RNA instrument into all Arizona felony presentence reports. That, and related evidence-based reforms, reduced the new felony conviction rate among Arizona felony probationers by 38 percent over the next five years. Judicial leaders in Idaho, Indiana, and West Virginia have also directed that RNA information be included in felony presentence reports, and in at least four other states (Colorado, Kentucky, Tennessee, and Wisconsin), RNA driving the state’s prison population growth and information has been incorporated into presen- related criminal justice spending, and then develop tence reports statewide at the initiative of the and implement alternative policies that generate legislature or department of corrections. Local savings and increase public safety. The resulting trial courts in many other states have also savings are then reinvested in evidence-based incorporated RNA information into their felony- strategies that can more effectively decrease sentencing proceedings. A federally funded pilot crime and hold offenders accountable. project in California to assess the impact of the use of RNA information by judges at sentencing Texas is often credited with implementing and in probation violation proceedings concluded: the first significant JRI. In 2007 Texas was “Taken as a whole, this study’s findings suggest facing a $2 billion prison expansion while more that improved offender outcomes and reductions in than 2,000 offenders awaited placement for recidivism can be achieved through an informed, substance abuse or mental health treatment. practical, and collaborative approach to the The conservative Republican chair of the implementation of EBP, including both the use of House Corrections Committee teamed with the evidence-based presentence investigation and more liberal Democratic chair of the Senate supplemental/violation reports and effective Criminal Justice Committee to secure legis- 3 3 T. Agnese and S. Curran, supervision and case management practices.” lative approval of a reform package that saved “The California Risk Texas most of the projected $2 billion and Assessment Pilot Project: The Use of Risk Justice Reinvestment reinvested over $241 million of the avoided costs and Needs Assessment Information in Adult in an array of evidence-based strategies to reduce Felony Probation Sentencing and Violation Most state sentencing policy reforms over the past recidivism, including drug courts; other substance Proceedings,” report ten years have been spearheaded by the Justice submitted to the State abuse, mental health, and residential treatment Justice Institute and Reinvestment Initiative (JRI) sponsored by Pew and programs; and incentives to promote compliance National Institute of Corrections the U.S. Department of Justice’s Bureau of Justice with terms of supervision and swift and graduated for the Judicial Council of California, Administration. JRI is a data-driven approach to sanctions to address technical violations of December 2015, p. 9. improving public safety under which a national the conditions of supervision (violations not technical assistance provider helps a bipartisan, based on absconding or commission of a new interbranch state work group to analyze the state’s offense). The crime rate in Texas subsequently criminal justice data to understand the factors fell to its lowest level since the early 1970s.

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 5 Since 2007, more than 25 states have implemented Although it is far too early for any definitive bipartisan JRI projects. Although JRI often national evaluation of the success of JRI, a national generates many prison- and parole-related reforms assessment by the Urban Institute in 2014 of eight as well, typical sentencing-related reforms include: states in which JRI policies had been legislated in 2010 or later, and actually in effect for at reducing the penalties for drug and property least one year, found that prison populations crimes by reclassifying offenses (including had been reduced in those states since the from felony to misdemeanor) and eliminating start of JRI. Total projected savings resulting or reducing mandatory minimum and other from averted prison operating and construction sentence enhancement provisions costs amounted to as much as $4.6 billion, of which $165.8 million had been reinvested. expanding presumptive probation provisions for lower-level drug and property offenses Court Orders and Voter Initiatives (California) expanding availability of presentence risk/needs and other assessments In August 2009, a three-judge federal court found that due to overcrowding in California’s prison revising definitions of drug-free school zones system, the provision of medical and mental health limiting revocations of probation for services to state prison inmates was severely technical violations inadequate and constituted cruel and unusual punishment. California was ordered to reduce implementing probation reform, including the prison population to 137.5 percent of design shortening lengthy terms of probation, using capacity, a reduction of about 40,000 inmates. performance-incentive funding, and expanding use of RNAs, earned discharge, graduated In October 2009, while the state’s appeal of the sanctions and rewards, administrative trial court’s order to the U.S. Supreme Court was sanctions, and other evidence-based practices pending, the state enacted a program to reduce expanding availability of intermediate probation revocations to prison by providing fiscal sanctions (e.g., electronic monitoring) and incentives to county probation departments to evidence-based community interventions, reduce revocations to prison through the use of including cognitive behavioral interventions evidence-based supervision services, including RNA and expansion of the Hawaii Opportunity tools, offender incentives, and swift, certain, and Probation with Enforcement (HOPE) proportionate sanctions. By 2015, according to the program and drug, behavioral health, California Judicial Council, the program had and other specialty courts decreased probation revocation rates by 29 percent (compared to the 2006-08 base years), resulting in statewide savings of $970 million, 60 percent of Total projected savings resulting which was reallocated to county probation depart- from averted prison operating ments to further implement the evidence-based and construction costs amounted supervision practices that produced the savings. to as much as $4.6 billion, of which $165.8 million had been reinvested. After the Supreme Court upheld the trial court’s Urban Institute, 2014 - study of eight states implementing JRI order in 2011, the legislature enacted “Public Safety (Justice Reinvestment Initiatives) Realignment,” further reducing the state prison

6 Trends in State Courts 2016 Keynote

population by transferring responsibility for To obtain the potential reductions, inmates had incarcerating and supervising certain lower-level to file individual petitions with a federal judge. felons and parolees from state to local Judges reportedly granted about 75 percent of the government. In November 2012, California petitions, and 6,000 federal inmates obtained early voters approved Proposition 36, which revised release in November 2015—the largest one-time California’s tough three-strikes law and allowed release of federal prisoners in history. The many inmates sentenced for nonserious and commission estimated that an additional 8,550 nonviolent offenses to petition the courts for inmates would be eligible for early release over the shorter prison terms. next year. Eventually, almost half of all imprisoned federal drug offenders may qualify for early release. Despite the three actions described above, in More recently, the Justice Department has also October 2014 the state was still almost 3,000 inmates instructed its prosecutors not to charge most above the court-mandated target. In November low-level, nonviolent drug offenders with 2014, California voters passed Proposition 47, offenses carrying mandatory sentences. which converted many lower-level drug and property offenses from felonies to misdemeanors A further proposed reform, the Smarter Sentencing and, like reinvestment legislation in other states, Act, introduced in both the House and Senate in specified that the resulting savings be directed 2014, would allow the Fair Sentencing Act of 2010 toward mental health and drug abuse treatment, to be applied retroactively and could reduce many anti-truancy efforts, and victim services. According federal mandatory minimum sentencing provisions. to the Public Policy Institute of California, by January 2015 California’s prisons dropped below Current federal-sentencing-reform proposals 137.5 percent of design capacity for the first time have been inspired by the successful state in recent memory. California’s total prison reforms described earlier. As recently as population had declined 45 percent since its March 2015, for example, Senate Judiciary peak in 2006, resulting in California’s lowest Chairman Chuck Grassley (R-IA) had been incarceration rate since the mid-1990s, while publicly committed to kill any federal legis- crime rates were at levels last seen in the 1960s. lation softening federal mandatory minimum sentences. Yet, barely six months later on Recent Federal Sentencing Reform Initiatives October 1, he joined half a dozen of the Senate’s most powerful Democrats and The initial federal sentencing reforms resulted Republicans in announcing new legislation, from recommendations and actions of the U.S. the Sentencing Reform and Corrections Act Sentencing Commission to reduce federal crack of 2015, that does exactly that, calling it “the v. powder cocaine sentencing disparities and biggest criminal-justice reform in a generation.” culminated in enactment of the Fair Sentencing In an October 2015 interview with Rolling Stone Act of 2010, which prospectively reduced the magazine, he explained that it was learning cocaine-sentencing disparity from 100:1 to 18:1. about the state reforms that changed his mind: In 2014 the commission also reduced federal “I’ve learned from what some states have done, sentencing guidelines for most drug-trafficking changes could be made and money could be offenses, potentially shaving an average of about saved and not hurt society with people that two years off sentences averaging over ten years. do harm coming from behind bars.”

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 7 Another key source of support for the “This nation’s war on drugs focused on criminal Sentencing Reform and Corrections Act of punishment instead of treatment has been a 2015 and other proposed federal sentencing complete failure. At long last there is growing reforms, and one that traces back to the bipar- support for changing that. Iowa’s senior tisan support for the Texas JRI in 2007, has senator should not stand in the way.” been the rapidly growing support for reform among many of the country’s most prominent In October 2015, the Sentencing and Corrections thought leaders on the political right. In Reform Act passed out of the Senate Judiciary December 2010, the Texas Public Policy Committee on a bipartisan vote of 15 to 5. Foundation launched its “Right On Crime” In addition to its revisions of existing mandatory initiative, a “one-stop source for conservative minimum sentencing provisions, it also provides ideas on criminal justice,” supported by many retroactive effect to the Fair Sentencing Act, contains national leaders of the conservative movement, compassionate-release provisions for older inmates, including Newt Gingrich, Grover Norquist, Bill expands earned-time credits to allow some offenders Bennett, Ralph Reed, and Rick Perry. to earn extra credits for participating in recidivism reduction programs, and establishes a demonstration The Right on Crime website explains: project to pilot promising reentry programs.

Conservatives The pending bill that most dramatically are known for reflects the influence of state sentencing being tough on reforms is the bipartisan Safe Justice Act crime, but we must also be tough on criminal bill introduced in the House in 2015. The bill justice spending. That means demanding more restricts and reduces application of many cost-effective approaches that enhance public mandatory minimum sentencing provisions safety. A clear example is our reliance on prisons, in drug and weapons cases and makes those which serve a critical role by incapacitating changes, as well as the provisions of the dangerous offenders and career criminals but Fair Sentencing Act, retroactive. Like the are not the solution for every type of offender. Sentencing and Corrections Reform Act, the And in some instances, they have the unintended bill also contains compassionate-release and consequence of hardening nonviolent, low-risk earned-time-credit provisions for offenders offenders—making them a greater risk to the participating in recidivism reduction programs. public than when they entered. The bill also contains many other provisions modeled on similar provisions contained in Right on Crime and other conservative advocacy state-sentencing-reform legislation: groups consistently supported the state JRI reforms expanding use of probation for described above and more recently have been first-time, nonviolent offenders joined by the Koch brothers, religious leaders, and other conservative advocacy groups to promote expanding earned-time credit for federal sentencing reform as well. Indeed, compliance with terms of supervision between March and October 2015, 130 faith leaders requiring development of graduated from Senator Grassley’s home state of Iowa blasted sanctions grids for use in probation current federal sentencing policy, while the and post-prison supervision editorial board of the Des Moines Register opined,

8 Trends in State Courts 2016 Keynote

placing a 60-day cap on confinement for technical violations

encouraging development of drug courts and other problem-solving courts

establishing a performance-incentive-funding pilot program to reduce revocations to prison

requiring half-way house contracts to contain recidivism-reduction performance provisions

requiring the inclusion of fiscal impact statements in sentencing bills and that federal agencies report on Hispanics are incarcerated in the United States federal-offender-recidivism rates at a rate 84 percent higher than whites, and African-Americans at a rate five times that of whites. Conclusion If U.S. state and federal imprisonment rates remain what they were in 2001, 1 in 3 black males born that year, and 1 in 6 Latino males, will go to prison As a result of recent sentencing and corrections at some point during their lifetimes compared to reforms, 2014 was the sixth consecutive year 1 in 17 white males. A similar pattern exists among of reduction in the nation’s imprisonment rate, women, although women are about six times less while both violent and property crime rates likely to go to prison. simultaneously declined for the fifth time in seven years and, at the end of 2014, were about 2010 Census Data 25 percent below their 2007 levels.

Although the indeterminate sentencing prior conviction, and 48 percent had more than policies that prevailed up to the mid-1970s and one prior conviction. It is fair to say that most determinate sentencing policies that have been felony crime is committed by offenders who in place until recently differ in many respects, have been through the criminal justice system they share one feature in common: both proved before, and the obvious question is why our relatively ineffective in reducing crime and sentencing policies and practices have been so recidivism. If the belief in the mid-1970s that ineffective in changing offender behavior and nothing works to change offender behavior led reducing recidivism. The question is especially to the sentencing policies that have prevailed pertinent today because, unlike 40 years ago, until recently, we have now learned that those there is a solid body of scientific research prevailing policies did not work either. BJS data supporting EBS practices that reduce recidivism. indicates that 77 percent of felony defendants The most promising feature of recent reform in 2006 had been previously arrested, and 35 initiatives may well be the extent to which the percent had been previously arrested ten or state initiatives and some recent federal initia- more times. Sixty-one percent had at least one tives incorporate those EBS practices.

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 9 “Maryland has made great progress since the creation of the family divisions, particularly with regard to its holistic approach to family law cases.”

Barbara A. Babb, Gloria H. Danziger, and Michele H. Hong-Polansky

10 Trends in State Courts 2016 Family Law

Family Law

Maryland’s Family Divisions Are a Model for Change

University of Baltimore Barbara A. Babb School of Law, Gloria H. Danziger Sayra and Neil Meyerhoff Center for Families, Michele H. Hong-Polansky Children and the Courts

Adoption of Rule 16-204 has changed how Maryland professionals handle family law cases by creating family divisions and providing mechanisms for case coordination and service referrals. Judges, lawyers, and personnel approach cases and decision making more holistically, focusing on and effectively addressing the legal and non-legal needs of Maryland’s families.

In fiscal year 2014, 43 percent of all cases filed This system created tremendous hardship for in Maryland’s trial court of general jurisdiction families (particularly low-income families, many (the circuit court) were family law cases of whom were self-represented litigants) and (Court Operations Department, 2014: CC-5). resulted in fragmented service delivery and Historically, Maryland courts, like many inconsistent decision making. states’ family justice systems, lacked a uniform structure to consolidate family law issues for Through the leadership and dedication of former an individual family. As a result, families often Chief Judge Robert M. Bell, in 1998 the judges of the faced multiple hearings before different judges Maryland Court of Appeals signed Maryland Rule in different courtrooms to address a variety 16-204 (see Babb, 2013: 1126). This rule created of issues, such as divorce, domestic violence, family divisions in the circuit courts of Maryland’s delinquency, and child abuse/neglect. five largest jurisdictions and transformed how Maryland courts handle family law cases.

Maryland’s Family Divisions Are a Model for Change 11 Background of Maryland Rule 16-204 Performance Standards and Measures for Maryland’s Family Divisions (Performance Standards, 2002: 4). Maryland Rule 16-204 grants the family divisions comprehensive subject-matter jurisdiction over The Performance Standards begin with a the following types of cases: “divorce, annulment, powerful statement that describes the mission and property division; custody and visitation; of the family divisions to (p. 6): alimony, spousal support, and child support; provide a fair and efficient forum paternity, adoption, termination of parental rights, and emancipation; criminal nonsupport and resolve family legal matters in a problem- desertion; name changes; guardianship of minors solving manner and disabled persons; involuntary admission to improve the lives of families and children state facilities and emergency evaluations; family who appear before the court legal medical issues; domestic violence actions; juvenile causes, including delinquency and make available appropriate services dependency; and civil and criminal contempt” for the families who need them (Babb, 2013: 1127, citing Maryland Rule 16-204). provide an environment that supports judges, court staff, and attorneys to respond effectively The family divisions receive funding to provide to legal and nonlegal issues family support services, such as mediation in custody and visitation matters, parenting seminars, The Performance Standards also specify system and services to assist self-represented litigants. values and intended outcomes that family divisions Circuit courts without family divisions also receive should promote to (p. 6): funds (subject to availability) for family support services. All circuit courts, including the family preserve the rule of law divisions, are required to appoint a family support stabilize families in transition services coordinator. The coordinator’s role is to compile, maintain, and provide lists of available provide forums for prompt conflict resolution public and private family support services; coordinate promote co-parenting relationships and monitor referrals; and report on the need for additional family support services or the modifi- foster parents as the primary family cation of existing services (Maryland Rule 16-204). decision makers

maximize ADR methods Performance Standards and Measures for Maryland’s Family Divisions provide safety and protection

preserve family relationships where possible One of the key outcomes arising from the creation of the family divisions was the crafting of a tool support linkages between resources and needs to assess the effectiveness of the courts’ work. increase access to the justice system An Ad Hoc Committee on the Implementation of the Family Divisions met for two years to use judicial time efficiently formulate a mission statement, system values, develop a familiarity with each family and outcome evaluation measures. That work resulted in the publication in 2002 of increase cultural competency

12 Trends in State Courts 2016 Family Law

Former Chief Judge Bell has stressed that the Additional highlights include: Performance Standards “represent the high increased and improved services for families, standards to which we hold ourselves in serving including assistance for self-represented Maryland’s families, and the standard to which we litigants, parenting classes, custody evaluations, expect others to hold us” (p. 4). The Performance referrals for counseling and anger management, Standards, designed around the Bureau of Justice domestic violence advocacy, mediation, family Assistance’s Trial Court Performance Standards, and individual counseling, and substance abuse include five focus areas: 1) access to justice; assessments and referrals for treatment 2) expedition and timeliness; 3) equality, fairness, and integrity; 4) accountability and independence; websites to help litigants access information and 5) public trust and confidence. Each focus area about court processes, programs, and services includes standards, commentary, implementation greater supports for Spanish-speaking litigants, issues, recommendations, and tools of measurement including domestic relations forms translated that should guide the work of the family divisions. into Spanish and made available online

Family Division Accomplishments a Domestic Violence Central Depository database giving courts and law enforcement To commemorate the 15th anniversary of the real-time access to protective and peace creation of the family divisions, the University of orders issued anywhere in the state Baltimore School of Law’s Sayra and Neil Meyerhoff court-referred mediation services Center for Families, Children and the Courts (CFCC) for low-income individuals partnered with the Maryland Department of Family Administration, Administrative Office of the Courts community-conferencing diversion program (AOC), to host a symposium on June 1, 2015, for juvenile offenders to examine Maryland’s family justice system. standards and procedures for court-appointed As part of the symposium-planning process, parent coordinators (Kratovil-Lavelle, 2013: 3-9) CFCC and the AOC looked at the progress made since the passage of Rule 16-204. Judges and Magistrates’ Survey

Family support services and the guidance In preparation for the symposium, the AOC and provided by family support services coordinators CFCC began a reflective journey on the first 15 years have fostered Maryland’s significant progress of the family divisions by surveying all Maryland in family court reform. For example, over the Circuit Court judges and magistrates. The survey last 17 years, courts in many counties have was designed to identify judicial attitudes and court adopted differentiated case management practices regarding the needs of families and plans that coordinate and consolidate all children in family court. Of the 200 judges and legal matters involving the same family and magistrates who received the surveys, 88 responded that increase efficiency and effectiveness in the (44 percent), 64 percent of whom were judges, and judicial process. This allows courts to resolve a 65 percent of whom served in the family divisions or family’s legal problems with fewer appearances on the family law docket at the time of the survey. (Kratovil-Lavelle, 2013: 2).

Maryland’s Family Divisions Are a Model for Change 13 Judicial Survey Results— Currently Serving in the Family Division Who Responded? or Family Docket 64% 65%

36% 34%

1% aia

There were some surprising responses Given the high cost of litigation and the huge to survey questions. For example, only numbers of self-represented litigants in family 31 percent of respondents were familiar with court, it is not surprising that 84 percent of judges the Performance Standards, only 5 percent of and magistrates “strongly agreed” that the role of whom referred to them several times, and only the family court judge is to “promote opportunities 3 percent of whom consulted them regularly. for parties to resolve disputes outside court.” On the other hand, 60 percent of the judges and magistrates The fact that so few judges and magistrates are who refer parties to mediation do not use a screening using the Performance Standards is troubling. One tool to identify family violence issues before making recommendation emerging from the June symposium referrals, which should be a prerequisite before is that the AOC should train and ensure that family judges refer families to mediation. division judges and magistrates are familiar with the Performance Standards and integrate them When judges and magistrates were asked whether into the day-to-day operation of the court. they refer parties to specific services, the top three services were parent education, mediation, and The survey also asked, “Which, supervised visitation. The referral if any, of the following Family …courts in many made least often was to programs Division goals has your court or counties have adopted for high-conflict parents. Family Division worked on in differentiated case the past five years?” The leading management plans The most important needs goal was “maximizing the use that coordinate and of parties in family court, of ADR (alternative dispute consolidate all legal as identified by judges and resolution),” at 78 percent of matters involving the magistrates, were the following: respondents. The next highest same family and that 1) access to mental health were providing forums for increase efficiency services and drug and alcohol prompt conflict resolution and effectiveness in treatment, 2) alternative dispute (76 percent) and promoting the judicial process. resolution, 3) prompt and fair co-parenting relationships resolution of parties’ disputes, (76 percent). Lowest on the list and 4) legal representation of goals were fostering parents as primary or a clear understanding of the process for family decision makers (56 percent), self-represented litigants. When asked what supporting linkages between resource needs they saw as the appropriate role of the family and availability (48 percent), and using judicial court in meeting these needs, the judges’ and time efficiently by providing comprehensive magistrates’ responses included 1) refer to information to judges and masters (44 percent). services, 2) provide opportunities for ADR,

14 Trends in State Courts 2016 Family Law

Referral Rates of Courts to Various Types of Services 99% 95% 95% 87% 83% 82% 75% 74% 63% 57% 42%

a iai i y ll mi ll al al ai am ili ai iiai alai am il i i i ia il a

3) only have judges and magistrates who want Moving forward, judges and magistrates must to hear family law cases and know the law, continue to hold themselves to the high standards and 4) not to be “social workers” and “problem set out in the Performance Standards. As courts solvers.” Finally, respondents were asked to evaluate cases individually, they require increased indicate three actions that the courts could funding to expand the array of available and take to improve the process for family law necessary services (particularly for substance use cases. They responded provide more funding treatment and mental health concerns) to address for services, allow one judge to hear all of the the needs of children and families effectively. family legal issues related to one family, and As the number of self-represented litigants increases increase the number of pro bono attorneys. and as Maryland’s demographics change, self-represented litigants and non-English Survey responses overall indicate that judges and speakers need additional support. Finally, all magistrates in Maryland value supporting and family justice system professionals must commit strengthening the family unit. Referrals to community to ensure that Maryland’s families and children services and screening procedures to ensure that receive efficient, effective, and responsible service. appropriate services are put in place enable courts to offer useful tools to parties. All judges and magis- References trates in Maryland’s family divisions, however, must familiarize themselves with the Performance Babb, B. A. (2013). “Maryland’s Family Divisions: Standards and work to apply them routinely (p. 4). Sensible Justice for Families and Children,” Courts must implement the standards and also must 72 Maryland Law Review 1124. assess families on a case-by-case basis to ensure that the recommended services are appropriate for Babb, B. A. and Kuhn, J. A. (2002). Performance each family. Acknowledgment and application of Standards and Measures for Maryland’s Family these standards can provide consistent and effective Divisions. Annapolis: Maryland Judiciary. results for families and children across Maryland. Court Operations Department, Administrative Conclusion Office of the Courts (2014). Maryland Judiciary Annual Statistical Abstract Fiscal Year 2014. Maryland has made great progress since the creation Annapolis, MD: Maryland Judiciary. of the family divisions, particularly with regard to its holistic approach to family law cases. Rule 16-204 Kratovil-Lavelle, C. (2013) “Highlights from Fifteen arms courts with many of the tools needed to give Years of Family Court Reform Services in Maryland.” families and children the help they need to improve Report, Department of Family Administration, their lives. Significant work remains, however. Administrative Office of the Courts, Annapolis.

Maryland’s Family Divisions Are a Model for Change 15 “For the fourth consecutive year, the Supreme Court opened trial courts across the state to cameras to mark National Adoption Day in November. On that day, 135 children in 44 courts went home with a ‘forever family.’”

Indiana Chief Justice Loretta H. Rush

16 Trends in State Courts 2016 Family Law

Family Law

Trends in U.S. Adoptions: 2008-2012

Senior Technical Specialist, Matthew Shuman ICF International, Fairfax, Virginia

The total number of children adopted in the United States decreased from 2008 to 2012, with a particularly steep decrease in the number of intercountry adoptions. These changes may affect the numbers and types of cases that appear in state and other courts.

Although there is considerable data about the their communities, establish characteristics of adoptive families, children who are efficient protocols, determine …by analyzing state- adopted, the reasons for adoption, and the many strategies for increasing level [adoption] data, other factors and circumstances of adoption, there is placements, plan for services, stakeholders can a scarcity of national, regularly collected data on the determine future funding and compare adoption total number of adoptions. There is no single source personnel needs, and cultivate rates overall and by for the total number of children adopted in the policies and practices that meet source to determine United States, and there is currently no straight- current and emerging needs. if states have fewer forward way of determining the total number of Additionally, by analyzing or more adoptions adoptions, even when multiple data sources are used. state-level data, stakeholders than expected based can compare adoption rates on their populations. Policymakers, government agencies, court overall and by source to personnel, social workers, adoption organizations, determine if states have fewer and others need information on total adoptions, or more adoptions than expected based on as well as the types of adoption, in the United their populations. This information can serve States to help guide adoption practice and policy. as a starting point for asking questions about These data can help the courts, government the policies, practices, and circumstances agencies, and other organizations develop a in each state. better understanding of the demographics of

Trends in U.S. Adoptions: 2008-2012 17 This article provides data on the total number Total Number of Adoptions of adoptions in the United States (the 50 states in the United States plus the District of Columbia and Puerto Rico),

as well as the numbers of public, intercountry, and other adoptions, from 2008 to 2012, the most recent year for which complete data are available. It also includes data from 2001 and 2005, which were collected in two previous iterations of this study, to show trends beyond five years. Adoption Rate per 100,000 Results U.S. Population Over Age 18 In 2012 there were 119,514 children adopted, which is a 14 percent decrease (20,133) from the 139,647 children adopted in 2008. There was a 15 percent decrease (20,520) in the number of children

adopted from 2001 (140,034) to 2012, but there was an increase in the middle of that period, as evidenced by the 146,172 adoptions in 2005. Intercountry Adoptions. In 2012 U.S. citizens The reduction in the number of adoptions occurred adopted 8,650 children from foreign countries even as the U.S. population over age 18 (i.e., the (7 percent of all adoptions in the United States pool of individuals who may be eligible to adopt) that year). The number of intercountry adoptions increased. The adoption rate per 100,000 adults began to decline in 2005 and continued to was 65 in 2001, 65 in 2005, 60 in 2008, and 49 in decline every year until 2013 (the most recently 2012. The adoption rate decreased 18 percent available data). The number of intercountry from 2008 to 2012 and decreased 24 percent from adoptions decreased by 56 percent (10,957) 2001 to 2012, which is greater than the 15 percent from 2001 to 2012 and by 50 percent (8,766) from decline in the total number of adoptions. 2008 to 2012. The percentage of all adoptions that were intercountry also declined considerably Public-Agency Adoptions. Public-agency during this time. Fourteen percent of all adoptions adoptions constituted 44 percent (52,042) of were intercountry in 2001. This decreased to all adoptions in 2012, 40 percent (55,264) of 12 percent by 2008 and 7 percent in 2012. all adoptions in 2008, and 36 percent (49,945) of all adoptions in 2001. Between 2001 and 2012, Intercountry Adoptions public adoptions increased 4 percent (2,097), 2001-2103 with the peak occurring in 2009 (57,187). Between 2008 and 2012, the number of public adoptions decreased 6 percent (3,222), but the percentage increased from 40 percent in 2008

to 44 percent in 2012.

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Total Adoptions Adoption Rates per 100,000 by State 2008 and 2012 Adults by State 2008 and 2012 a a a Alabama 2,252 2,590 15% 63 70 11% Alaska 689 699 1% 137 129 -6% Arizona 2,907 2,688 -8% 62 54 -13% Arkansas 2,235 2,236 0% 103 100 -3% California 10,840 7,253 -33% 40 25 -37% Colorado 2,873 2,567 -11% 78 65 -17% Connecticut 1,082 772 -29% 40 28 -31% Delaware 257 216 -16% 38 30 -20% D.C 274 270 -1% 57 51 -10% Florida 8,692 6,847 -21% 60 45 -25% Georgia 4,394 3,371 -23% 63 45 -27% Hawaii 751 486 -35% 73 45 -38% Idaho 991 802 -19% 89 69 -23% Illinois 5,073 4,115 -19% 53 42 -21% Indiana 4,373 4,302 -2% 91 87 -4% Iowa 2,120 1,992 -6% 93 85 -8% Kansas 2,271 2,111 -7% 108 98 -10% Kentucky 2,117 1,968 -7% 65 59 -10% Louisiana 1,510 1,489 -1% 45 43 -6% Maine 850 580 -32% 81 55 -33% Maryland 3,536 3,442 -3% 82 76 -7% Massachusetts 2,760 1,977 -28% 55 38 -31% Michigan 5,457 4,329 -21% 72 57 -22% Minnesota 2,025 1,493 -26% 51 36 -29% Mississippi 1,264 1,052 -17% 58 47 -19% Missouri 3,144 2,886 -8% 70 62 -11% Montana 855 766 -10% 114 98 -14% Nebraska 992 830 -16% 74 60 -19% Nevada 869 984 13% 44 47 8% New Hampshire 793 418 -47% 78 40 -49% New Jersey 2,939 2,247 -24% 44 33 -26% New Mexico 720 570 -21% 48 36 -24% New York 8,524 7,359 -14% 57 48 -16% North Carolina 3,649 3,115 -15% 52 42 -19% North Dakota 299 309 3% 59 57 -3% Ohio 5,571 4,352 -22% 64 49 -23% Oklahoma 2,909 2,514 -14% 105 87 -17% Oregon 2,320 1,763 -24% 80 58 -27% Pennsylvania 4,973 4,000 -20% 51 40 -21% Puerto Rico 311 232 -25% 11 8 -25% Rhode Island 492 442 -10% 60 53 -11% South Carolina 1,546 1,824 18% 45 50 12% South Dakota 463 409 -12% 77 65 -16% Tennessee 3,139 3,048 -3% 66 61 -7% Texas 11,792 11,011 -7% 67 58 -14% Utah 1,968 1,524 -23% 108 78 -28% Vermont 473 343 -27% 96 68 -29% Virginia 2,578 2,706 5% 43 43 -1% Washington 3,058 2,608 -15% 61 49 -20% West Virginia 1,072 1,188 11% 74 81 9% Wisconsin 2,219 2,030 -9% 52 46 -11% Wyoming 386 389 1% 93 88 -5% Total 139,647 119,514 -14% 60 49 -18%

Trends in U.S. Adoptions: 2008-2012 19 Proportion of Adoptions by Type and State, 2012 Public Intercountry Other

National

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D.C. Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

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Other Types of Adoptions. The category of methodology combines data from multiple sources “other” adoptions includes all adoptions that that may not be exactly comparable, it produces are not public agency or intercountry, including the most reasonable estimate of adoptions. private-agency, tribal, facilitated, independent, and stepparent adoptions. Other sources It is not possible to provide estimates of the accounted for 58,822 adopted children in number of adoptions in the subcategories of 2012 and 66,967 adopted children in 2008. other adoptions using available data. The decrease in other adoptions from 2008 to 2012 was 12 percent, but the percent of Limitations all adoptions categorized as other remained relatively steady (48 percent in 2008 and Although the data from this study provide a 49 percent in 2012). In 2001 other adoptions reasonable estimate of the number of children accounted for 50 percent (70,482) of all adoptions. adopted in the United States, several caveats should be noted: Data Sources Assumptions for intercountry adoption data. Data for this study were collected from Not all states give full effect and recognition to multiple sources, including: adoptions finalized in other countries. In states that do not give full effect and recognition, state courts (total adoptions) parents must go through their local courts to finalize the adoptions. Additionally, parents state departments of social services in states that do give full effect and recog- (total adoptions) nition may readopt their children in their state bureaus of vital records local courts as an additional protection of their (total adoptions) adopted children’s legal status. There are no data on the percentage of adoptions that U.S. Department of Health and Human occur abroad that are also processed by U.S. Services (public-agency adoptions) courts. For this study, the author assumed U.S. Department of State that 1) families in states that give full effect (intercountry adoptions) and recognition to adoptions finalized in other countries would not readopt their children The total number of adoptions was determined in U.S. courts, and 2) families in states that primarily using adoption filings data from state do not give full effect and recognition would courts. These data were obtained from court readopt their children in U.S. courts. websites and reports, direct contact with the courts, Year parameters vary by source. and the National Center for State Courts. When Some sources use federal fiscal years court data were unavailable, data were sought from (October-September) for their data, some use state departments of social services, which may calendar years (January-December), and others receive records of all adoption petitions or final- use state fiscal years (often July-June). The izations from the courts, or from state bureaus data for this study were aggregated by year of vital records, which track birth-certificate without consideration of the type of year. amendments due to adoption. Although this

Trends in U.S. Adoptions: 2008-2012 21 Vital-records-data methodology. Bureaus of vital records report when a birth …after the United States ratified the certificate for a child born in that state was Hague Convention, it deemed that amended due to adoption, but the amendment it could no longer receive adoptions may not have occurred within the same year from Guatemala, which had a the adoption was finalized. This may affect noncompliant system for adoptions. the year in which an adoption is counted (e.g., the adoption occurred in 2010, but the from Guatemala decreased from 4,112 in 2008 birth certificate was not amended until 2012) to 754 in 2009, which represents 72 percent of or create a potential double count if a child from the decrease in intercountry adoptions during a state that provided vital-records adoption data that time. (Some adoptions already in process was adopted in another state that provided were allowed to proceed.) Another possible reason court or department-of-social-services data. for the decline in intercountry adoptions is that It is not known how many adoptions these some countries, such as China, Russia, and Korea, issues affect, but it is not likely to have have increased their emphasis on domestic a significant effect on the overall data. adoptions, which may reduce the number of children available for intercountry adoption in Use of court-filings data. the United States. (See S. Vandivere, K. Malk, Although nearly all petitions filed are and L. Radel, “Adoption USA: A Chartbook Based granted, some are denied; therefore, on the 2007 National Survey of Adoptive Parents,” counting filings data may cause a very U.S. Department of Health and Human Services, slight overestimate of total adoptions. Washington, D.C., November 1, 2009; retrieved from http://aspe.hhs.gov/report/adoption-usa-chart- Discussion book-based-2007-national-survey-adoptive-parents.) Even when excluding intercountry adoptions Although it was not the only reason, the altogether, the number of adoptions in the decrease in intercountry adoptions was likely United States still decreased 8 percent from a key driver to the overall decrease in total 2001 to 2012 and 9 percent from 2008 to 2012. adoptions. Adoptions decreased by 20,133 from 2008 to 2012, with the decrease in intercountry Although there was a decline in the number of adoptions accounting for 44 percent of that children in foster care waiting to be adopted, decline. In 2008 the United States ratified the as well as the overall number of children in Hague Convention on Protection of Children care, the number of adoptions through public and Co-operation in Respect of Intercountry agencies remained relatively steady from 2001 Adoption. The number of intercountry adoptions to 2012, which may have helped buoy the total began declining in 2005, but a steep drop number of adoptions from a steeper decline. coincided with the ratification of the Hague According to data from the U.S. Department Convention, which affected how the United of Health and Human Services, the number of States participated with other countries in children waiting to be adopted decreased 21 intercountry adoptions. For example, after the percent (129,000 to 101,737) from 2001 to 2012, United States ratified the Hague Convention, but the number of adoptions with public-agency it deemed that it could no longer receive involvement has actually increased 4 percent adoptions from Guatemala, which had a (from 49,945 to 52,042) during that time. noncompliant system for adoptions. Adoptions

22 Trends in State Courts 2016 Family Law

The annual number of children being adopted from foster care has remained steady, even with the declining number of children available for adoption. This could be attributed, in part, to the federal government’s concerted efforts to move children in foster care to permanent placements, including adoption, more quickly. Two provisions of the Adoption and Safe Families Act of 1997 helped promote adoptions: 1) the requirement that states How the Courts Can Help initiate court proceedings to free children for Although the data provided in this article provide adoption once they had been in foster care for a reasonable estimate of the number of adoptions at least 15 of the most recent 22 months, unless in the United States, the estimates could be there was an exception, and 2) the Adoption improved with access to data that are more Incentives program, which provides monetary comparable and provide more detailed information incentives for states to increase the number about adoptions. Courts could assist by collecting of children adopted from foster care. Other more granular data about the types of adoptions federal support for increased adoptions from (e.g., intercountry, stepparent, relative, facilitated) foster care include the Fostering Connections and the characteristics of the children and to Success and the Increasing Adoptions Act families involved (e.g., race/ethnicity, tribal status, of 2008, which expanded financial assistance gender). These more detailed data can help for families who adopt from foster care, and policymakers, agency administrators, and various grant programs focused on removing service providers better understand the extent barriers to adoption. of adoption in their communities and develop tailored policies and programs. Additional research is necessary to gain a more complete picture of adoption trends in the Even if courts were to begin collecting additional United States. Future analyses could focus on data, there is currently no single entity officially commonalities, such as policies, demographics, tasked with collecting comprehensive, national or economic conditions, among states that data on the number of adoptions. However, because have experienced the greatest increases or the U.S. courts are the body that grants all adoptions decreases in the various types of adoption. (except certain adoptions finalized abroad), they could be a key factor in improving the available For a more detailed presentation of the data, adoption data and assisting in its compilation. data sources, limitations, and implications, refer to “Trends in U.S. Adoptions: 2008–2012” from Child Welfare Information Gateway at https://www.childwelfare.gov/pubs/adopted0812/. …because the U.S. courts are the body that grants all adoptions (except certain adoptions finalized abroad), they could be a key factor in improving the available adoption data and assisting in its compilation.

Trends in U.S. Adoptions: 2008-2012 23 “Parenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.”

AFCC Task Force on Parenting Coordination

24 Trends in State Courts 2016 Family Law

Family Law

Parenting Coordination and the Courts

Chief Magistrate, Cuyahoga County Court of Common Pleas, Serpil Ergun Division of Domestic Relations, Cleveland, Ohio

Domestic relations courts are turning toward parenting coordinators to reduce the volume of cases that return to court frequently over parenting arrangements. Parenting coordination may be better suited to meeting the immediate needs of families in conflict over post-decree parenting issues than the adversarial adjudicative process. The theory is that parenting-plan-implementation Divorce courts today struggle with high-conflict disputes can be managed more effectively post-decree parenting cases that come back through extrajudicial means. to court often over parenting issues related to custody and parenting-time arrangements. These chronic cases, which rarely involve true conflict parents carry out their parenting plans by legal issues, clog court dockets and overwhelm providing a prompt resolution to time-sensitive resources. At the same time, the adversarial disputes as they arise, in ways the traditional court legal process exacerbates parental conflict process cannot in part because of the constraints and puts children at risk for poor outcomes. inherent in providing due process. These disputes Children exposed to persistent conflict are at might involve which extracurricular activities a risk for significant adjustment, academic, and child should participate in, whether a child may get a relationship problems throughout their lives. passport and travel outside the country, and whose vacation should take precedence when parents Faced with these intractable cases, family law schedule their vacations at the same time. The professionals have developed a distinctive dispute theory is that parenting-plan-implementation resolution process to spare families from the harmful disputes can be managed more effectively through effects of perpetual conflict and repetitive litigation. extrajudicial means. If parental conflict is averted, Parenting coordination is designed to help high- the well-being of children will be preserved.

Parenting Coordination and the Courts 25 While the courts are ill suited to solve the complex Parenting coordination is a hybrid process relational issues involving power, trust, and control practiced by attorneys, psychologists, and social these cases involve, they have been the only forum workers that integrates the fields of law, mental available for angry parents who cannot communicate health, and conflict resolution. The singular and have reached an impasse to have their concerns feature of parenting coordination is its fusion of addressed. This small percentage of highly litigious multiple roles played concurrently by a single parents capitalize on the court’s continuing individual. It combines the skills of an educator, jurisdiction to modify and enforce orders, its investigator, mediator, and arbitrator. When parents parens patriae responsibility to protect children, are unable to resolve disputes on their own, they subjective legal standards (“best interest of are required by court order to use the services the child”), and lax enforcement of res judicata of a third party, who will first try to facilitate a principles to present an infinite variety of parenting resolution. Should the parents fail to reach an issues, which are constantly in flux. The situation agreement with the assistance of the parenting worsens once court action is initiated. The need coordinator, the coordinator will make an for healthier ways to address parenting disputes authoritative decision that has the force of law. than subjecting families to damaging litigation is obvious to the reform-minded family law Parenting coordination is an intervention, a dispute community, which is shifting toward restorative, resolution process, and an innovative form of case problem-solving jurisprudence. management. It differs from traditional alternative dispute resolution processes and forensic services Parenting coordination is a child-focused alternative like custody/parenting evaluation, which are used dispute resolution process in which a mental pre-adjudication, in that it addresses the parties’ health or legal professional with mediation training post-judgment needs. Unlike the court process, and experience assists high conflict parents to which culminates in a one-time ruling, it is ongoing. implement their parenting plan by facilitating the Services are provided informally, without making resolution of their disputes in a timely manner, a record, in a nonadversarial but court-sanctioned 1 AFCC Task Force on Parenting Coordination, educating parents about children’s needs, and environment on an as-needed basis. The parenting Guidelines for Parenting with prior approval of the parties and/or the coordinator is available but actively involved only Coordination (Madison, WI: Association of Family court, making decisions within the scope of if the parents seek help. and Conciliation Courts, 1 2005), p. 2; available at the court order or appointment contract. http://www.afccnet.org/ Portals/0/AFCCGuide- linesforParentingcoordi- nationnew.pdf.

Phases in Parenting Coordination

Gather Facts and Educate and Facilitate Issue Appeal Understand Problem Communication Decision to Court

26 Trends in State Courts 2016 Family Law

Pre- and Post-Adjudication Services

Pre-Adjudication Adjudication Post-Adjudication

Parenting Education Mediation Neutral Evaluation Home Investigation Judgment Parenting Coordination Family Evaluation Guardian ad litem Child’s Counsel

The appointment of a parenting coordinator shifts The directives to Ohio trial courts using parenting responsibility for the resolution of disputes from coordination are comprehensive. Appointments the courts to a third party because parents are are appropriate only in limited circumstances. legally required to use the services of a parenting A coordinator must have extensive pre-service coordinator who possesses final decision-making education, experience, training, and continuing authority. The parenting-coordinator role is education. The rules mandate procedures for one of considerable authority. the issuance and judicial review of parenting- coordinator decisions, periodic evaluation of Parenting coordination holds promise to better coordinators, and addressing of complaints. serve parents and children, because it is less adversarial, and to reduce the number of recurrent cases that frustrate courts. At the same time, the …the parenting-coordination delegation of the court’s exclusive decisional powers model must demonstrate fairness, to someone who is not a member of the judiciary, access to justice, due process, particularly when parents do not voluntarily submit accountability, and transparency… to the process, presents challenges in jurisdiction, due process, and access to justice. The arbitrative aspect of the parenting-coordination process, They also require domestic abuse and domestic in particular, has made it controversial in some violence screening before and during parenting jurisdictions. For these reasons, courts considering coordination. The rules prohibit serving in multiple adopting the parenting-coordination process roles within a family that create professional must be careful to ensure that procedural conflicts, such as a guardian ad litem, custody safeguards are in place. evaluator, or therapist and as a coordinator. Courts must address the termination of an appointment, In April 2014, Ohio joined the growing number of terms, and conditions for fees including fee waiver jurisdictions that employ parenting coordinators to for indigent parties, and the reporting of continuing- 2 Supreme Court of Ohio, resolve post-decree disputes in high-conflict education fulfillment. Most importantly, the Rules of the Superinten- dence of the Courts of parenting cases. Ohio implemented parenting Ohio rules make abundantly clear that parenting Ohio, Sup. R. 90-90.12; coordination by way of rules of superintendence coordinators do not possess authority to change available at http://www. supremecourt.ohio.gov/ promulgated by the Supreme Court of Ohio, thus custody or primary placement of a child or to LegalResources/Rules/ superintendence/Super- retaining control of the process within the courts.2 grant, change, or terminate a protection order. intendence.pdf.

Parenting Coordination and the Courts 27 It is important that anyone seeking to implement success of the process are cost; parents’ lack of or use parenting coordination—a state creating motivation, ability, and capacity to disengage legislation or rules, a court establishing a program, by separating their personal relationship from or a judge ordering parenting coordination— their parental role; and operational flaws in the be mindful of the need to exercise oversight over appointment process, such as a coordinator not the delegation of the judiciary’s authority so as being aware of an appointment or parents never to maintain legitimacy and public trust. In all making contact with the coordinator. A serious, regards, the parenting-coordination model must evidence-based review must take into account demonstrate fairness, access to justice, due process, objective data about reductions in filings, resources accountability, and transparency. Anyone used, and judicial time, as well as the subjective authorizing the use of parenting coordination must views of all participants in the process, especially also strive to ensure that parenting-coordination parents who are often the last to be consulted, programs, whether court connected or offered if they are consulted at all. Although conducting by private providers, are high quality and such a review is challenging, courts that fail to do affordable; coordinators are competent; services so run the risk of creating more problems for those are available to low- and middle-income parents; high-conflict families than they already have. and parties, attorneys, and family law professionals, such as guardians ad litem and evaluators, Courts should collaborate with mental health and understand the coordinator process, how it works, conflict reduction professionals to compare the and what it can and cannot accomplish. These effectiveness of their parenting-coordination efforts are also necessary to provide parenting programs with other conflict prevention inter- coordination the support it needs to be successful. ventions, such as parenting education, online Without the court’s involvement and oversight, communication tools, parenting coaching, and it is unlikely that this dispute resolution process therapy—and when there is no intervention. will work as designed and accomplish its intended Courts should also engage in interdisciplinary objectives. Local courts should consider research to identify family characteristics and establishing in-house parenting coordination program attributes that allow parents and children programs, which provide the opportunity to to benefit from parenting coordination. With this standardize delivery of services in appointment data, courts can triage families into services most protocols, the rate charged, the background and optimal to their needs. experience required of the coordinator, the duration of the appointment, and the delivery of services. There is a strong desire for an alter- A critical function for courts using parenting native to the traditional adjudicatory coordinators is to systematically assess and process among divorced parents evaluate the effectiveness of their programs. who have experienced the effects of While parenting coordination is highly touted, the legal system and in the commu- especially among mental health professionals, nity of family law professionals. parenting coordination lacks sufficient empirical data as to its efficacy in minimizing parental conflict, improving cooperation, and reducing litigation. Parenting coordination is not universally successful. Factors that negatively affect the

28 Trends in State Courts 2016 Family Law

There is a strong desire for an alternative to the system and the courts owe it to families to traditional adjudicatory process among divorced explore creative methods of offering more holistic parents who have experienced the effects of the ways of resolving post-judgment parenting legal system and in the community of family law disagreements than the litigation model. As courts professionals. The rise of alternative dispute evolve and their purposes and responsibilities resolution processes and the shift in domestic change, justice is served by minimizing conflict relations courts toward a therapeutic, problem- and promoting the well-being of families. Parenting solving orientation speaks volumes. While coordination is a tool to accomplish this goal. parenting coordination is still unproven, the justice

“Central to any society is the health and welfare of its families and children.”

Indiana Chief Justice Loretta H. Rush

Parenting Coordination and the Courts 29 “Our juvenile system is designed not to be an adversarial system where the parties compete to be winners, but instead, a system where everyone, including the juvenile officer, has one goal — to preserve and promote each child’s welfare. Because when the child wins, we all win.”

Missouri Chief Justice Patricia Breckenridge

30 Trends in State Courts 2016 Family Law

Family Law

The Interstate Compact for the Placement of Children and the National Electronic Interstate Compact Enterprise

Court Technology Diana Graski Consultant

Bureaucratic delay is too common in Interstate Compact for the Placement of Children (ICPC) cases. The good news is that the initial pilot in six jurisdictions of the National Electronic Interstate Compact Enterprise (NEICE) has been very successful and is being expanded nationwide.

The scenario is too familiar to juvenile and request a home study of the target placement family court judges: a promising placement in in a receiving state. The receiving state has a sister state is delayed, or stymied altogether, the access to the placement candidates and by challenges associated with completing the the connections with local law enforcement steps required by the Interstate Compact for to complete mandatory background checks. the Placement of Children (ICPC). Adopted by all 50 states, the District of Columbia, and the U.S. Virgin Islands, the ICPC’s goal is NEICE replaces hard-copy ICPC forms laudable: ensuring children’s safety in foster and U.S. Postal Service delivery with care, guardianship, or adoption placements near-real-time communication among that occur across state boundaries. The ICPC local child welfare caseworkers provides the protocol for a sending state to and state ICPC administrators in both sending and receiving states.

The Interstate Compact for the Placement of Children and the National Electronic Interstate Compact Enterprise 31 The ICPC also provides the protocol for the The initial results (published in the June 2015 receiving state to report its findings to the “NEICE Evaluation Report”) are extremely sending state and for the sending state to encouraging: transmit its ultimate placement order to the receiving state. Alas, for cases where time is 45-46 percent reduction in the time elapsed from always of the essence, the ICPC process has the first identification of a case as an ICPC case been plagued by delay. to the delivery of the ICPC Form 100A packet to the receiving state (the initial ICPC request) The ICPC business process is complex (see ICPC for Regulation 7 (expedited) cases, 48 process-flow diagram) and involves many state percent reduction in time elapsed between and local court and agency actors. Lag time Form 100A’s delivery to the receiving state accrues at each of the almost 40 hand offs, from and the receiving state’s delivery of its final the initial court order requesting the child welfare decision to the sending state (26 percent agency to pursue an interstate placement reduction for non-Regulation 7 cases) (which triggers the creation of ICPC Form 100A), all the way to delivery of the final placement for Regulation 7 cases, 75 percent reduction order (when the ICPC Form 100B arrives). in time elapsed between the sending state’s start on Form 100B and the delivery of the Recognizing the negative impacts of delay Form 100B packet to the receiving state (44 on children and families, the Conference of percent reduction for non-Regulation 7 cases) State Court Administrators (COSCA) in 2009 overall, the average total number of days published a policy statement “recommend[ing] elapsed for the ICPC process was reduced by using technology to expedite the ICPC request 34 days for Regulation 7 cases and 36 days packets and receipt of reports” (COSCA Policy for non-Regulation 7 cases—more than a Statement on the Interstate Compact for the month in the life of each impacted child Placement of Children, December 4, 2009). Happily, that policy is becoming reality. Note that the vast majority of the 4,748 cases included in the NEICE evaluation involved a state Starting in August 2014, six pilot jurisdictions— that was not a NEICE pilot state; for those cases the District of Columbia, Florida, Indiana, Nevada, in which both the sending and receiving states South Carolina, and Wisconsin—implemented were NEICE pilots, the improvement in timeliness the National Electronic Interstate Compact was even more dramatic. Indeed, Shannon Foster, Enterprise. NEICE replaces hard-copy ICPC the deputy ICPC administrator for Nevada, forms and U.S. Postal Service delivery with recently explained that NEICE-enabled private near-real-time communication among local child adoptions between her state and another pilot welfare caseworkers and state ICPC adminis- state now take one hour to complete. trators in both sending and receiving states.

32 Trends in State Courts 2016 Family Law

NEICE – ICPC Process Flow Data Collected for Baseline (version 4/4/2014) Start

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Sending – Local Agency a a im a ail

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Sending – State ICPC a i m y a ii a m i a ii a a im a ail a im a im a ail

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a a iw m y a a a aim Fii aim ll a aim Fii aim a aim Fii aim m im ml i a m im ml a ml m im ml i a

a i m y a Receiving – State ICPC Lal y m Lal y Lal y a im a ail a im a im a ail

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m y a a im a ail Receiving – Local Agency

The Interstate Compact for the Placement of Children and the National Electronic Interstate Compact Enterprise 33 How Does NEICE Improve Timeliness What Steps Can Court Leaders Take to of Interstate Placements? Improve the Timeliness of Their ICPC Cases?

Quoting from the American Public Human First, what not to do: As Judge Stephen Rideout Services Association’s project website, NEICE stated in his 2007 article, “The Promise of the “is a web-based electronic case-processing New Interstate Compact for the Placement of system that…exchange[s] data and documents Children,” “while prompt movement of children across state jurisdictions.” NEICE is, essentially, is important, safe movement of children is an interstate case management system that more important” (Child Law Practice 25, no. 11, enables ICPC case tracking, document p. 165). Shannon Foster explained that moving creation and transmission, communication a child across state lines before the ICPC among participating states, and data from process is complete poses serious risks, most which management reports and performance importantly to the child’s safety, but also: measures can be calculated. potential placement disruptions Similar to e-filing in courts, NEICE transmits losses or gaps in Medicaid coverage ICPC forms almost instantly between sending and receiving states, eliminating the lag difficulties with school enrollment time inherent in postal delivery. (NEICE also loss of Title IV-E eligibility “significantly…reduced administrative costs,” by eliminating paper copying and postage.) loss of services NEICE provides immediate notice to ICPC staff unintended consequences regarding that forms requiring their action have arrived the sending state’s liability in their queue. Nevada’s Shannon Foster also reports a notable improvement in the quality of data contained in the ICPC forms: thanks NEICE Implementation Process to business rules enforced in the NEICE user (As of March 7, 2016) interface, incomplete or clearly inaccurate 3 3 information (like a 1910s birthdate for a child) ? * are eliminated. Improved data quality elimi- 1 2 2 ? * ? DC nates much of the time-consuming “back and 1 2 3 2 * * forth” between states, trying to secure correct ? information about children and families so that ? 1 * the next ICPC step can be undertaken. * Even more fundamentally, NEICE enables NEICE (* = Pilot State) 1 Joining Year 1 (6/15-5/16) real-time communication between ICPC teams. 2 Joining Year 2 (6/16-5/17) No longer is an interstate placement delayed 3 Joining Year 3 (6/17-5/18) because the appropriate contact in a partner ? Joining Year (to be determined) state was unknown or unreachable. Interested in Joining Not Interested in Joining (at this time)

34 Trends in State Courts 2016 Family Law

So it is essential for court leaders to work 3. Collect baseline data about “time to intensely and collaboratively to improve their permanency” for your court’s ICPC cases. ICPC systems, rather than allowing their completely understandable frustration with ICPC Is it possible for your court to identify its ICPC delays to cloud their judgment about shortcutting cases, to calculate key court performance the ICPC protocols in particular cases. Here are measures for those cases, and to compare a few suggestions for concrete actions court the ICPC cases’ timeliness measures to all leaders can take at the local and state levels. of the other dependency cases under your court’s jurisdiction? Being able to quantify 1. Contact your ICPC administrator. ICPC delays in your jurisdiction can be very persuasive to policymakers. An up-to-date list of ICPC administrators is maintained by the Association of Administrators 4. Contact the NEICE project team. of the Interstate Compact for the Placement of Children (AAICPC) at http://tinyurl.com/jzu925q. The American Public Human Services Association If you have not had an opportunity to engage (APHSA) is the prime mover of the NEICE project, your state’s ICPC administrator, we encourage together with the participation of the AAICPC. you to reach out. Three states, California, Ohio, Following the successful initial pilot, APHSA and Colorado, are “decentralized” for ICPC and AAICPC received the financial support of purposes, meaning that ICPC communications the federal Department of Health and Human and activities (like home studies) are managed Services Children’s Bureau “to expand NEICE at a county level. In these three decentralized nationwide.” NEICE is now operating in eight states, collaboration between local juvenile jurisdictions, and 24 additional states are and family court leaders and local ICPC in the process of joining in the near future. administrators could be most beneficial. The NEICE project team offers clear instructions on its website about how to express interest in 2. Invite your ICPC administrator implementing NEICE in your state, as well as to your next judicial conference. key project documents to help you prepare.

We suspect that most family and juvenile court practitioners are not aware of the NEICE is now operating in eight NEICE project, perhaps not even in the six jurisdictions, and 24 additional pilot states. Including some time in the agenda states are in the process of joining for your next Court Improvement Program in the near future. steering committee meeting or family judicial conference for your ICPC administrator is a good way to begin conversations about ICPC cases and your jurisdiction’s unique challenges. Perhaps you could use the ICPC process-flow diagram to identify the most time-consuming steps in your jurisdiction, as well as opportunities for improvement (including NEICE).

The Interstate Compact for the Placement of Children and the National Electronic Interstate Compact Enterprise 35 5. Work with your court Which Future Developments and child welfare IT teams. Might Benefit Courts?

NEICE was developed using national technical The ICPC is not the only interstate compact standards for messaging (Web Services) and governing children under your court’s jurisdiction; data (National Information Exchange Model). the Interstate Compact for Juveniles (ICJ) Therefore, it is possible for your IT teams to governs interstate placements in delinquency develop interfaces among NEICE, your court cases, and the Interstate Compact on Adoption case management system, and your child and Medical Assistance (ICAMA) governs key welfare information system. For example, financial resources, like adoption subsidies and Nevada built a data interface between NEICE Medicaid coverage. The NEICE project leaders and its child welfare information system, were keen to design NEICE in such a way that UNITY, reducing even further the time and it could be reused for ICJ and ICAMA cases, too. effort required to prepare ICPC forms and Thinking especially about children with both “consume” ICPC responses from partner dependency and delinquency matters before states. The District of Columbia, South your court, NEICE promises much-improved Carolina, and Wisconsin did likewise. Nevada’s case management. Deputy ICPC administrator, Shannon Foster, explained that her team is also benefiting from Even further in the future, one can imagine the availability of electronic court orders from NEICE enabling the calculation of safety the family courts in Clark County, Nevada. measures for ICPC cases—today, an elusive goal for children placed across state lines. 6. Work with your ICPC administrator and The case and person information in NEICE the NEICE project team to secure your might allow courts to answer questions like, court’s “read” access to NEICE. “How predictive of a child’s safety was the receiving state’s home-study report?” A common frustration with ICPC cases among The key court performance measures for court leaders is not knowing—not knowing safety require matching a receiving state’s whether a 100A packet has been sent, whether home-study packet with both the sending state a home study has been completed, or when and receiving state’s person-level records for to schedule a hearing to review the receiving a child. NEICE could help court leaders locate state’s report. Therefore, one of the most that data, and in so doing, improve not only significant benefits NEICE offers courts is the timeliness but also safety. ability to track an ICPC case’s progress and understand who is responsible for completing the next step. For example, Florida courts can now “view” their ICPC cases in NEICE.

36 Trends in State Courts 2016 Family Law

http://www.aphsa.org/content/AAICPC/en/actions/NEICE.html

The Interstate Compact for the Placement of Children and the National Electronic Interstate Compact Enterprise 37 “Working together, we have successfully addressed so many challenges. In recent years, those efforts resulted in an increase in high school graduation rates, and the collaborative work with juvenile justice has been so successful that one entire facility is no longer needed for detaining youth.”

Maine Chief Justice Leigh I. Saufley

38 Trends in State Courts 2016 Family Law

Family Law

A Proactive Approach to Self-Assessment in the Juvenile Justice System

Magistrate Judge, State of Idaho, and Statewide Juvenile Justice Judge, Hon. Mark A. Ingram Idaho Supreme Court Administrative Office of the Court Project Director, Probation System Reform, Kari L. Harp Robert F. Kennedy National Resource Center for Juvenile Justice

The juvenile justice system involves many participants beyond the courts, such as schools and child protective services. This article discusses how courts are uniquely positioned to lead the charge for reforming this multifaceted system and ensuring positive outcomes for juveniles.

Historically, the juvenile justice system has not might affect public safety for better or worse, been held accountable for much. Most courts and little data have been systematically collected have taken a narrow view of their accountability or analyzed by individual courts toward that end. for individual or cumulative outcomes for youth However, juvenile courts are becoming entering the system. If it can be said that we increasingly conscious of how their policies, measure what we value, court systems have processes, and practices can improve outcomes primarily measured throughputs—how many for the young people with whom they come into cases were filed, how fast those cases were contact. That awareness also encompasses an disposed of, and what type of offenses were understanding that the court does not operate in involved. Until recently, most courts have paid a vacuum. Efforts to reform the juvenile justice little attention to how general practices and system must involve many participants, and the individual decisions affecting case management court is uniquely positioned to lead the charge.

A Proactive Approach to Self-Assessment in the Juvenile Justice System 39 Accountability Across the System These invaluable (data) reports identify important changes in youth crime and processing trends, As the volume of best-practice research has grown, but are not designed to provide information on courts are becoming more willing to develop outcomes relevant to court dispositions and the policies and practices demonstrated to improve effectiveness of probation and other interventions, rates of recidivism and other measures of positive especially at the local level. There is, therefore, youth outcomes. That willingness is complicated little information on the performance of state by an essential truth regarding the juvenile justice and local probation agencies, or for that matter, system: it is not a single system but, rather, the even less on the performance of other system intersection of independent agencies and components (e.g., diversion), that could assess individuals who have important but discrete roles. aggregate impacts across multiple dimensions In its most insular definition, the “system” includes on an ongoing basis (Bazemore, 2006: 2). judges, law enforcement, prosecutors, defense attorneys, and probation officers. However, when The underlying question always remains, “How do expanded to include all partners who influence a we know whether the practices in our delinquency youth’s success, the definition of system expands to system are supporting positive outcomes for include schools, substance-abuse-treatment youth or creating negative ones?” Ideally, each providers, mental health professionals, child stakeholder in the juvenile justice system would protective services, community-based youth commit to ongoing assessments of their own programs, local government leaders, and certainly policies and practices, embracing not only a children and their families. This comprehensive commitment to quality assurance but continuous definition of the system creates challenges for quality improvement, as well. Together, the system accountability and opportunities for collaboration partners should be asking on a regular basis, that can support exponential improvements in “Are we keeping up with the research on what a youth’s life. works best? Are we maintaining the quality of our current programs and practices?” A jurisdiction How Do We Measure Effectiveness? that commits to this type of regular inquiry will stand apart as one that values accountability in Measuring the effectiveness of the juvenile both theory and action. This, in turn, will foster justice system has been a longstanding support, trust, and ideally investment from the challenge. No standard definitions of success community, youth, parents, staff, and the multitude exist, and each jurisdiction or state must of system stakeholders who share the responsibility develop their own set of performance measures of creating safe, supportive, and responsive to gauge their effectiveness. However, these environments in which youth can thrive. performance measures only provide limited information. As the author of Measuring Undertaking such an inquiry requires the What Really Matters in Juvenile Justice notes: leadership of a champion for change as much as it requires the collaborative support of multiple stakeholders. System self-assessments do not just happen. Every effort to improve and reform a practice, process, or protocol had its start because one person was brave enough to begin this conversation and not let it die.

40 Trends in State Courts 2016 Family Law

Judges as Champions of Change Leadership without authority requires a different skill set than those situations where Meaningful leadership in juvenile justice reform one can simply order something and expect it can come from any individual or group who has to be done. Judges become quite good at the regular involvement in the juvenile delinquency latter but may need help developing the softer process. However, the court is uniquely situated skills required to lead those who are not required to provide such leadership. The juvenile court to follow, such as in the case of developing a sits at the middle of the intersection through culture of accountability and self-assessment which all involved individuals and organizations within the whole juvenile justice system. Any ultimately pass. Judges see the interrelationships lasting and significant change in a multifaceted of the various parts of the system and see the system will occur by way of choice and not impact of those interrelationships on the juveniles a mandate. Invitations to participate should who come before them. emphasize a process that calls on individuals to collaborate to create a system with the potential We just need to get out in front for demonstrably improving outcomes for children of these problems. We didn’t while addressing legitimate concerns about create this system, and we have public safety and accountability. Additionally, no obligation to defend it… the process needs to be genuinely collaborative. However, we are obligated Any meaningful systemic change will depend to try to improve it. on the strength of relationships developed in the collaborative process, rather than the Judge William Byars, Director of the Department of Juvenile relative strength of the collaborators. Justice for the State of South Carolina (ret.) (Bazemore, 2006: 6) A judge can be instrumental in bringing the While judges have no direct authority to dictate parties to the table to begin what can be a series policy or practices outside of the court’s control, of difficult conversations that need to be managed they do, by virtue of their position, possess certain so as to not alienate any of the critical partners. assets, which are essential to any reform effort Because the judge is also an integral part of the involving so many moving parts. First, people system and is frequently an advocate for system respond to their invitations. Judges make great improvement, the judge needs to be a full conveners. Refusal is a rare event when a judge participant in those conversations and should asks someone to show up to a meeting. Second, probably avoid attempting to facilitate them. people have a tendency to respond positively There is a tension between being both an advocate to concerns expressed by the court. Judicial and a facilitator in a collaborative effort. Such a observations and suggestions seem to be process suggests the need for facilitators who taken more seriously by virtue of the position. are knowledgeable about juvenile justice issues Judges can also require complete, accurate, but are unaffiliated with any of the local partners. and timely information be provided to assist the court in its decision making. This can include Any lasting and significant change the demand to use data to inform decisions in a multifaceted system will occur affecting individuals and to measure how the by way of choice and not a mandate. system and its individual parts are doing.

A Proactive Approach to Self-Assessment in the Juvenile Justice System 41 Probation System Review: A Collaborative The Probation System Review process, pioneered Approach to Self-Assessment by the Robert F. Kennedy National Resource Center for Juvenile Justice, led by the Robert F. One method of collaborative self-assessment that Kennedy Children’s Action Corps, was developed can be promoted and advocated by the court is over ten years as the result of assisting proactive a Probation System Review as described in the jurisdictions in their desire to align their practices Probation Review Guidebook (Wiig and Tuell, 2011). with what research shows works to improve As the authors of “Focus on Accountability: recidivism and other youth outcomes. The review Best Practices for Juvenile Court and Probation” uses a structured framework for assessing point out: all the key areas of the probation system:

[J]uvenile probation has the power to affect Element A: Administration decisionmaking and service delivery at every Element B: Probation Supervision stage of juvenile justice processing and Element C: Inter- and Intra-Agency thereby holds the potential to ensure that Work Processes accountability is stressed at all points from Element D: Quality Assurance initial entry through final discharge (Kurly- chek, Torbet, and Bozynski, 2008: 2). Employing a systemic and collaborative approach, the probation system review requires the Reviewing the probation department and the participation of multiple parties, including the system in which it operates allows a guided juvenile court judge, prosecutor, defense counsel, focus of the vehicle that carries the most youth youth corrections, probation officers, and through the juvenile justice system. The road operational specialty courts, to name a few. upon which that vehicle travels must also be These partners convene as the review taken into consideration as the vehicle is only leadership group and exercise the authority to as effective as the quality of the track upon identify common goals and outcomes for the which it travels. By identifying, or mapping, probation department and court. The leadership every key decision point along the juvenile group seeks to align practices across the system delinquency process one can determine to support these goals, use data to inform program 1) who makes the pertinent decisions regarding and resource decisions, and replace ineffective a youth, 2) on what criteria and information and inefficient inter-agency work processes. the decisions are based, and 3) what actions or products result from these decisions. By engaging in a reflective review process, With this information, areas for improvement Jefferson Parish, Louisiana, identified 70 along the continuum of a youth’s journey recommendations for improvement within their within the system become evident, both within probation system. Among their priority areas for and alongside the probation department. reform were an increased focus on data collection and analysis, the identification of youth and system goals, connecting probation officer activities to the achievement of these goals, and improving their screening and assessment process. Jefferson Parish Juvenile Services has

42 Trends in State Courts 2016 Family Law

documented a five-year history of remarkable youth outcomes subsequent to the implementation of these recommendations. A review conducted in the Territory of Guam prompted the attorney general’s office to implement a risk-screening tool to assist in their goal of reducing their 700 annual juvenile petitions by 50 percent. And in Idaho, a judge recently instigated a bi-county assessment whose results will be used to inform a comprehensive statewide review of local probation systems.

Conclusion

In an age where trust in the system continues to dwindle and citizens cry out for honesty and accountability from their civil institutions, the court has an opportunity and an obligation to thoughtfully consider methods for assessing the efficacy of their system. The days of producing output data alone are coming to an end. Each jurisdiction will be presented with three eventual options: 1) continue with References business as usual and hope youth are being served effectively, 2) be spontaneously called Bazemore, G. (2006). Measuring What Really upon to give an account of their policies and Matters in Juvenile Justice. Special Topics Series: practices when a negative spotlight is turned Performance Measures. Alexandria, VA: their way, or 3) proactively assess themselves American Prosecutors Research Institute. to ensure they are doing everything possible to mete out justice, do no harm, and ideally Kurlychek, M., P. Torbet, and M. Bozynski (1999). improve the lives of the youth with whom “Focus on Accountability: Best Practices they come into contact. For a system that is for Juvenile Court and Probation.” responsible for acting upon the community’s Juvenile Accountability Incentive Block best interest, it is hoped that the third choice Grants Program Bulletin, August. Online at becomes the trend of state and local courts www.ncjrs.gov/pdffiles1/177611.pdf. across the nation. Wiig, J., and J. Tuell (2011). Probation Review Guidebook. Boston: Robert F. Kennedy Children’s Action Corps. Online at http://rfknrcjj.org/images/PDFs/Probation_Review_Guidebook.pdf.

A Proactive Approach to Self-Assessment in the Juvenile Justice System 43 “Effective communication promotes and sustains relationships and builds good courthouse morale.”

Hon. Kevin S. Burke

44 Trends in State Courts 2016 Opening Courts to the Public

Opening Courts to the Public

Awareness, Adjustment, and Perseverance Are the Keys to Communication

District Court Judge, Hon. Kevin S. Burke Hennepin County, Minnesota

Effective internal court communication matters, but courts often fail at it. What can be done to improve internal court communication?

Many courts think about external communication. Judges frequently speak at bar association events …effective communication starts in or Rotary Clubs where they extol the virtues of the courthouse and builds its way out. their courts. All of that is great. The more the public understands what the judiciary is doing and why, the more likely that the public will support the courts. But effective communication starts Effective communication promotes and in the courthouse and builds its way out. sustains relationships and builds good courthouse morale. A myriad of problems The role courts play in our democracy motivates occur when courts have ineffective internal judges, but courts are more than judges. Everyone communication. Rumors are a poor substitute who works in a courthouse, regardless of their job, for knowledge and can negatively impact can be inspired by what the court does. But to morale. Email is sometimes great, but as a achieve that inspiration, everyone needs to dominant form of internal communication, understand the decisions and the challenges email has its own set of problems. Email is not the court faces. Judges and court leaders personal. At best, vague email messages can need to view staff as a critical investment and require clarification; at worst, they can erode commit time to inform and motivate them. trust or fuel suspicion.

Awareness, Adjustment, and Perseverance Are the Keys to Communication 45 Effective leaders understand that they need people believe there is widespread corruption in to have a vision, to enhance the vision, and to their government (Gallup, 2015). There is a need commit to achieving it. The difference between to ignite one of the most powerful advocates a vision and a hallucination is simply the for the judiciary: court employees. number of people who can see it. Good leaders communicate a vision. Poor communication Those with a good understanding of results in a leader with hallucinations. communication are curious about other people’s views and are willing to analyze their Because we deal with communication every day, own communication skills. Telling is only part many court leaders assume they know quite a bit of communication. We live in a culture of tell about it. After all, this is all just common sense. (Schein, 2013). Most court leaders have good But if communication is so grounded in common verbal and writing skills (or, at least, they sense, why is it some courts have great communi- think they do). There are times when telling cations and other courts are plagued with rumor, is important, but telling alone minimizes the suspicion, and misinformation? The ability to opportunity to build trust. Asking questions communicate effectively is an essential component and effectively listening draws people into the of good leadership. In one study, 43 percent of conversation and potentially enhances trust. respondents identified communication skills as The strength of any organization is heavily the most critical leadership skill, dependent on a trusting while 41 percent identified workforce. Trust is essential Those with a good inappropriate use of commu- for good morale between understanding nication as the number-one judges, between judges and of communication mistake leaders make (Ken staff, and between managers are curious about Blanchard Companies, 2006). and other employees. other people’s views and are willing to A court leader cannot shape Communication is telling, but analyze their own consensus if those who is also part listening and part communication skills. work in a courthouse do not translation (e.g., “What did trust that leader. The annual she really mean by that?”). Edelman Trust Barometer (2016) recently found Good communicators think of the audience and 82 percent of the people surveyed do not trust the choose words carefully. What a particular word boss to tell the truth. The Edelman Trust Barometer means to one person may not be what it means to is not focused upon courts, and it therefore someone else. How we say something is often as can—if one unwisely chooses—be dismissed. important as what we say. Nonverbal actions in But the survey is even more informative when a courtroom often contradict verbal messages, one learns that peer-to-peer influence is much and the same is true throughout the courthouse. more powerful than top-down influence. The continuum of poor court communication Trust is earned, not given. This is an era of starts with the under-communicator, whose profound skepticism, not just about trusting views are exemplified by, “Why do they need a boss to tell the truth or to care about the to know that?” Court cases make news, and well-being of employees, but about government are sometimes widely discussed by the public. institutions. Seventy-five percent of the American Too often, because of under-communication,

46 Trends in State Courts 2016 Opening Courts to the Public

court employees are asked about an issue of transmits the message. To be a better commu- public concern happening in the courts, but nicator, reflect and do an honest assessment of are left to respond, “They never tell us about your own strengths, weaknesses, and tendencies anything like that.” When the supreme court as a source. Awareness is the first step toward of a state issues an opinion finding the public- change. If you want to have great communication school-financing system unconstitutional, or throughout the courthouse, get everyone else declares the death penalty unconstitutional, to reflect and assess, too. Everyone at times is a the judges know about the decisions. The law source. Everyone can enhance their awareness. clerks know how to find the decision, but every court employee, in weeks following the decisions, The message seems so simple. What do you may be asked about those decisions, or they really want to communicate? Sometimes it is may just be curious themselves. A court that information. Sometimes it is morale building. understands effective communication could Sometimes a message can start with humor, send out an email, “Today our supreme court but can carry an important informational issued a ruling on school financing for our or morale-building message. Sometimes state. I am sure you will read about the decision the message is intended to create shared in the paper tomorrow, but if you would like understanding. Sometimes the message is to read the actual decision, here is a link.” to question and explore options. Sometimes the message seeks to gain commitment, and If a court’s human-resources director has never sometimes it seeks to change behavior. seen a jury trial, its IT director rarely sits to see how the misdemeanor calendars operate, Humor serves two functions: to build relation- or the bulk of the court’s employees rarely, if ships with members of the court team and to ever, see a courtroom in action, then there is lessen tension and anxiety. As a communication under-communication. Some states require tool, effective use of humor can humanize a judges to visit jails or prisons every so often, court leader, enhancing the relationship with but few courts facilitate employees seeing colleagues and staff. Humor can also help the judges in action. That is a missed opportunity message stand out in a crowded market. and poor internal communication. Effective communication is affected by a The other end of the continuum is the court’s culture. “Culture eats strategy for over-communicator. Because of a tendency breakfast” is a saying attributed to Peter to think communication will solve all our Drucker. In a court, the culture eats strategy problems, there are some who believe the more for breakfast, eats operational excellence for communication, the better. If one meeting is lunch, and eats everything else for dinner. good, two would be better. If one short email is Many courts have three cultures: judge to good, a really long email is better. But it is the judge, which tends to be more egalitarian; quality of communication that is important, judge to staff, which tends to be deferential; not just the quantity. and management to staff, which may be very hierarchal. Each of these organizational Communication has four elements: source, cultures can inhibit effective communication. message, channel, and receiver. The source A culture of deference is conducive to top-down determines what is to be communicated and communication, but is invariably weak on

Awareness, Adjustment, and Perseverance Are the Keys to Communication 47 bottom-up communication. The deferential court culture creates a risk that a perverse sense of Good communicators effectively loyalty will trump the candor required for healthy use multiple channels for two-way communication. “If I work at the pleasure communication. They understand of the judge, I do not work at his or her displeasure, a message must be sent at the so I am not going to say what I think.” appropriate time. They understand which channel might be more The channel is the means by which a message effective in any given situation. is carried. Good communicators effectively use multiple channels for communication. Talk to people. Better yet, listen to them. Asking They understand a message must be sent at the questions empowers people and draws them appropriate time. They understand which channel into the conversation. Email is great, but letters might be more effective in any given situation. or handwritten personal notes (“That was a A court leader who has a secretary send out terrific job you did the other day”) get read. an email communication, instead of the leader sending one personally, sends this message: To effectively communicate, the goal is to identify “The leader is too busy to communicate for the desired outcome of the communication first, him- or herself.” That channel is a power trip. and then match the communication approach to The most effective channel is face-to-face. that desired outcome.

Desired Outcomes Approach Channels Share Information One-way Memo Email Video Presentation Create Shared Understanding Multidirectional Small-group meetings and Alignment Dialogue Facilitated dialogue Utilize Q&A Feedback Resource site Explore Options Inviting feedback individually and in groups Dialogue Using questions Feedback Brainstorming Facilated discussion Discussing implications Pros and cons of options Gain Commitment Identifying vision/direction Large- and small-group discussions Providing support Individual discussions Addressing concerns Defining WIIFM (“what’s in it for me”) for each person Change Behavior Modeling desired behavior Classroom Coaching and mentoring In-person in groups and one-on-one Training Experimenting Providing feedback Defining WIIFM (“what’s in it for me”) for each person Source: I. Ioffreda, presentation to the Federal Judicial Center.

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Formal channels are not the only communication The only job more important for court leaders channels functioning in the courthouse. Informal than seeing far ahead is seeing what is right channels are also powerful communication in front of them. If you fail at seeing what is avenues. A lot of courthouse communication right in front of you, distance does not matter. occurs in the parking lot, at lunch, or over coffee. Those who have the propensity to lead by email, Most formal channels follow the “chain of memos, or formal meetings with a rationalization command.” Informal channels involve they do not have time to meet informally communication that follows the “grapevine” are simply not as successful as those who and carries the “scuttlebutt” and the rumors. are more visible to colleagues and staff. They risk missing what is right in front of them. Rumors are part of courthouse communication. Nicholas DiFonze and Prashant Bordia (2006) Courthouses can be intimidating places not describe four basic qualities of rumors: just for litigants, but for employees, as well. Judges can be great leaders, but they can also 1. They are information statements. intimidate. Judges have titles. The ineffective 2. They are in circulation. court leader labors under the delusion that 3. They are unverified. power and authority are derived from impressive 4. Rumors are relevant. titles. Successful court leaders understand that their power and authority are derived from Rumors give understanding to an ambiguous establishing the best relationships with those they situation or make sense of something that is lead. Successful communicators build rapport. unclear. Ineffective communication creates They are persistent in their refusal to accept uncertainty or anxiety and often encourages any circumstance that threatens or undermines people to spread rumors. Research has rapport. They create a culture of appreciation. shown that “dread” rumors (i.e., rumors that something bad is going to happen) spread more than do “wish” rumors (i.e., rumors that It is not easy to keep an open mind to new ideas something good is going to happen). Allport or dissenters, but the best way to enhance trust as and Postman’s (1946) “basic law of rumor” a leader is to respectfully respond, and perhaps states that spreading rumors depends on both change, but always encourage the dialogue. the ambiguity of the situation and the rumor’s importance (see also Rosnow and Foster, 2005). Upward communication can be successful only if those at the higher levels are perceived as Finally, there is the receiver—the person who willing to allow communication to be effective. acquires the source’s message. For communication Positive communication is more likely to go up the to be effective, the influence and experience of the system than negative. It is natural to be responsive receiver need to be considered. In courts, people to ideas that support your own agenda, but there with the authority sometimes lack the knowledge, are other viewpoints and opinions. It is not easy and those with the knowledge sometimes lack to keep an open mind to new ideas or dissenters, the authority. Good communication creates a but the best way to enhance trust as a leader is way for knowledge to inform authority. to respectfully respond, and perhaps change, but always encourage the dialogue.

Awareness, Adjustment, and Perseverance Are the Keys to Communication 49 Upward communication often is inhibited References by fear of consequences (embarrassment, isolation) or a sense of futility. Once people Allport, G. W., and L. Postman (1946). become afraid to speak their minds, they “An Analysis of Rumor,” 10 quickly rationalize their silence. It is hard to Public Opinion Quarterly 501. Available at break the cycle. Some attempts to ameliorate http://poq.oxfordjournals.org/content/10/4/501.short. the problem can be counterproductive. For example, relying on anonymous feedback like DiFonzo, N., and P. Bordia (2006). surveys can create a subtext that “it is not safe Rumor Psychology: Social and to share my views openly.” Worse yet, if the Organizational Approaches. Washington, DC: results of an anonymous survey are not shared, American Psychological Association. the rumor mill has just been fed. Edelman Trust Barometer: Annual Global Study Open doors are good, but they are passive. (2016). Available at http://www.edelman.com/insights/ People still have to approach you to initiate intellectual-property/2016-edelman-trust-barometer/. a conversation. The president of a company hosts a monthly “Lunch with the Prez” meal Gallup (2015). “75% in U.S. See Widespread at local restaurants, using the off-site activity Government Corruption,” Gallup World Poll, as an opportunity to get to know a handful September 19. Available at http://www.gallup.com/ of people better. Why not “Lunch with the poll/185759/widespread-government-corruption.aspx. Chief Judge?” In a Fortune 500 company, senior leaders visit call centers on Friday Ken Blanchard Companies (2006). afternoons to host informal “cookie chats” “Critical Leadership Skills: Key Traits with employees. That time is when the call That Can Make or Break Today’s Leaders,” volume is the lowest. It is the most convenient Research Findings, Ken Blanchard Companies, time for employees to share their thoughts San Diego, London, and Toronto. about the company. And the conversation is on their turf, where they are most comfortable Rosnow, R. L., and E K. Foster (2005). opening up. Which part of the court should “Science Briefs: Rumor and Gossip Research,” you visit on a Friday afternoon? American Psychological Association, Washington, D.C., April. Available at It is not easy to change how we lead. Awareness or http://www.apa.org/science/about/psa/2005/04/gossip.aspx. self-reflection is a start. But the best court leaders know how to grow and change. They adjust, and Schein, E. H. (2013). Humble Inquiry: although adjustments sometimes fail, those The Gentle Art of Asking Instead of Telling. committed to effective internal communication San Francisco: Berrett-Koehler Publishers. know the necessity of perseverance.

50 Trends in State Courts 2016 Opening Courts to the Public

“Talk to people. Better yet, listen to them. Asking questions empowers people and draws them into the conversation. Email is great, but letters or handwritten personal notes get read.”

Hon. Kevin S. Burke

Awareness, Adjustment, and Perseverance Are the Keys to Communication 51 “Our 21st century courts must be open, transparent, and accessible to all. Our citizens’ confidence in their judicial system depends on it.”

Georgia Chief Justice Hugh P. Thompson

52 Trends in State Courts 2016 Opening Courts to the Public

Opening Courts to the Public

A Contrarian View of Two Key Issues in Court Records Privacy and Access

Vice President of Research and Technology, Tom Clarke National Center for State Courts

Thanks to the Internet, the public now expects more information to be easily available. What are the issues with how the courts have tried to balance public access with personal privacy in court records—that is, practical obscurity or redaction of confidential information?

Two of the biggest policy issues and practical files, and electronic online access to court concerns when courts transition from paper data and documents. A majority of states have to electronic documents is the potential established access policies that artificially removal of practical obscurity and the difficulty re-create practical obscurity. A majority of of appropriately redacting sensitive or confidential states have also responded to the redaction information from filed documents. At this problem by putting all responsibility and point, most states have implemented, or are liability on the filers. I will argue here that implementing, electronic filing, electronic case both policy decisions are wrong.

A Contrarian View of Two Key Issues in Court Records Privacy and Access 53 What Is Wrong with Practical Obscurity? So, they opted quite often to make such documents unavailable online but accessible Let us start with what practical obscurity is and at the physical courthouse. Ironically, court- how it came about. In the paper world, court house availability is often via a public terminal documents could only be viewed by traveling and in electronic format. physically to the courthouse and requesting them. In the days before cars, that physical It is not even barrier to access and convenience was even clear that the In no other industry more daunting than it is today, but even now mythology of or government that approach imposes significant time and practical organization is cost penalties on the public. obscurity was there an example of actually true. a document being In fact, no conscious policy decision was ever For many declared public but made to establish practical obscurity in the decades, only accessible by paper world. It happened because in a world of small-town certain artificially paper documents and transportation by horse, newspapers limited means. nothing else could happen. Rather than being a have made a policy decision, it was a fact of life. living off reporting interesting or controversial court cases in great detail. In an era when mass With the advent of the Internet and online communication and entertainment did not yet electronic access, it suddenly became possible exist, court trials were often attended by massive for the public to search for and access court crowds as a kind of rare show. Both the media documents much more easily and broadly. coverage and personal attendance was frequently Privacy experts argued that this change driven by some aspect of the case or the parties represented a qualitative difference that that piqued broader interest. Those attractive required mitigation. In essence, court access case characteristics did not necessarily have any policy had changed without the courts consciously legally redeeming feature. If the re-creation of and knowingly deciding to change it. practical obscurity is justified by the maintenance of a historical status quo, we should at least Because access was now so easy, people would describe that past accurately. search and access documents for what were basically frivolous or unjustified reasons. It is also interesting to consider the implicit logic Further, some parties might be injured by such of artificially introducing practical obscurity. searches, even if they were sometimes the ones The real underlying argument is that some making the search. In the first case, think of people are not worthy of easily viewing court your nosy neighbor prying about a property documents and will do so for unjustified reasons, dispute. In the second case, think about children so we need a barrier to filter them out and limit reading depositions in a toxic divorce case. access to worthy users and uses. This is, on the face of it, a very paternalistic view of the public. So, courts did not want to entirely close documents Although this argument is frequently used that had been open in the paper world, but to justify practical obscurity, it is, of course, neither did they want to allow the easy access possible to retain practical obscurity without that electronic availability would provide. screening who accesses the documents.

54 Trends in State Courts 2016 Opening Courts to the Public

Screening for worthiness is also an extraordinarily obvious that they are restricting access to unique interpretation of what it means to be public documents, but it is a more honest and a public document. In no other industry or consistent policy response. Access is qualitatively government organization is there an example changed by online availability and, in this case, of a document being declared public but only that requires a real policy change. accessible by certain artificially limited means. To the contrary, if it is public, the organization Courts understand what document types in does everything it can to make it as easily and what case types are most likely to contain inexpensively available as possible. It is either content that should not be public. Typical public or not. The idea of sort of being public, but examples include depositions in guardianship only to the right people for the right reasons, is an or mental health cases with children and lists oxymoron. That is the definition of limited access. of assets in probate cases. Many states already separate court documents in juvenile cases into A more appropriate policy response would be a public category and a confidential set, satis- to simply make certain documents no longer fying both the desire for the court to appear public, including at the courthouse. Courts are open and the need to protect the privacy of loathe to do this because it then becomes juveniles appropriately.

A Contrarian View of Two Key Issues in Court Records Privacy and Access 55 What Is Wrong with Filer Redaction Liability? It is very unlikely that many courts The possibility Redaction of inappropriate content from will be able to afford of significant documents filed with the court has been a the cost of automated harm from serious problem ever since electronic filing began. redaction. Most access to personal, Again, the qualitative change is not that filers courts cannot afford financial, and suddenly started adding inappropriate content, to spend hundreds of victim information but that that content became both more widely thousands of dollars is substantive. available and much easier to find. The possibility to partially redact of significant harm from access to personal, sensitive information. For courts with significant financial, and victim information is substantive. volumes, replicating that capability manually is equally impossible because of staff and budget limitations. Ironically, very small courts might find it less costly to simply have a court clerk review every single document that comes in the door, but most courts cannot afford to do this. Perhaps the costs will come down once a more mature market develops, but this will likely take time and is partly dependent on courts better standardizing their documents and privacy policies. In the early days of court e-filing, clerks tried to review documents at the time of filing for such The now common solution to these problems is to sensitive information. They had no ability to redact specify the types of information that are sensitive the documents, but they could sometimes reject and require all filers to redact such content before them outright or tactfully suggest re-filing with filing documents with the court. All liability for alterations. This was, of course, a very time failing to do so explicitly falls on the filer. What and resource intensive approach that would not could go wrong with this approach? Well, filers scale in most courts and was legally dubious. are human and often simply make mistakes. In many courts, roughly half of the filers are The next strategy was to use automated self-represented litigants, and many of these have redaction, either as a pure solution or as part never filed a case in a court before. They routinely of a hybrid solution. Perhaps the best known make mistakes that no lawyer would make, and example of this approach is the partnership that includes the inclusion of inappropriate in Florida between Mentis and the Manatee and impermissible document content. County Clerk. They spent well over a million dollars developing the initial capability, and the It does not seem like good public policy to ongoing redaction fees will continue to be very “solve” a problem simply by pushing liability expensive. Even after all that, clerks must still off on parties outside the court. It may prevent manually review all documents for sensitive the court from being sued for failure to protect information that the redaction software is sensitive information, but it certainly does not incapable of automatically identifying in a prevent harm for people interacting with the reliable way. court—sometimes involuntarily so.

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Experts on court privacy and access are well aware Thus, we have ended up with access rules in of these problems, but for years have been stumped many jurisdictions that cannot be successfully as to how best to mitigate or completely solve them. and reliably implemented or enforced using The answer lies partly with how the access rules automation. In theory it would be possible are defined and partly with how private industry to determine what automation capabilities provides the courts with the capabilities they need. currently exist, which rules exceed those capabilities, and what modifications would be In most, if not all, other industries, regulatory necessary to match the capabilities with the rules and procedures are developed using a fairly rules. Other industries routinely settle for less standard process. Some responsible agency drafts ambitious or less ideal rules in the short run the rules and publishes them for review and when it becomes clear that current capabilities comment. Most comments focus on two very have been exceeded. There is important issues. The first is the extent to which often an explicit process to revise While at least the rules can be practically implemented and the rules as capabilities improve two court vendors enforced. The second is the extent to which the and even to foster targeted currently offer estimated benefits exceed the estimated costs. efforts to ensure that the needed products that capabilities get developed. perform automated When there are problems with practical redaction, those compliance, the response is usually to revise The courts could do this too, products cannot the rules so that they become possible to but they have not done so. reliably meet implement successfully. The ideal gives way to Court vendors, like all for-profit requirements that the possible. Proposed rules where the costs companies, respond to the market are commonly outweigh the benefits are either rejected or with capabilities that their specified in court revised to lower costs and raise benefits. The customers request in sufficient access rules redaction problem is a classic case of doing volume to justify developing a and policies. neither. Why has this happened? product. While at least two court vendors currently offer products that perform Courts typically draft, comment, and automated redaction, those products cannot implement rules via a process that mostly or reliably meet requirements that are commonly entirely involves judges and lawyers. Judges specified in court access rules and policies. and lawyers typically have no professional training in technology and usually no role in Courts have done nothing to help industry the practical aspects of court administration. understand what that gap is and what it would They compose court access rules in response take to close that gap. There appears to be a to legal considerations, often with limited disconnect between the lawyers and judges public input. It is safe to say that they often making the policies and the court technolo- have no idea if those rules can be automati- gists and IT vendors who need to automate cally enforced or not. Further, they may not them. Insufficient attention was devoted to care if automation is impossible or unreliable, identifying what business processes would be thinking that either the court staff can needed and what costs would be incurred to manually resolve any exceptional problems ensure that the policies were reliably enforced. or filers can simply be ordered to comply.

A Contrarian View of Two Key Issues in Court Records Privacy and Access 57 Some Possible Lessons Learned documents public and limiting the available public documents to only certain “worthy” It has become a truism of the modern world roles may work in the short run, but probably that younger people view their personal not in the long run. privacy differently and much more laxly than older adults. Regardless of age, there is also The gap between court access rules and a common belief that the public wants and automation capabilities causing the current expects easy and broad access to information, redaction problem is symptomatic of a broader including government information. When the issue. Courts are making an unprecedented courts react to business problems associated transition to an electronic and virtual world, yet with the electronic world by restricting access their business processes and policies have hardly and forgoing the benefits of electronic access, changed at all. Converting manual processes it risks undercutting courts’ legitimacy. to electronic ones without significant change is often called “paving the cow path” with good reason. By doing so, courts forgo significant Courts are making an business benefits from the use of technology. unprecedented transition to an electronic and virtual Lest we think courts are uniquely deficient in this world, yet their business regard, studies show that all industries often take processes and policies decades to fully understand and absorb new have hardly changed at all. technologies and reap the business benefits. In a government environment without competition, with significant penalties for risk taking, In fact, a 2014 national poll by the National and with funders who exhibit extremely short Center for State Courts already showed decision horizons, it is not surprising that that a majority of the public does not find massively suboptimal use of technology occurs. the courts managed well enough to justify In courts with partly appointed judges and often investing additional public resources in them, no partisan competition with elected judges, with the primary shortfall being inept use of the problems are frequently even worse. technology. For example, more people now access the Internet via mobile devices than Solving this problem, which is much bigger than with traditional computers, but courts offer the two issues with privacy and access discussed almost no services via mobile apps. Thus, above, may be the threshold moment for solving court access problems by making fewer continued public legitimacy of the U.S. judiciary.

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“The ability to file court documents electronically is an enormous achievement and one that’s bringing a new level of efficiency to Kentucky’s legal system.”

Kentucky Chief Justice John D. Minton, Jr.

A Contrarian View of Two Key Issues in Court Records Privacy and Access 59 ““People will accept judicial outcomes, even if adverse to their side of the case, if they believe that they have been treated fairly and with respect. Put simply, process counts.”

Maryland Chief Judge Mary Ellen Barbera

60 Trends in State Courts 2016 Opening Courts to the Public

Opening Courts to the Public

Public Legal Information as Common Ground for the Justice Community

People’s Law Library Web Content Coordinator, David Pantzer Maryland State Law Library, Annapolis

This article explores how a diverse group of contributors from Maryland’s legal community are coming together to provide the public with free, reliable, neutral explanations of state law. It demonstrates the unique role of public law libraries and suggests steps to increase cooperation and meet the legal needs of the poor.

The Need for Free Public Legal Information adverse to their side of the case, if they believe that they have been treated fairly and with Why should the public have the law explained respect. Put simply, process counts.” A big part clearly to them, free of charge? First, public of that process is simply understanding what understanding goes to the credibility of our they are going through. institutions. Our political tradition suggests that the authority of the government derives Second, whether they want it or not, nonlawyers from the consent of the governed. This is easier often have an active role in their own cases. to say with a straight face when the governed Despite the resourcefulness and commitment are able to understand the law. This responsi- of the legal services community, less than one bility falls to each branch of government. In her quarter of Maryland’s poor have access to February 2015 “State of the Judiciary Address,” a lawyer’s help in addressing legal needs. Maryland Chief Judge Mary Ellen Barbera For this reason, many simply walk into the brought it home to the courts, recognizing that courtroom alone. Others manage to connect “people will accept judicial outcomes, even if with a lawyer beforehand for brief advice.

Public Legal Information as Common Ground for the Justice Community 61 Still others benefit from Maryland’s In Maryland, the statewide website is called the new rule-based mechanism for “limited People’s Law Library, or PLL (www.peoples-law.org). appearances,” in which attorneys and clients PLL is distinctive from many other free-legal- agree to share the legal tasks involved in information resources both in the breadth of its accomplishing client goals, even allowing subject matter (which includes court process, an attorney to represent the client for as little legal research, alternative dispute resolution, and as a single hearing. In all of these cases, a wide array of substantive legal topics) and in the litigants are better served when there are depth of coverage provided in its articles resources to help them navigate the system. (including summaries of the law, links to primary Particularly in the case of limited appearances, and secondary legal sources, and referrals for professionalism suggests that lawyers have an legal services). While the PLL website has its interest in ensuring that limited-scope clients historic roots in the legal academy and the be prepared to succeed in the parts of legal legal-services community, it is currently funded matters they will handle alone. by the judiciary and managed out of the Maryland State Law Library, a court-related agency. Indeed, the court system runs more smoothly when everyone, even those with lawyers, …the People’s Law Library understands how it works. Clear understanding is distinctive from many other of the law and its processes helps prevent all free-legal-information resources litigants from having unrealistic expectations of the both in the breadth of its subject outcomes of their cases. Because many thousands matter and in the depth of coverage of Marylanders appear in court alone each year, provided in its articles… it benefits the self-represented, their opposing parties, court staff, and judges when the expectations of all parties are calibrated to legal reality. A Cooperative Content Development Model

The Statewide Websites PLL’s single greatest strength is the diversity of its contributors. The project of explaining the law, more Helping people to find legal information and than most, can bring just about everyone together. understand the law is a challenging goal, but not a particularly controversial one. Many institutions Instead of leaving the prioritization, research, are already trying to help the public to understand design, and writing of self-help legal information their rights and responsibilities and to access to one organization, PLL actively seeks out the available sources of help, using brochures, the perspectives, and the help, of legal (and hotlines, websites, and apps. nonlegal) professionals from a wide range of Maryland’s institutions. Every state has some form of “statewide website,” providing some level of legal information. The cooperative approach might look like this: Law The scope and coverage vary widely. In many librarians and legal-services attorneys (who deal cases, state sites are maintained by one or with a steady stream of practical legal questions) more legal-services nonprofits. In some states, identify topics for which the public needs better a network of websites, run by various institutions, information. Law librarians and law-school provides a patchwork of coverage. clinical programs have the skills and resources to sketch out this new content, identifying

62 Trends in State Courts 2016 Opening Courts to the Public

relevant laws, documents, and information. period, 59 of PLL’s legal-content articles The experience of practicing attorneys and recorded over 500 pageviews each. Lawyers the perspectives of government employees and can also point clients to articles on the site court staff add additional layers of depth to the as a cost-efficient way to explain basic legal content. After content is written and edited, concepts and create realistic expectations. language students and bilingual attorneys and translators provide non-English versions. Attorneys also use the site. PLL articles provide The Maryland State Law Library organizes quick, detailed entry points for attorneys and maintains the content and coordinates exploring an unfamiliar area of law (perhaps its ongoing review when the law changes. to provide brief advice to pro bono clients). When new content becomes available, public libraries, court staff, and a variety of nonprofit Bar associations: The mission of the Maryland organizations put it in the hands of the public. State Bar Association includes promoting “access to justice, service to the public and Thus, many institutions participate in the project, respect for the rule of law.” Working with PLL to yet each maintains its individual role and enhance public awareness and understanding of perspective within the broader community. the law by updating and promoting PLL’s website directly advances those three components of its Since the beginning of 2015, more than 100 new mission. The Maryland State Bar Association also names have been added to the PLL contributors supports PLL’s mission by promoting opportunities list (www.peoples-law.org/contributors). Because of PLL’s to use and contribute to the site to its members long service to the community, and its active and to local and specialty bar associations. promotion and wide readership, many organizations are willing to provide their expertise in …the mission of the State Bar developing, editing, and contributing to the site. Association includes promoting The examples that follow form a checklist of the “access to justice, service to the types of partnerships that an effective, statewide public and respect for the rule of legal-information source will want to explore. law”…and updating and promoting PLL’s website directly advances Individual attorneys: PLL relies on individual those three components… members of the bar, who offer time and expertise to create and update legal articles. Contributing to PLL is a form of reportable pro bono service that, Law schools: For several years, partnerships in contrast to other equally valuable forms, between PLL and law-clinic courses in several can be performed at any time of day and from Maryland and Washington, D.C. law schools have any location. This avenue of service is regularly provided more new content than any other promoted by the Pro Bono Resource Center of category of partnership. Specific partnership Maryland, the state’s main institutional models vary from school to school, but generally clearinghouse of pro bono opportunities. PLL provides “plain language” training for students, as a supplement to their legal-writing Another attractive aspect of this form of pro coursework. The students work to research bono service is its efficiency. Each article has an issue and create an explanatory article that the potential to help many people over time. is vetted through a series of checks for plain Site analytics show that in a recent one-month language, as well as for content accuracy.

Public Legal Information as Common Ground for the Justice Community 63 www.peoples-law.org

Government lawyers and employees: The judicial branch: PLL’s location within the Traditionally, because of actual and perceived judicial branch is significant, allowing a diverse conflicts of interest, government lawyers have array of institutions and organizations to confi- a harder time than most delivering pro bono dently refer self-represented litigants to the site, services. However, the activities of writing and without fearing content bias. Further, PLL editing clear, neutral explanations of the law and benefits from being based out of the Maryland its processes serves governmental missions and is State Law Library, a statutory institution long virtually conflict-free. The Maryland Office of the identified with free, neutral legal information. Attorney General has enthusiastically supported PLL’s relationship with the judiciary also provides a relationship with PLL, hosting in-house court clerks and other court employees with a trainings for their attorneys and promoting direct voice in shaping content priorities. PLL is service to the site. Other contributors come actively promoted by court personnel, the final from municipal, state, and federal government. interface between the public and the justice system.

The Maryland legal-services community: Universities: PLL has worked as a community A key set of partners comes from the legal partner with translation classes at Towson nonprofits that directly serve the needs of the University and the University of Maryland. poor—Maryland Legal Aid, the Maryland These partnerships allow students to perform Volunteer Lawyers Service, and a host of other real-world work, which will benefit the community, legal-services organizations. PLL provides and provide valuable professional experience. this community with a popular, well-publicized forum for explaining specific legal rights and The library community: Access to public legal procedures to the public. These organizations information is an arena in which public law libraries bring not only expertise, but also tremendous have a leading role to play. Like legal-services knowledge of the current needs of the poor. providers, public libraries regularly field a high

64 Trends in State Courts 2016 Opening Courts to the Public

volume of requests for information and help. working with Maryland Legal Aid However, perhaps even more than legal-services and area law schools to provide providers, libraries are understood to be neutral training to law students spaces, where a landlord or a tenant, a plaintiff or a developing an offline version of its defendant, an appellant, a victim, or a small- materials for non-networked prison business owner can come for information. PLL and libraries the Maryland State Law Library provide training and resources to public librarians to help them Next Steps meet the challenge of responding to these patrons. Each of the institutional relationships This list is not comprehensive. Organizations like this article describes requires trust, PLL may also have much to gain by working with creativity, and ongoing work from schools, businesses, community groups, and both sides. Maintaining this breadth churches. However, each of the institutions and depth of cooperation requires Excerpt from Maryland’s highlighted above contribute significantly to trying new things. Here are some of Peoples Law Library Website PLL’s mission. PLL’s current priorities http://www.peoples-law.org/ for future growth. evaluate-my-situation The Opportunities and Limitations of Technology The PLL Fellows initiative hires two or three graduating law students, or recently PLL is a website. It will likely remain a website as admitted attorneys, annually for temporary long as it exists, or until changes in technology research and writing fellowships. do away with websites entirely. But as this article PLL is improving the non-English-translation shows, PLL’s usefulness is based on its network process with an automated translation of partners and contributors. PLL invites the management program that can track small justice community to join in its legal information units of English text as they are updated project, for the public good. But PLL also extends and prompt for retranslation of those units itself beyond the Web, as a broader educational into target languages. service to Marylanders, by partnering in the justice initiatives of other institutions. Finally, PLL is pursuing deeper coordination with other institutions that provide neutral Such initiatives include: legal information to the public. For example, with help from the Maryland Legal Services partnering with the Pro Bono Resource Corporation, PLL co-maintains a legal services Center of Maryland and the Maryland State directory with the Pro Bono Resource Center Bar Association Section on the Delivery of of Maryland and is working to merge certain Legal Services to make librarians and court legal articles with related materials maintained clerks aware of legal resources by the Maryland Office of the Attorney General.

partnering with the MSBA Section on Family Working with others in these ways provides greater and Juvenile Law and the Administrative efficiency and strengthens the relationships that Office of the Courts Department of Family help the legal community to achieve mutual goals Administration to create educational and improve the quality of justice in Maryland. materials for the public

Public Legal Information as Common Ground for the Justice Community 65 “Courts need people who will lead our new communications effort and understand what a truly great opportunity it is.”

Florida Chief Justice Jorge Labarga

66 Trends in State Courts 2016 Opening Courts to the Public

Opening Courts to the Public

Should I Tweet That? Court Communications in the 21st Century

Chief Justice, Hon. Jorge Labarga Florida Supreme Court Judge, Hon. Nina Ashenafi Richardson Leon County, Florida Senior Court Operations Consultant, Tricia Knox Florida Office of the State Courts Administrator

We live in an age that values transparency—where being open is critical to holding on to and increasing public trust in our branch. If courts are not involved in telling their own important and compelling stories, then the message conveyed may not be accurate, positive, or helpful.

It is not breaking news that changes in the way ways to ensure courts are open, accessible, people connect and communicate are constantly and understandable to everyone. occurring. Courts must deal effectively every day with the impacts of today’s information revolution Today, court communications extend to the Web, to meet evolving public expectations. Managing social media, mobile apps, videos, and print publi- court communications in the always-connected cations, to name a few. The Florida Supreme Court information age of the 21st century requires is seizing the opportunity to meet the needs extensive knowledge and practical understanding of the public and promote transparency for of a broad range of media, communications the purpose of supporting trust and confidence. principles, and emerging technologies, which are Florida has developed a statewide comprehensive increasingly playing central roles in the public communication plan to guide courts when coordi- dialogue. They also provide exciting opportunities nating and organizing communication activities for courts to respond in creative and innovative necessary to the administration of justice.

Should I Tweet That? Court Communications in the 21st Century 67 68 Trends in State Courts 2016 Opening Courts to the Public

Florida’s 2016 Court Communication Plan for the The 2016 Communication Plan’s foremost Judicial Branch of Florida: Delivering Our Message objective is to cultivate trust and confidence sets the framework to improve the public’s in Florida’s court system. The plan addresses perception of courts through education and this in many ways, including: outreach, relationship building, and consistent messaging. The plan represents Florida’s building relationships with key audiences (the commitment to improving public understanding public, court users, the media, state lawmakers, of and support for the judicial branch through justice system partners, teachers, civic improved communication efforts. One example organizations, and the business community); of this long-standing commitment dates back increasing public awareness about court 16 years to the first communication plan for services and performance; Florida’s judicial branch. providing information to court users to ensure Continuing this commitment, Florida’s 2016-2021 understanding of court processes and services; Long-Range Strategic Plan Issue 3: Improve involving the public to improve court processes; Understanding of the Judicial Process addresses judicial branch communication improvements. educating the public about the judicial The 2016 Communication Plan supports this branch by improving outreach efforts; and long-range issue by detailing four key issues: training judges and court staff enhancing public trust and confidence; speaking in media relations. with one voice and using key court messages; improving communication methods; and Local Education and Outreach Program strengthening internal communication. Examples (Strategy I.5.A & B) The plan includes goals, strategies and activities, examples of ideas and “Try This” 2nd Circuit Classroom to Courtroom suggestion boxes, an implementation schedule, a checklist to track achievements, and 9th Circuit Inside the Courts suggested designees responsible for goal and strategy development. This detailed communi- 11th Circuit Local Justice Teaching Institute cation plan is the first of its kind for Florida.

Issue 1: Enhancing Public Trust and Confidence Developing meaningful relationships with key audiences to build support for the judicial branch Try This: Outreach to Local Reporters is imperative. As the first goal of the first issue, (Strategy I.1.B.5) this age-old communication principle is front and center and is essential to any healthy commu- Local Workshop Courthouse Tour nication dynamic. Court leaders in Florida are keenly aware that cultivating relationships can Lunch ‘n Learn Q & A Session lead to trustworthy partnerships. These supportive relationships are not only important to daily work but vital during emergencies and times of crisis. Florida’s Communication Plan offers strategies to build relationships with a wide range of audiences.

Should I Tweet That? Court Communications in the 21st Century 69 Surveys conducted in preparation of the Issue 2: Speaking with One Voice: long-range strategic plan revealed that the KEY Court Messages judicial branch must educate the public about how courts work. Providing opportunities for A critical element of effective communication is students, teachers, and citizens to learn the the development and dissemination of messages role and responsibilities of courts is essential when communicating with others. Whether to develop an informed citizenry. While some communications are addressing routine court courts in Florida have made significant strides matters or special crises, it is important that in local education efforts, many courts lack Florida courts speak with one voice delivering the resources to implement education and outreach same message from Pensacola in northwest Florida programs. The plan addresses the need for a to Key West, the southernmost point in the state. coordinated, strategic education and outreach effort to support all courts in Florida by devel- To understand this concept, Jay Aquilanti, creative oping templates for successful programs director for the Walt Disney Company, worked that can be modified and easily adapted by with the Florida Judicial Management Council any court. Enhancing understanding of the (JMC) to underscore the importance of image, purposes, roles, and responsibilities of the organizational identity, and public perception. judical branch through education and outreach His message was clear: If we coordinate our is a goal of Florida’s 2016-2021 long-range plan. messages, if we are consistent with our messages, we establish a positive presence that strengthens perceptions about the judicial branch.

KEY Court Messages

Utilize existing county-owned space for justice system operations; Message 1 reduce dependence on leased space.

The court system is stongly committed to ensuring fairness and access Message 2 to all people in a timely and responsive manner.

One of the foundations of a democracy is a judicial system that operates Message 3 in an environment where judges remain objective, unbiased, and impartial.

The Florida judicial branch is strongly committed to accountability; Message 4 courts are working to ensure that they are good stewards of public resources.

Message 5 Judges and court employees are committed to the branch’s mission and vision.

70 Trends in State Courts 2016 Opening Courts to the Public

Strategy II.2.A of the Communication Plan states, Garret Graff, former editor of Politico magazine “All official court communication should incor- and author of “Courts Are Conversations: An porate KEY Court Messages as appropriate. Argument for Increased Engagement by Court KEY Court Messages will be used when writing Leaders” (Harvard Executive Session for State press releases, media advisories, responses to the Court Leaders in the 21st Century, 2008-2011), public, comments to the media, talking points, addressed the JMC via Skype and encouraged speeches, presentations, brochures, quotes, members to think of court communication blogs, op-eds, educational and public outreach as a two-way street. He stressed that courts materials, social media messages, web content, should not be afraid of new communication and all other official court communication.” tools, particularly social media. As he asserts in his article, “As a new generation arrives Using KEY court messages consistently across with different expectations for conversations the state in all official court communications is and interactions, courts face a fundamental imperative. Delivering the same message across challenge: How do they listen better to a public all platforms increases trust and confidence in now used to conversing in different ways, on our courts. different platforms, and with different tools?”

Issue 3: Improving Communication Methods Twitter, Facebook, YouTube, and other new media tools can be used to disseminate The 2016-2021 long-range planning surveys relevant information and enhance the public’s discovered another important finding—courts understanding and perception of courts. must do a better job telling their story. Some Florida’s Communication Plan calls for the use media outlets today are only interested in of communications technology and social media judicial scandals or chasing the next trial of to the extent appropriate in judicial settings. the century, and the media of yesterday that Using social media as a communication tool provided fair and balanced reporting has affords courts the opportunity to convey shrunk. As a result, courts must commu- important information beyond newsworthy events, nicate directly to the people about the role and such as judicial appointments or retirements. purpose of the third branch of government. Today, courts can use a broad range of commu- Courts now have the ability to reach audiences nication tools to reach citizens and deliver and connect with people seeking other types the message that the American court system of court information such as high-profile-case resolves disputes, fairly and justly, and that announcements, court performance and judges are performing significant work every statistics, judicial achievements, new court day at every level to carry out the principles of services, education and outreach events, and the Constitution established by our Founding job announcements. Social media presents Fathers. Courts must do the best job possible unique ways to offer the public an inside look to communicate to the people about how at the courts from a different perspective. important our judiciary is.

Should I Tweet That? Court Communications in the 21st Century 71 The Florida Supreme Court was among the first Issue 4: Improving Internal Communication courts to use social media when it established its Twitter feed in 2009. A 2015 Pew Research While much of Florida’s Communication Plan Center study found that Twitter and Facebook focuses on improving external communication, users now use these social-media platforms as a the JMC recognized the need to improve source of news about issues and events outside internal communication efforts. Strengthening the realm of friends and family. Using social- internal communication is essential for an media platforms for community and outreach engaged workforce. events and government information is continuing to rise. The ability and willingness to exchange information is vital in our work environment. Additionally, it is important that communication Improving ways to share information can by all courts be consistent not only with its encourage multidirectional communication, message but also in the manner information increase employee engagement and productivity, is communicated. Ensuring that all courts are and foster a spirit of unity, commitment, and using the same methods, following the same cooperation. The plan assists courts by offering guidelines, and providing the same information simple and practical ideas to support and are goals in Florida’s Communication Plan. strengthen the internal communication process This consistency is designed to improve while encouraging local courts to develop new understanding and reduce misperceptions and creative solutions that work best for them. about the judicial system, which often Solutions include holding regular staff meetings, stem from a lack of necessary information. promoting document sharing on intranet sites Providing consistent Web information, for or shared network drives, developing feedback example, supports transparency, reduces mechanisms for judges and court personnel confusion and frustration, and builds public to express ideas or concerns, and recognizing support for the judicial branch. employee excellence and achievements. While simple, these strategies can boost morale, decrease turnover, and increase employee performance and customer satisfaction.

72 Trends in State Courts 2016 Opening Courts to the Public

Developing a Useful Plan It is up to judges and court leaders To ensure that the Communication Plan is not to deliver the court’s message doomed to sit on a bookshelf and collect dust, and show citizens that our branch the JMC actively sought input from appellate, of government has value in the circuit, and county judges; judicial assistants; everyday life of every citizen. trial court administrators; marshals; public information officers; and other court personnel. Florida is in a unique position thanks to its Many important suggestions were offered and Florida Court Public Information Officers incorporated into the plan, including providing (FCPIO) organization, which first met in 2005. an implementation checklist, adding detailed Court personnel in positions tasked with public strategies and examples of goals, and developing information duties are members of the FCPIO social-media guidelines and communication and represent all trial and appellate courts templates. As a result of this “bottom-up” approach, throughout Florida. The Florida Supreme judges and court personnel have a viable and Court Public Information Office will work useful document that strikes an appropriate with FCPIO members to advance plan goals balance between producing a high-level plan that have statewide impact. This partnership giving little direction and one that is too directive will also provide valuable implementation or dictating from the top down. The plan allows assistance and support at the local level. each court the discretion to determine how to incorporate the goals and strategies based Achieving Justice on local needs and resources. As judges and court leaders, we understand Providing Direction the importance of achieving justice. We must concern ourselves that the people and commu- Assigning the Communication Plan to an nities we serve routinely see that courts are existing office will provide the accountability truly achieving justice. It rests in the principle and stability needed to ensure success. of law we are familiar with, “Not only must The Florida Supreme Court Public Information justice be done; it must also be seen to be done.” Office has the responsibility of directing We must effectively communicate with the public and sustaining the plan, providing guidance to ensure that all customers of our court system or answers to court personnel when help is and all audiences for court communications needed. This office can effectively manage understand on a daily basis the importance of the plan and coordinate the development of the judicial branch and the determined efforts statewide goals and strategies utilizing the we make to achieve justice. Courts today have knowledge of court personnel throughout the a responsibility to tell their story and to do it in a state. Over the next few years, work will include powerful and compelling way. It is up to judges developing guidelines for various social-media and court leaders to deliver the court’s message platforms, creating communication templates and show citizens that our branch of government for a variety of situations, identifying minimum has value in the everyday life of every citizen. content for court websites, producing statewide educational materials and prototypes for programs, and more.

Should I Tweet That? Court Communications in the 21st Century 73 “The stark reality is that the government, of which the courts are a part, can’t afford to continue operating as it has in the past.”

Alaska Chief Justice Craig Stowers

74 Trends in State Courts 2016 Opening Courts to the Public

Opening Courts to the Public

* This is an edited version of an article that was published Alaska Court System Legal Notice Website* in the Court Manager, vol. 30, no. 4 (2015-16). It is being used here Special Projects Coordinator, with the permission of Alyce Roberts Alaska Court System the National Association for Court Management. Director, Family Law Self-Help Center, Stacey Marz Alaska Court System

Declining readership reduces the effectiveness of publishing legal notices in print newspapers. Alaska’s legal notice website offers a viable alternative for serving notice in lawsuits.

Imagine you filed a lawsuit in court but do not Recognizing the need to respond to a new know where the opposing party is located to societal landscape, the Alaska Court System serve him or her. Instead of paying over $500 changed the default service method for to publish a legal notice for several weeks in a absent defendants from publication in a print newspaper that you doubt the opposing party newspaper to an online posting to the court’s has ever heard of or read, the court allows legal notice website.1 Court rules also permit 1 Absent defendant is the term used when you to serve by other methods. You could other alternate service-delivery methods, the plaintiff is unable to serve the complaint post the legal notice free on the court’s legal including social-networking accounts, after a diligent inquiry as to the defendant’s notice website, which is “Google” searchable email, and online newspapers, in addition whereabouts. from anywhere in the world with an Internet to traditional newspaper publication and connection. Alternatively, if you are in touch posting to bulletin boards. Three factors with the opposing party on Facebook but he spurred these changes: Notice by print or she refuses to provide a current mailing publication was 1) ineffective, 2) expensive address, you could request to serve the notice for litigants, and 3) outdated because of via Facebook. This situation is now reality in increasing availability of information on the the Alaska Court System. Internet and society’s reliance on social media.

Alaska Court System Legal Notice Website 75 History and Process

In 2003 and 2007 there were unsuc- cessful proposals to replace the default method of notice by publication in a newspaper in cases involving name changes and absent defendants, respectively. These proposals lacked data about the ineffectiveness of service by newspaper publication, and newspaper print readership had yet to take a precipitous decline. In 2011 the Alaska Supreme Court changed the diligent-inquiry rule to require “a reasonable effort to search the internet for the whereabouts of the absent party.” Regular mail was also revenues had substantially declined as evidenced added as a requirement, in addition to certified by reports of newspapers shutting down across mail, to address situations where the defendant the country. There was interest in having the court is avoiding service by certified mail. system consider publishing notices to absent defendants and name-change notices on the court’s Recognizing the need to respond to a website. A subcommittee, composed of two AOC new societal landscape, the Alaska staff members and an assistant attorney general, Court System changed the default was formed to explore changes to the publication service method for absent defen- rule and draft a rule-change proposal. dants from publication in a print newspaper to an online posting to The subcommittee met several times and the court’s legal notice website. early on decided to collect data to determine the effectiveness of service by publication. To do this, subcommittee members reviewed In February 2012 the issue of alternate service all cases statewide in which service by publi- arose again. This time it was spurred by a request cation occurred in 2010 and 2011. Excluding from an online newspaper that wanted to be name-change cases, in both years, family-law declared a “newspaper of general circulation” cases represented the majority of cases in which for purposes of publishing legal notices. When service by publication was used. The next largest this matter was introduced, Civil Rules Committee category was debt cases. The remaining cases members immediately raised the issue of the included personal-injury auto cases, real-estate limited effectiveness and high cost of publishing matters, forcible-entry-and-detainer cases, notices in newspapers. The belief was that service and a smattering of other case types. The vast by publication rarely reaches the intended parties majority of notices by publication came from or results in their appearance. In the intervening Anchorage cases, with almost all other notices time since the idea was first considered in 2007, coming from courts in larger communities and print-newspaper readership and advertising almost nothing coming out of rural Alaska.

76 Trends in State Courts 2016 Opening Courts to the Public

However, service by publication in a newspaper Service by publication rarely would still be an option a litigant could request if reaches the intended parties or the litigant has reason to believe that this would results in their appearance. be an effective method of service. The Civil Rules Committee unanimously recommended to the The subcommittee looked at all the cases in which Alaska Supreme Court changes to the relevant service by publication was granted (excluding rules providing the default method for service name-change cases). A default judgment was to be posting on the court system’s legal notice entered in almost all cases; a handful of defendants website. The supreme court adopted the responded, and in only three cases could the recommendation, with minor stylistic edits, defendant’s participation be possibly attributed effective October 14, 2014. to effective notice by publication. Rule Changes The subcommittee also researched the costs to publish in newspapers of general circulation. The Alaska Supreme Court amended two The costs varied based on the length of the rules that authorize posting to the court’s notice and the individual newspaper’s fees, legal notice website. Civil Rule 4(e) replaces but always exceeded several hundred dollars. newspaper publication as the default method of “other” service with posting on a new, Google- Subcommittee Findings and Recommendations searchable legal-notice site accessible from the court system’s home page. Civil Rule 84 The analysis revealed: replaces newspaper publication as the required method of publicizing a name change with the number of cases in which service posting on the court website. In adopting these by newspaper publication occurs; changes, the supreme court considered the the vast majority of notices served by limited efficacy and high cost of newspaper publication in a newspaper occur in larger publication, the evolving role of newspapers communities and not rural communities; in many communities, and the development of other platforms to reach people. the defendant response rate was incredibly low, making a strong case that service by newspaper publication is an ineffective method to notify parties of lawsuits against them; and …the supreme court considered service by publication is costly for litigants. the limited efficacy and high cost of newspaper publication, the evolving From this analysis, the subcommittee concluded role of newspapers in many that the current default practice for attempting to communities, and the development serve notice on absent defendants was ineffective of other platforms to reach people. and expensive. The subcommittee recommended to the Civil Rules Committee that the court system create a legal notice website and change the default method to posting on the website.

Alaska Court System Legal Notice Website 77 Civil Rule 4(e)—Other Service Forms

The supreme court changed Civil Rule 4(e), which To facilitate use of the alternate service process, governs service when, after diligent inquiry, the administrative office created new forms using a party cannot be served. Revised Civil Rule 4(e) plain language and amended existing forms. retains the mailing requirement, requires posting These forms are available on the court’s website. on the court website, and provides for additional service by other methods in the court’s discretion. Legal Notice Website The additional service methods in Rule 4(e)(3) include service to an absent party’s email, posting After the rules were adopted, the court’s to the absent party’s social-networking account, technology department began website devel- publication in a print or online newspaper, physical opment to ensure the site would be operational posting, or any other methods that the court when the change went into effect three months determines to be reasonable and appropriate. later. The goal was to develop an automated process that would require minimal data The amended rule requires that the party seeking entry by court clerks and reduce the potential to use an alternate service method discuss in the for data-entry errors. As such, the decision affidavit of diligent inquiry whether other methods was made to harness the power of the case of service listed above would be more likely to management system and pull existing case give the absent party notice. Website posting data to populate notices to the extent possible. and mailing is just the minimum service effort required. If other service options exist that are Notices for certain case types (such as name better calculated to provide notice in a given case, changes and divorces with an absent spouse when the rule encourages the court to explore them. only ending the marriage is at issue) include static information as to the nature of the action and the Civil Rule 84—Change of Name relief sought. For these case types, the case- specific information (case number, parties’ names, The Supreme Court amended Civil Rule 84 hearing date, etc.) is auto populated from the to require that name-change applications and case management system to create the notice. judgments be posted on the new court system legal notice website. The rule no longer requires newspaper publication in every name-change Notice of Judgment—Change of Name case, but the court retains discretion to order publication or posting as appropriate in particular A judgment has been issued by the cases. Child-name-change cases have additional Superior Court in Anchorage, Alaska, in service requirements for parents. Case # 3AN-15-XXXCI ordering that the petitioner’s name will be changed from It is important to note that these rules changes Alyce Simeonoff to Stacey Marz, did not impact case types for which there are effective on the effective date stated in statutory requirements for service by publication the clerk’s Certificate of Name Change. in a newspaper. For example, Alaska Statutes Sample—Auto Populated Notice of Judgment require newspaper publication for notice to creditors when probating an estate.

78 Trends in State Courts 2016 Opening Courts to the Public

In all other cases, the moving party is required posting. Surveys to clerks of court revealed to submit to the court the notice to be served high customer satisfaction with the legal notice on the absent party. The notice must describe website and the elimination of publication specifically the nature of the action and costs in most cases. In addition, clerks the relief sought. The clerk sends a scanned appreciate the ease of the process from the image of the notice in PDF format to an clerical end. Moreover, three clerks of court e-mail address specifically created for posting reported that litigants have appeared after notices to the court’s legal notice website. learning about cases from the legal notice The posting process is automated by using website. Interestingly, these clerks come case-management-system docket entries and from diverse locations—largest urban court, a database for tracking posted notices and a midsized court, and a remote rural court. automatically removing said notices after the posting period is complete (see In 2007 the proposal to create a legal notice www.courtrecords.alaska.gov/webdocs/scheduled/lnwabd.pdf). website to publish notice to absent defendants was deemed too radical an idea. A relatively After completion of the notice-posting period, short time later, however, the importance the clerk prepares and distributes to the and viability of print newspapers in society moving party a “Certificate of Service of had changed dramatically. People rely on Posting to the Alaska Court System’s immediate electronic information and live Legal Notice Website.” When the court their lives online. Courts must stay current and requires other methods of service in addition to provide their customers with options that make posting on the legal notice website, the moving sense in today’s world. The time has come to party must file proof of service using the form reflect the societal cultural shift where online of proof required by the rule. information should be the first approach.

In the first 11 months since the rule permitting legal notice posting has been in effect, 1,924 legal notices have been posted to the website. Less than two months after the website went live, a U.S. District Court judge authorized service by posting on the Alaska Court System’s Legal Notice website in one of its cases. The Alaska Court System has taken the position that it will post Note: The legal notice website was created using legal notices from other existing court resources with no additional expenses jurisdictions and provide (www.courts.alaska.gov/notices/index.htm). a clerk’s certificate of

Alaska Court System Legal Notice Website 79 “Performance measures were the first step in a fundamental transformation of our court system to focus on customer service.”

Michigan Chief Justice Robert P. Young, Jr.

80 Trends in State Courts 2016 Overall Court Improvements

Overall Court Improvements

Michigan’s Performance Measures Improve Public Service

Trial Court Services Director, Jennifer Warner Michigan State Court Administrative Office Statistical Research Director, Laura Hutzel Michigan State Court Administrative Office

This article highlights how the Michigan Supreme Court and the State Court Administrative Office (SCAO) use performance measures to generate critical data to improve service to the public. The pathway to implementation of metrics, barriers to change, and lessons learned will be reviewed.

Michigan’s third branch of government is a In 2011 Chief Justice Robert P. Young, Jr., and his constitutionally created, decentralized, and, colleagues on the Michigan Supreme Court many would argue, byzantine, system of adopted a new approach to making reform a reality. 242 trial courts. In addition to state funding Instead of wholesale, top-down, constitutional for judicial salaries, those trial courts are changes to how Michigan courts were structured funded by 163 city and county governments, and funded, the court worked from the bottom up with 150 different computer systems, 83 and focused on results. This new strategy independently elected county clerks, and 20 intentionally recognized the structural obstacles different case management systems. This to change and created “work-arounds” using the non-unified, 19th-century structure has long legal and administrative tools already in place. hindered reform efforts to increase efficiency and improve service to the public. For years, governors and judicial leaders fought in vain to change Michigan’s constitution to remove some of these structural barriers.

Michigan’s Performance Measures Improve Public Service 81 1991 1998

Supreme court Task force recommends publishes guidelines voluntary measures

The new, grassroots strategy also recognized groups of trial judges and administrators, started that resources were limited, so the court looking at performance measures (and the initial focused on three critical strategic objectives performance measures), specifically reviewing it believed would have the greatest impact: large numbers of performance measures that had been identified by the Department of Justice. measuring performance to improve outcomes The work groups and SCAO encouraged courts to adopt those measures voluntarily. However, implementing technology to increase access only some courts took any action to measure reengineering court processes to be their performance. It was not until 2005 more efficient that SCAO began collecting case-age data. “Until recently, progress on implementation Taken together, these initiatives represent the of performance measures was painfully slow,” heart of the court’s “Driving Change” initiative notes Chief Justice Young. “We needed to to transform the judiciary and to become kick-start the process by making the case for more customer focused and results oriented.1 performance measures with the judiciary and Beyond their intrinsic utility as a management getting judges to buy-in to the process.” tool, this article describes how performance measures are being used to tell Michigan courts’ In 2009, after the National Center for State Courts success stories, provide accountability to the published the ten CourTools, the Michigan public, and help achieve the court’s vision of Supreme Court convened a new work group, the improving service to the public. “Performance Trial Court Performance Measures Committee. measures were the first step in a fundamental This committee of judges and court administrators 1 More information about the transformation of our court system to focus Michigan Supreme Court’s started by testing and “Michiganizing” the “Driving Change” plan and on customer service,” said Chief Justice Young. CourTools to reflect input from Michigan’s results are available here: www.courts.mi.gov/ But even that first step was not simple, easy, or judiciary. Once the trial courts learned that SCAO drivingchange. without its detractors. Five years after adoption intended to publish the case-age data, progress of the new strategy, Michigan’s trial courts can accelerated dramatically. The committee chair, see the value of this process and the benefits 17th Circuit Court Judge Paul Sullivan, has to both the judiciary and the public. stressed repeatedly to his colleagues across the state that their input was critically important to History the successful implementation of performance measures. The promise of publication was a Performance measurement of our courts has been catalyst to engage the judiciary. a long-term project, but one that was given low priority in the early years. In 1991 the Michigan In 2011 the Michigan Supreme Court adopted Supreme Court published guidelines for case an administrative order requiring all trial disposition. In 1998 SCAO, together with work courts to comply with a performance measure

82 Trends in State Courts 2016 Overall Court Improvements

2005 2009 2011 2013

Data collection Work group convenes to Administrative order Annual public satisfaction begins “Michiganize” NCSC CourTools requires compliance survey begins

implementation plan and requiring SCAO to support the courts in this endeavor. That same year, SCAO, through the Trial Court Performance Measures Committee, developed its first implementation plan and required the courts to measure timeliness to disposition, clearance rates, and caseload pending over the time guidelines.

Adoption of First Measures and Court Visits

Once the first measures were adopted, there was a considerable amount of “concern” expressed by members of our trial courts. For example, some judges thought that the data might be used against them in an election. Others questioned the reliability of the data or worried that data would not be an accurate reflection of what happens in their courtrooms. In an effort to ensure that the performance measures data were being used as the management tool they were intended to be, representatives of SCAO began to meet with judges and court administrators to discuss their data and review the trends. This has become an annual process through which SCAO compiles, analyzes, and returns the data to the court in a summary that provides guidance on the areas that may need the court’s attention. Regional administrators and management analysts from SCAO then meet with the judges and court administrators in each court to review performance, highlight successes, and offer resources needed to spur improvement. Every year, SCAO representatives ensure that the court leaders understand the information and have

tools to act on the information.

Michigan’s Performance Measures Improve Public Service 83 In 2015, SCAO representatives met with 351 judges and 296 court leaders during more than These measures enhance the 120 court visits. After each visit, SCAO analysts abilities of judges, administrators, follow-up on any unanswered questions, and trial and supervisors to know, understand, court participants are given an opportunity to and appreciate what is going on provide anonymous feedback through an online in the court, to take corrective survey. This feedback is used to further refine action where needed, and to give the performance process, measures, and tools. appropriate recognition to employees who are performing well. Of the 293 trial judge and administrative participants who completed the 2015 post-visit survey, 84 percent said that the court visit was additional measures in its trial courts: child a good use of their time, and 96 percent said support paid in the month due, public satisfaction, that the SCAO representatives were helpful. recidivism rates for drug and sobriety courts, 2 For details on all The majority of participants agreed that the collections program compliance, and ADA of these measures and explanations measures in the data packet were useful to their compliance.2 The additional measures reassured as to why they matter, please visit court. The following graph shows the percentage court leaders, as well as the State Bar of Michigan, www.courts.mi.gov/ dashboard. of participants who said the performance that SCAO and the Michigan Supreme Court measures were useful to their court. These rates are interested in both the timeliness of case range from 62 percent for the public satisfaction resolution and the quality of customer service. survey results to 88 percent for the case-age rates. But most important, these measures have had a direct impact on court operations. As Judge Additional Measures Sullivan noted, “These measures enhance the abilities of judges, administrators, and supervisors In the years following the adoption of the first to know, understand, and appreciate what is three measures—timeliness to disposition, going on in the court, to take corrective action clearance rates, and caseload pending over the where needed, and to give appropriate recognition time guidelines—Michigan adopted the following to employees who are performing well.”

Usefulness of Performance Measures 88% 83%

70% 66% 62%

Clearane ates Casee ates ul atsaton urve esults Colletons Inormaton Counsel ppontment Inormaton

84 Trends in State Courts 2016 Overall Court Improvements

A Closer Look: The Trial Court Public Satisfaction Survey 2015 Public Satisfaction Survey Isabella County Trial Courts Strongly Agree Strongly Agree Neutral Disagree Disagree Strongly Not Applicable While each data-based (Shade ONE circle for each statement.) ● 5 4 3 2 1 NA 1) I was able to get my court business done in a reasonable amount of time today. o o o o o o measure has proven 2) I was treated with courtesy and respect by court staff. o o o o o o to have a specific If you ATTENDED A HEARING OR TRIAL TODAY, please answer the following questions. 3) The way the case was handled was fair. o o o o o o utility in helping courts 4) The judge/magistrate/referee treated everyone with courtesy and respect. o o o o o o improve operations, If you are a PARTY to the case, please answer the following 5) The outcome in my case was favorable to me. o o o o o o the Trial Court 6) As I leave the court, I understand what happened in my case. o o o o o o Public Satisfaction 7) What type of case brought you to the The court is committed to being fair and not discriminating on courthouse today? (Shade ALL that apply.) the basis of race, color, sex, or national origin. Completing the information below is optional; however, your response will help Survey has provided o Child protective us determine if we are successful. o Civil matter 9) What is your gender? an even wider range o Criminal/probation o Male of benefits. Developed o Divorce/custody/support o Female o Drug/sobriety court o Other by the Trial Court o Estate/trust o File papers 10) How do you identify yourself? (Shade ALL that apply.) Performance Measures o Get information o American Indian/Alaska Native o Guardianship/conservatorship o Asian Committee, this survey o Juvenile delinquency o Multiracial/biracial of court customers o Landlord/Tenant o Black/African American o Make a payment o Hispanic/Latino —including parties o PPO o White/Caucasian o Small claims o Other (please specify) to cases, lawyers, o Traffic/Ticket witnesses, and jurors— o Other (please specify) 8) Who are you? (Shade ALL that apply.) gives the public the o Party (Plaintiff/Defendant) opportunity to weigh o Agency Worker o Attorney/prosecutor in on their experiences o Family/friend of party to case o Juror in local courts. o Witness o Other (please specify) 11) Additional comments or suggestions about today's visit (use back if necessary): After preliminary pilots proved successful, for a period of one week in 2013 every trial court in the state distributed a Like initial efforts at performance measures, paper survey to every person who came many court leaders were concerned with into the court. The paper surveys were sent to what the surveys would reveal. As indicated by SCAO for compilation and analysis. In the first the following graphs, however, it is clear that year the courts collected over 21,000 surveys; Michigan courts are performing consistently in 2014, more than 26,000; and in 2015, more at a very high level of public satisfaction. than 25,000. All courts have now conducted The vast majority of court users say our courts the survey three times, and nearly 75,000 were accessible, timely, and fair, and that they Michigan court users have been polled. were treated with courtesy and respect.

Michigan’s Performance Measures Improve Public Service 85 Public Satisfaction Survey Results Looking at the data over three years, nearly 90 percent were able to get their court business done Agree or Strongly Agree Neutral in a reasonable amount of time, and 93 percent Disagree or Strongly Disagree were treated with courtesy and respect by court I was able to get my court business done staff. Of those who attended a hearing or trial, in a reasonable amount of time today. 83 percent said that the case was handled fairly, 85% 86% 87% and 89 percent indicated that the judge, magistrate, or referee treated everyone with courtesy and respect. Of the parties to a case, 87 percent understood what happened in their case. 9% 6% 8% 6% 8% 6%

I was treated with courtesy and respect by court staff. 94% 93% 93%

4% 2% 4% 3% 4% 2%

The way the case was handled was fair.

81% 82% 83%

Moreover, looking more closely at whether cases

11% 8% 10% 7% 10% 6% were handled fairly, only 6 percent of respondents had concerns about the fairness of the process. Clearly, most individuals who come before the The judge/magistrate/referee treated court recognize the difference between a favorable everyone with courtesy and respect. outcome and a fair proceeding. “The public 89% 89% 89% sentiment regarding the fairness of the proceedings, despite their case’s outcome, is truly remarkable,” notes Chief Justice Young. “And asking the public what it thinks about the services 7% 4% 7% 4% 7% 4% we provide reminds every court that they must be accountable to the people they serve—every day.” As I leave the court, I understand what happened in my case. The data from the public satisfaction survey 87% 87% 85% have been a useful tool for both identifying where customer service needs to improve and educating the public and our local funding

9% 6% 8% 5% 9% 4% units about the quality of the services provided by their trial courts. “I think it has really

86 Trends in State Courts 2016 Overall Court Improvements

helped us secure a willing ear that in the The resulting performance data help local court past we have not had,” explains Judge Sullivan, leadership recognize staff for successes, prioritize regarding the impact of performance measures areas for improvement, develop action plans, data on court relations with their funding units. and measure results. This constant cycle will lead to a state of high-performing courts with Public Transparency continuously improving service to the public. Proving to courts that these data would not be The data from performance measures are not just used against them, and showing that it could useful to courts seeking to improve service to be of actual help to their efforts at change, the public. The data also promote transparency, reform, and improvement, was lesson #2. and public access to this information is critical to making sure courts take action to ensure The resulting performance data help the highest level of service. To ensure the local court leadership recognize public has access to information about its trial staff for successes, prioritize courts and to assist the trial courts in making areas for improvement, develop the information available, SCAO established action plans, and measure results. individual webpages for each trial court where performance measurement data at the Lesson #3 proved to the public, Michigan’s statewide and local court level are posted. legislature, and the Michigan judiciary itself that great change and streamlining could Lessons Learned and the Future of occur in court processes, without negatively Performance Measures in Michigan affecting service to the public. Over the last five years, the Michigan Supreme Court Michigan’s earnest commitment to performance implemented new technological processes, measurement is relatively new but yielding reduced the number of chief judges by positive results. Our goal is to continue to combining governance among trial courts, and improve court performance, in partnership demanded greater coordination and cooperation, with trial courts, and to implement at least one all while trimming 27 judgeships—more than new measure each year. To this end, four more any other state. Despite all of this change, we court performance measures were piloted in can prove that public satisfaction remains high. 2015, and the goal is to adopt and fully implement one or more of these measures in 2016. This Chief Justice Young concludes: “Clearly, this process of testing new measures ensures a steady is a win-win scenario. Taxpayers win because stream of input from judges, administrators, and public resources are saved. Court users win staff so that new measures have proven their because performance measures are helping utility before full implementation. Clearly, lesson Michigan courts become more efficient and #1 is that the success of performance measures customer-focused. And local trial courts win is inexorably linked to buy-in from local courts. because performance measures help them to prove the efficacy, importance, and acceptance Through effective communication and consistent of their work in their local communities. focus, the Michigan Supreme Court believes That’s how we plan to achieve our goal of that performance measures have become making Michigan’s judiciary a national model fully integrated in court operations statewide. of efficiency and service to the public.”

Michigan’s Performance Measures Improve Public Service 87 “…procedural reforms are necessary to ensure that our state civil courts do not perpetuate inequality in the guise of justice.”

Hannah E. M. Lieberman and Paula Hannaford-Agor

88 Trends in State Courts 2016 Overall Court Improvements

Overall Court Improvements

Meeting the Challenges of High-Volume Civil Dockets

Executive Director, Neighborhood Legal Hannah E. M. Lieberman Services Program, Washington, D.C. Director, Center for Jury Studies, Paula Hannaford-Agor National Center for State Courts

Consumer-debt-collection, landlord/tenant, small-claims, and contract cases involving relatively small amounts comprise almost 80 percent of civil caseloads. This essay examines the challenges associated with high-volume civil dockets and summarizes recommendations to address these challenges and strengthen the integrity of the civil justice system.

Much of the focus of civil justice reform over Complex tort and contract cases certainly pose the past two decades has been on reducing tremendous challenges for judges and lawyers. the costs and delay associated with complex A new study by the National Center for State tort and commercial-contract cases. Critics Courts (NCSC) suggests, however, that state have complained about spiraling costs of court policymakers may have missed the forest e-discovery, the reliability of expert evidence, for the trees. The protracted and expensive abusive discovery practices, and the legal and civil cases that have dominated discussions managerial complexity associated with class about civil justice reform comprise only a small actions, mass torts, and multijurisdiction proportion of civil cases filed in state courts each litigation. State courts have responded with new year. Instead, the majority of civil cases are rules, administrative orders, pilot programs, consumer-debt-collection, landlord/tenant, and case management techniques intended small-claims, and small-contract cases. Nearly to rein in costs, reduce disposition time, half of these cases are filed in limited-jurisdiction and improve litigant satisfaction. courts, often on high-volume trial calendars that

Meeting the Challenges of High-Volume Civil Dockets 89 Excessive cost and delay are not the Caseload Composition, Landscape of predominate challenges in [consumer- Civil Litigation in State Courts (2015) debt-collection, landlord/tenant, Contrat et Colleton 24% small-claims, and small-contract] Contrat anlorenant 19% cases. Instead, it is ensuring due mall Clams 16% process and just outcomes for Oternnon Cvl 12% cases in which large majorities of ll Oter Contrat 11% defendants are unrepresented and Contrat ortae orelosure 11% lack access to accurate information ort 7% about court procedures. eal ropert 1%

put a premium on expedited case processing. characteristics and outcomes in nearly 1 million Excessive cost and delay are not the predom- nondomestic civil cases disposed in ten urban inate challenges in these cases. Instead, it is counties between July 1, 2012 and June 30, 2013 ensuring due process and just outcomes for (Hannaford-Agor, Graves, and Spacek-Miller, cases in which large majorities of defendants 2015). Contract cases comprised nearly are unrepresented and lack access to accurate two-thirds of civil caseloads (64 percent), information about court procedures. In this essay, and small claims and “other civil” comprised we summarize key findings from The Landscape another 28 percent (16 percent and 12 percent, of Civil Litigation in State Courts and describe the respectively). Tort and real-property cases, unique challenges that these cases pose for courts in contrast, comprised only 7 percent and and for litigants. We conclude with recommenda- 1 percent of civil caseloads, respectively. tions about effective steps that courts can take Most of the courts that participated in the to improve access and fairness for litigants. Landscape study identified debt-collection, landlord/tenant, and mortgage-foreclosure The Landscape of Civil Litigation in State Courts cases as subcategories of their contract cases. Nearly one-fourth of all civil cases were In 2013 NCSC undertook a study of civil cases debt-collection actions. Nearly one in five to inform the deliberations of the Conference of were landlord/tenant actions. Combined, Chief Justices (CCJ) Civil Justice Improvements debt-collection, landlord/tenant, and small-claims Committee. This study, The Landscape of Civil cases comprised almost two-thirds of all civil Litigation in State Courts, examined case cases (58 percent) in the Landscape study.

Judgment Awards, by Case Type and Percentile Mean Awards $12,767 $4,500 $4,551

t t t t Landlord/Tenant Small Claims Debt Collection

90 Trends in State Courts 2016 Overall Court Improvements

Dispositions, by Case Type

eault or nspee ument smsse ettlement uate sposton Oternnon Debt Collection Landlord/Tenant Small Claims

Debt-collection, landlord/tenant, and small- Finally, defendants in these cases were claims cases share a number of characteristics. overwhelmingly unrepresented, while plaintiffs Their monetary value is quite modest. were overwhelming represented by attorneys, The average debt-collection award was only even in small-claims cases. Serious knowledge $12,767. This average is skewed upward by and power imbalances between plaintiffs and a few relatively large judgments; less than defendants can undermine procedural and 10 percent of debt-collection judgments substantive legal protections. Defendants are exceeded $16,000, and less than 3 percent almost by definition persons of limited means, exceeded $40,000. The average judgment for often hampered by limited literacy, limited landlord/tenant cases was $4,551, and the English proficiency, distrust of an intimidating average small-claims judgment was $4,500. system, or cognitive impairments, including mental illness. Coming to court may mean Very few cases were ultimately disposed losing wages, finding child care, or incurring through an adjudicatory proceeding, transportation costs. Generally, unrepresented such as a bench trial, jury trial, or summary defendants face attorneys whose business model judgment. Settlements occurred in no is based on processing huge numbers of cases more than one in ten cases. Instead, most with limited effort and whose insider knowledge cases resulted in a default or otherwise often enables them to achieve one-sided outcomes unspecified judgment or were dismissed through defaults or onerous settlements. After administratively. Most cases received little, securing a judgment, plaintiffs’ lawyers are if any, judicial attention. able to evict, garnish wages, and seize assets.

Percentage of Litigants Represented by Counsel, by Case Type 98%

80% 76%

16% 13% 13%

et Colleton anlorenant mall Clams Plaintiff Defendant

Meeting the Challenges of High-Volume Civil Dockets 91 As background checkers comb court records Inadequate pleading. In debt-collection cases for prospective employers and landlords, a in particular, complaints are often riddled civil judgment, even one obtained improperly, with serious flaws, including erroneous facts, jeopardizes basic necessities. time-barred claims, or identification of the wrong person. Studies show that stricter Distinctive Challenges Associated pleading requirements result in fewer defaults with High-Volume Dockets (Hannaford-Agor et al., 2013).

A number of studies by government entities, Insufficient litigant information. Unrepresented academicians, and investigative journalists litigants lack the knowledge to navigate court have documented widespread problems in processes effectively or efficiently, frustrating high-volume dockets. the litigant and court staff. Frontline court staff often lack the time, training, or mandate Inadequate service. Recurrent examples of to help litigants identify claims, preserve massive, systemic fraud have been documented defenses, or present their facts effectively. The in which defendants were not properly served absence of a court-annexed resource to provide and only discovered the lawsuit when faced legal advice, as opposed to generic information, with garnishment, asset seizure, eviction, or means that pro se litigants do not receive a judgment that appeared on a credit report. guidance tailored to their circumstances Studies show that many of these defendants (Greiner, Pattanayak, and Hennessy, 2013). have good-faith defenses; indeed, a defendant’s The challenges presented by the high numbers appearance alone may result in dismissal of unrepresented litigants call upon courts to (Spector, 2011; MFY Legal Services, 2008). reexamine traditional models, including the resources they provide, the functions staff perform, and the skills expected of court personnel. 92 Trends in State Courts 2016 Overall Court Improvements

Confusing, chaotic courtrooms. In high-volume accounts. Debt on the unpaid judgment dockets, large numbers of cases are often continues to grow and blights future opportunities. scheduled for the same time. Docket calls in crowded courtrooms are often fast-paced and Addressing Distinctive Challenges hard to hear and understand. Default judgments are often sought and entered quickly after a Both the Federal Trade Commission and the defendant does not respond. Wait times before federal Consumer Financial Protection Bureau a case is called can be extremely long. (CFPB) have documented the pervasiveness of these problems (Federal Trade Commission, 2010). Hallway settlements. Attorneys who regularly The CFPB is expected to issue rules and handle landlord/tenant or consumer-debt cases guidance, which may reduce some of the problems may occupy desks or places in the well of the generated by collection-related practices. court, hallways, or public areas adjacent to the However, there are opportunities for courts courtroom. Their positioning may suggest that to change their operations, rules, and culture they have an official court role; litigants may to substantially reduce inequities and abuses. unnecessarily acquiesce to opposing-counsel demands because they mistakenly assume that Improve service of process and other the attorney is connected to the court. Studies notifications.Technology, increased regulation, have documented repeated instances of lawyers and oversight can substantially improve effective violating the ethical rules or misrepresenting the notice and accountability regarding service law in “hallway negotiations” (Greiner, Jiménez, of process. Verification through the use of and Lupica, 2015; Baldacci, 2006; Fox, 1996). inexpensive, common technology, such as GPS Because plaintiffs’ attorneys dominate the records and smartphone photographs, can help courtroom colloquy, judges may not become servers document the accuracy of their work and aware of facts that would call the fairness of prevent fraud. Modest additional notification a hallway-negotiated settlement into question. requirements, as well as penalties for improper service or failure to adhere to bonding or Litigation pitfalls. Often, the debt buyer’s licensing requirements, may also reduce the counsel, who does not expect to actually litigate, likelihood of sloppy or fraudulent service. seeks a continuance if a defendant appears. Electronic notification for persons with known Each time the defendant comes back, the and verifiable email addresses may be an plaintiff’s counsel may seek a continuance, effective alternative to outdated and more until the defendant misses a date, at which expensive forms of service. time the lawyer seeks a default judgment. Require adequate pleading. Standardized At trial, unrepresented litigants are often complaint forms and required initial disclosures stymied by unfamiliar vocabulary, unable to could include mandatory fields to safeguard overcome evidentiary objections, and unable to against the most common, recurrent defects in conduct effective examinations or have documents initial filings and demonstrate standing, timeliness, admitted. Judges, afraid of seeming to be coaching accuracy of the claim, and the legitimacy of or favoring one side, may be reluctant to guide the venue. Standardized answer/counterclaim forms, litigant to elicit facts that prove legitimate defenses. such as those a number of courts currently With judgment in hand, creditors proceed to make available, help unrepresented defendants garnish wages, seize assets, and attach bank preserve common defenses.

Meeting the Challenges of High-Volume Civil Dockets 93 Provide accessible and meaningful legal assistance to unrepresented persons. Courts should not coerce defendants Legal assistance, not just information, should into settlement negotiations or be available to guide unrepresented litigants discourage them from presenting at every stage of the litigation. Courts need their case to the judge. to take responsibility for ensuring that such assistance is readily available. “Court Navigator” programs could assist Remote access. Opportunities for remote unrepresented litigants in hallway access for filing papers online, obtaining settlement discussions. Letting litigants assistance, and, in appropriate circumstances, know the limits of permissible negotiation conducting hearings or conferences online can and providing opportunities for complaints reduce the cost and burden for litigants and may also deter improper conduct. However, lawyers, particularly those in rural communities. responsibility for overzealous lawyering Courts can work with other stakeholders, is also the responsibility of the bar. including legal-aid organizations and law Local bar associations should consider schools, to provide clinics, workshops, and adopting methods for ensuring adherence assistance in the community. to established ethical rules.

Control the conduct of attorneys in the Language access. Every communication or courthouse. Clear separation of counsel from point of contact with the case or court, including court personnel and services, clear signage, signage and court forms, should be provided electronic sign-in, and staggered appearance times in English and the language of any significant are simple changes that will reduce confusion. non-English-speaking population. Every court should have access to interpreter services. Settlement may be appropriate in cases in which the defendant understands the facts and claims, Judicial training. Judicial training can as well as the availability of defenses, and can incorporate guidance to judges for appropriate therefore make meaningful decisions regarding ways to guide the fact-finding process in cases settlement; but courts should not coerce with unrepresented litigants. Guidelines could defendants into settlement negotiations or include explanations of the trial process; discourage them from presenting their case the elements of claims and defenses; burdens to the judge. Courts can provide standardized of proof; a focus on assessment of evidentiary guidelines for litigants and counsel regarding weight, rather than technical admissibility; how settlement discussions are to be conducted acceptance of narrative testimony; and ways at the courthouse and the consequences of to elicit germane information. settlement. Standardized settlement-agreement forms could incorporate explanations to prevent overreaching. Before accepting settlements, judges should ascertain that both parties understand the agreement. Their inquiry could follow a standardized set of questions and protocols to avoid an appearance of partiality.

94 Trends in State Courts 2016 Overall Court Improvements

Protection against improper default Greiner, D. J., D. Jiménez, and L. R. Lupica judgments. It is inevitable that, even with the (2015). “Engaging Financially Distressed reforms outlined above, courts will continue Consumers,” Federal Reserve Bank of Boston, to be faced with claims to which no defense Community and Banking (summer), p. 23. has been entered. Simple, standardized forms can also be developed to require that default Greiner, D. J., C. W. Pattanayak, and J. motions are not granted unless the supporting Hennessy (2013). “The Limits of Unbundled documentation reflects adherence to procedural Legal Assistance: A Randomized Study in a and substantive standards and that the amount Massachusetts District Court and Prospects sought is documented and appears accurate. for the Future,” 126 Harvard Law Review 901.

* * * * * Hannaford-Agor, P., N. L. Waters, C. G. Lee, and S. Keilitz (2013). New Hampshire: Impact of Procedural court reform will not level the the Proportional Discovery/Automatic Disclosure playing field nor provide all civil litigants (PAD) Pilot Rules. Williamsburg, VA: National who want and could use a lawyer with one. Center for State Courts. Nor will it alleviate systemic problems that require a legislative response. But serious Hannaford-Agor, P., S. Graves, and S. Spacek- procedural reforms are necessary to ensure Miller (2015). The Landscape of Civil Litigation that our state civil courts do not perpetuate in State Courts. Williamsburg, VA: National inequality in the guise of justice. Center for State Courts.

References MFY Legal Services (2008). “Justice Disserved: A Preliminary Analysis of the Exceptionally Low Baldacci, P. R. (2006). “Assuring Access to Appearance Rate by Defendants in Lawsuits Justice: The Role of the Judge in Assisting Pro Filed in the Civil Court of the City of New York.” Se Litigants in Litigating Their Cases in New Report, Consumer Rights Project, New York. York City’s Housing Court,” 3 Cardozo Public Law, Policy and Ethics Journal 659. Spector, M. (2011). “Defaults and Details: Exploring the Impact of Debt Collection Federal Trade Commission (2010). Repairing Litigation on Consumers and Courts,” 6 a Broken System: Protecting Consumers in Debt Virginia Law and Business Review 257. Collection Litigation. Washington, DC: Federal Trade Commission.

Fox, E. L. (1996). “Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation,” 1 Harvard Negotiation Law Review 85.

Meeting the Challenges of High-Volume Civil Dockets 95 “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Thomas Jefferson to Thomas Paine, 1789.

96 Trends in State Courts 2016 Overall Court Improvements

Overall Court Improvements

Revitalizing the Jury

Executive Director (ret.), Program Resource Development, Victor E. Flango National Center for State Courts

Juries play a dual role as fact finders and arbiters of community standards. With the rise of technology for resolving disputes over facts, the jury’s focus should be transformed from fact finding toward adapting justice to community standards, including the desired level of proactive law enforcement and the severity of sanctions.

What comes to mind when one thinks of the Ordinary citizens, as jurors, play a key word court? Is it not the image of the trial, more decision-making role in trials. Abramson particularly the criminal trial? Lawrence M. noted: “Perhaps no other institution of Friedman (2004) provides a sharper mental image: government rivals the jury in placing power so directly in the hands of citizens” (1994: 1). [T]he jury sits in its box, the judge sits on his or Jury trials are not only an essential component her high bench in a robe with an American flag in of court decision making but also one of the the background, the witnesses…raise their right key sources of public trust and confidence hands and swear; the lawyers and the defendant in the American justice system, especially sit at tables facing the judge…. The trial itself is among minorities (Lindsay, 1999; Roberts long, tense, and full of excitement…. Then the and Hough, 2009). judge instructs the jury, the jury retires to a locked room, and a spine-tingling period of waiting The very legitimacy of courts rests partially begins. Finally, the door opens, a hush comes on the participation of the public, and the jury over the crowd in the courtroom, and the jury is a very valuable point of contact between the comes in and announces its verdict. public and the courts. Several empirical studies

Revitalizing the Jury 97 have shown that participation in jury trials is one of the most important sources of the legitimacy of courts themselves. TRANSPARENCY Transparency is the foundation for government and essential to its administration. With its use of citizens as decision makers in public proceedings, jury trials are one of the highest forms of transparency within the justice system.

Jury Trials Are “Vanishing”

A “State-of-the-States” survey that disputes must be resolved by published in 2007 estimated Jury trials are not mediation or binding arbitration that 148,558 jury trials are only an essential (Stipanowich, 2004). Literally conducted annually in the component of court millions of consumer disputes United States, but there has decision making but formerly resolved by courts are been such a “precipitous decline” also one of the key now handled by online dispute in the number of trials over sources of public resolution services (Tyler, 2004). the past several decades that trust and confidence This leaves state courts with Marc Galanter’s (2004) term in the American jus- lower-value contract and “vanishing trials” has entered tice system… small-claims cases, rather the popular lexicon. This than higher-value commercial decline includes jury trials. and tort cases, and most of Most jury trials are criminal trials (47 percent these were disposed though an administrative felony and 19 percent misdemeanor), 31 percent process (Hannaford, Graves, and Spacek-Miller, are civil trials, and the remaining 4 percent are 2015: 35). Jury trials that do occur in civil family, juvenile, traffic, and other. Between 1976 cases are primarily tort disputes (65 percent). and 2009, criminal jury trials cases dropped from One recent survey of the future of courts asked 3.1 percent of dispositions to 1.1 percent, and civil if the civil jury trial was an anachronism (Knox jury trials fell from 3.5 percent of dispositions to 0.5 and Keifer, 2015). Although the respondents percent (see Flango and Clarke, 2015, for statistics). said it is “unlikely” that the civil jury trial would be so rare as to be virtually nonexistent In England, juries are seldom used in civil or even within the next ten years, the observed decline

1 Specialized courts that criminal cases, except for major crimes, and are in civil jury trials means that fewer cases have handle business disputes being used less frequently for those (Frank, 1963). “the benefit of citizen input, fewer case prece- have been established in at least 27 states, In the United States, many larger civil cases have dents, fewer jurors who understand the system, from Arizona to Maine, according left the court system entirely or have migrated to and fewer judges and lawyers who can try jury to the American Bar 1 Association’s business special “business courts.” Many consumer and cases” (Institute for the Advancement of the courts subcommittee. commercial transactions, including health-care American Legal System, American Board Indiana will join the list in 2016, when its and insurance contracts, employment contracts, of Trial Advocates, and National Center for business court begins hearing cases. and financial services agreements, now specify State Courts, 2012).

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In contrast, the rate of criminal This conception of the jury trials has declined drastically, …the observed is derived from the time of but most of those that remain decline in civil jury mechanical jurisprudence, require juries. William J. Stuntz trials means that when it was thought that the (2011: 302) argues that the lack fewer cases have role of courts was to apply legal of transparency in guilty pleas, “the benefit of rules to carefully ascertain facts especially those that occur early citizen input, fewer to reach a decision. The jury in the process, is a problem that case precedents, determines the facts. The judge would be mitigated if a larger fewer jurors decides what law applies to a proportion of criminal cases were who understand particular set of facts, makes resolved by trial. An increase in the system, and legal rulings as to evidence to be the number of criminal jury trials fewer judges and heard by the jury, and interprets would involve more members lawyers who can the law governing the case. of the public in their resolution. try jury cases”… Jurors are instructed to follow If the number of criminal trials the law as given by the judge. increased, the public could see In the overwhelming number of how cases are resolved; public visibility would cases, the jury determines the truth of factual improve decision making and, thus, increase allegations, but renders a “general verdict,” which public trust and confidence in the court system. just announces the result without explanation— whether a criminal defendant is guilty or a civil The Dual Role of Juries defendant is liable.2 Consequently, there is no way 2 The term “special verdict” is used when the jury of knowing the reasons behind the decision. reports the facts upon which the decision This essay argues that juries have two separate Sunderland (1919) said: was based. and distinct roles to play: one as fact finder and one as arbiter of community standards. I further argue Whether the jurors deliberately threw the law into that the fact-finding role is diminishing, which is the discard, and rendered a verdict out of their one reason for the decline in jury usage. The use own heads, or whether they applied the law of juries as arbiters of community standards, correctly as instructed by the court, or whether however, could be increased, with salutary effects they tried to apply it properly but failed for on public trust and confidence in the judicial lack of understanding—these are questions system. Let us discuss these roles briefly. respecting which the verdict discloses nothing.

Juries as Fact Finders Before DNA and other technological innovations, juries No area of court One role of the jury is to evaluated the credibility of operation is more determine what the facts are witnesses and defendants, integral to the so that the law can be applied. whom they might actually American legal Robert Tobin (1999) put it this know either personally or by system than the way: “No area of court operation reputation. The facts they had use of juries to is more integral to the American to decide were essentially “did decide facts and, in legal system than the use of juries the accused do it” and “did he a few states, even to to decide facts and, in a few states, intend to do it,” which involves decide the sentence. even to decide the sentence.” judgment in reading people.

Revitalizing the Jury 99 The role of the jury as fact finder Given the complexity of the needs to be de-emphasized Are juries capable modern world and the degrees because today’s more complex of making decisions of specialization, some argue cases require expertise to in complex cases that fact finding is a role better understand facts, let alone apply with volumes played by a panel of experts than them in complex criminal and of information lay people. For example, in a civil cases. The widely reported and difficult dispute over whether certain fraud trial against three former subject matter? medical procedures constitute executives of one of New York’s malpractice, a small panel of most prestigious law firms, in which the jury medical experts would be superior to a jury of was “hopelessly deadlocked” after 22 days lay people. The same is true for cases involving of deliberation, again raises the question of the potential risks of fracking, product liability, whether juries are best equipped to hear corporate mergers, and anti-trust cases. complex cases. Posttrial interviews with the Dewey & LeBoeuf jurors made it clear that Indeed, at one time in England, when a case they were confused not only with technical related to a particular trade, it was not unusual terms such as accounting adjustments, but to have a jury of men engaged in that trade also with basic terms such as “burden of proof” (Beuscher, 1941). That practice has been and what it means to deliberate (Stewart, 2015). discontinued in England and was never adopted Are juries capable of making decisions in in the United States. A recent survey noted that it complex cases with volumes of information and was improbable that specialized jurors experienced difficult subject matter? The extreme example is in a specific subject area would occur within the the record-breaking trial in Kenner vs. Monsanto, next ten years (Knox and Kiefer, 2015). a train derailment with Dioxin case in Bellville, Illinois, which involved 65 residents of Sturgeon, Even with respect to criminal cases, concepts Missouri, 182 witnesses, 6,000 exhibits, such as “reasonable doubt” and “circumstantial and three and a half years of testimony evidence” may require more formal education than (Tackett, 1987). The equivalent criminal case a few minutes of jury instructions can provide. was the Pizza Connection trial, where 21 of 22 defendants were convicted of heroin distribution Juries as a Gauge of Community Standards from pizza shops, which ran from September 30, 1985 to March 2, 1987. What the jury is uniquely qualified to do is establish community standards and norms Back in 1945, noted historian Carl Becker said: of behavior. Because juries represent the public, they are more likely to decide in Trial by jury, as a method of determining facts, is accordance with generally accepted values antiquated…and inherently absurd—so much so of their communities. They leaven the law that no lawyer, judge, scholar, prescription-clerk, with community standards, which should cook, or mechanic in a garage would ever think add flexibility to the rigidity of laws and the for a moment of employing that method for straitjacket of sentencing guidelines. Juries, determining facts in any situation that concerned in effect, used the “medical model” of treating him (quoted in Frank, 1963: 100). the individual offender rather than the “legal model” of treating similar offenses with the

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same punishment, regardless computer (see Ward, 2015). of aggravated or mitigating Because juries only Collins and other defendants circumstances (Flango and hear one case, they downloaded the images through a Clarke, 2015). Juries were a approach the trial peer-to-peer file-sharing program. primary way to individualize with a fresh outlook, Users often do not realize they justice before the creation of in contrast to judges are sharing the images because problem-solving courts. who often hear many the software automatically similar cases. downloads the images from Because juries only hear one other users’ hard drives. case, they approach the trial with a fresh outlook, in contrast to judges who often hear U.S. District Judge James S. Gwin of the Northern many similar cases. Juries also have more District of Ohio polled a jury about a suitable flexibility and do not have to follow the letter sentence for Ryan Collins. The jury recommended of the law. A jury verdict in a case is binding on average a 14-month sentence. Gwin sentenced only in that case and is not a legally binding him to 5 years, longer than the recommendation, precedent in other cases. Consequently, given but significantly less than the sentencing the same factual evidence, it is possible for one guideline recommendation of 20 years. jury to find a particular conduct is negligent, and another jury to find that similar conduct is not negligent. Of course, no two witnesses are exactly the same, and even the same witness will not express testimony in exactly the same way twice, so this is difficult to demonstrate except with experiments using mock jurors.

When the classic study of the American Jury was done, Kalven and Zeisel (1966) identified some unpopular laws where juries would tolerate some violations because they disagreed with the laws themselves. Many of these were so-called blue laws, which attempted to regulate behavior on social or moral grounds. These laws included game laws, liquor laws, drunken driving, and gambling laws. Of course, hostility to liquor laws This role of community conscience is especially was greatly reduced after the repeal of Prohibition. important now in terms of communities deciding how much flexibility they would One illustration of how community prefer in sanctioning crimes values may provide justice in an They [juries] can such as marijuana possession individual case, even if they are serve as a de facto and use. Juries are ideal for at odds with the law, is the case citizen review board those types of decisions and of Ryan Collins, found guilty of and as a safeguard can guide the prosecutor having 19 videos and 93 images against arbitrary in how lenient to be with of child pornography on his law enforcement. plea agreements.

Revitalizing the Jury 101 More broadly, juries can help determine the to racial profiling, whereby minorities have degree of law enforcement that is appropriate been stopped much more frequently by police to their communities. They can serve as a de than others. By determining which offenses are facto citizen review board and as a safeguard treated relatively harshly and which are treated against arbitrary law enforcement. relatively leniently, juries can provide guidance to law enforcement. For example, does the New York has struggled with the use of community as represented by juries prefer “stop-and-frisk” laws. These were used more aggressive policing to rid the towns or as part of the “broken windows” theory of cities of gangs and crime, or more community law enforcement; i.e., police stop people in policing that is more flexible with minor offenses high-crime areas to search for weapons and and perhaps more willing to treat offenders other contraband. The purpose is to remove with warnings, peer courts, etc., and if found weapons before they are used in more serious guilty make more use of fines, community crimes, but enforcement has been linked service, and other alternatives to incarceration?

* * * * * Summary

The Jefferson quote that began In contrast, juries selected to this article addressed the …juries selected be representative of commu- importance of the jury system. to be representative nities should not be expected The suggestion here is that of communities to be the best decision-making revitalizing the jury requires a should not be arrangement for fact finding, realignment of the function of expected to be the especially in areas of dispute the jury with the appropriate best decision-making that require a high level structure necessary to achieve arrangement for fact of general knowledge and those purposes. This means finding, especially even more so in areas that triaging issues sent to a jury in areas of dispute require some sort of specific for resolution and using that require a high expertise. One could read juries to resolve conflicts over level of general the trends toward specialized values—community standards. knowledge… business courts, increased Juries selected to be represen- use of mediation and binding tative of the communities they serve are the arbitration, and increased use of online dispute appropriate decision-making body to articulate resolution as indications that the jury’s role in community standards, especially with respect fact finding is being diminished. If key issues to the amount of latitude given to law enforcement in contention involve determining questions and the severity of punishment to be meted of fact that require technical expertise, many out to individual offenders. It could be argued of those questions should be referred to expert that the nascent trend toward this use is witnesses or, better yet, a panel of experts. already becoming evident in the use of juries For those issues, jury selection procedures in criminal cases. As noted above, even though could focus less on being representative of the criminal trials are declining, most that do community and more on the types of expertise remain are jury trials. necessary to resolve issues of fact.

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References

Abramson, J. B. (1994). We, the Jury: The Jury Lindsay, M. (1999). “Public Involvement as System and the Ideal of Democracy. Cambridge: the Key to Public Trust and Confidence,” 36:3 Harvard University Press. Court Review 20.

Beuscher, J. (1941) “The Use of Experts by Roberts, J. V., and M. Hough (2009). Public Opinion Courts,” 54 Harvard Law Review 1105. and the Jury: An International Literature Review. London: Institute for Criminal Policy Research. Flango, V. E., and T. M. Clarke (2015). Reimagining Courts: A Design for the Twenty-First Stewart, J. B. (2015) “Dewey Jury Deadlock Century. Philadelphia: Temple University Press. Exposes a System’s Flaws,” New York Times, November 5. Frank, J. (1963). Courts on Trial. New York: Atheneum. Stipanowich, T. J. (2004). “ADR and the ‘Vanishing Trial,’” 1 Empirical Legal Studies 843. Friedman, L. (2004). “The Day before Trials Vanished,” 1 Journal of Empirical Legal Studies 689. Stuntz, W. J. (2011). The Collapse of American Criminal Justice. Cambridge: Harvard Galanter, M. (2006). “A World without Trials?” University Press. Journal of Dispute Resolution 7. Sunderland, E. R. (1919). “Verdicts General — (2004). “The Vanishing Trial,” 1 Journal of and Special,” 29 Yale Law Journal 253 Empirical Legal Studies 459. Tackett, M. (1987). “Nation’s Longest Civil Hannaford-Agor, P., S. Graves, and S. Spacek- Jury Trial Winds Down,” Chicago Tribune, Miller (2015). The Landscape of Civil Litigation September 6. in State Courts. Williamsburg, VA: National Center for State Courts. Tobin, R. W. (1999). Creating the Judicial Branch: The Unfinished Reform. Williamsburg, Institute for the Advancement of the American VA: National Center for State Courts. Legal System (IAALS), American Board of Trial Advocates, and National Center for State Tyler, M. C. (2004). “115 and Counting: Courts (2012). A Return to Trials. Denver: IAALS. The State of ODR 2004.” In. M. C. Tyler, E. Katsh, and D. Choi (eds.) Proceedings of the Kalven, H., and H. Zeisel (1966). The American Third Annual Conference on Online Dispute Jury. Chicago: University of Chicago Press. Resolution. Online at www.mediate.com/odrresources/ docs/ODR%202004.doc Knox, P., and P. C. Keifer (2015). “Future of the Courts: The Next Ten Years.” Facebook page, Ward, S. F. (2015). “Minors Sentence,” 101 November 23, at https://www.facebook.com/FutureOfTheCourts. ABA Journal 15.

Revitalizing the Jury 103 “It’s probably nothing, but it hardly feels right for a federal Bankruptcy Court —a federal Bankruptcy Court— to be making decisions about who’s required to fund what within the Michigan judiciary.”

In re City of Detroit, Michigan 2013: 28, 36

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Court-Funding Issues Raised …though other local courts in fiscally distressed jurisdictions by Detroit’s Bankruptcy may not ever experience Associate Professor, Department of Political Science, federal-level oversight via Diane M. Hartmus Oakland University, Rochester, Michigan bankruptcy, a number Associate Professor, Department of Political Science, of experiences from Julie Walters Oakland University, Rochester, Michigan Detroit are relevant…

Detroit’s 36th District Court operates under a state model that requires courts to be funded by local governments. Examining issues faced by the court when Detroit entered federal bankruptcy protection is instructive for jurisdictions that might face local fiscal exigency and for those in states permitting bankruptcy protection.

Local courts in the United States are funded under The 36th District Court had been in financial arrangements provided by the states in which distress before Detroit entered bankruptcy they are located. These funding structures are in December 2013, with the Michigan not uniform and range from little, to nearly full, Supreme Court appointing a special court local responsibility for funding a court’s staff, administrator in June 2013 to take control facilities, and operations. For locally funded courts, following a scathing assessment of the court’s the 2013 bankruptcy of the City of Detroit, finances and operations by the National Center Michigan raised a number of questions for State Courts (NCSC). In March 2013, regarding decision-making powers and fiscal Governor Rick Snyder appointed an emergency management. Such questions are applicable in manager to oversee the financial management fiscally distressed jurisdictions beyond those of the court’s primary funding source, facing the possibility of bankruptcy. the City of Detroit.

Court-Funding Issues Raised by Detroit’s Bankruptcy 105 With its primary funding source’s successful bid SCAO, presumably hoping to continue the for federal bankruptcy protection, the court was court’s functionality, did not argue against operating in the midst of a web of administrative it being treated as “a department” of the city, authorities—a state-appointed court administrator, perhaps deeming it “mere terminology.” an emergency financial manager for the City of The court’s daily bills were being paid by Detroit, and a federal bankruptcy judge—all of the city, and that was important. whose actions would, to varying extents, govern its current and future operations, and all of Allowing the court to be treated, and referred to, whose actions would help inform any assessment as a branch of the City of Detroit is troubling. of court-funding models in similar jurisdictions For reasons that may be understandable, it went as a matter of public policy. Hence, though other unchallenged in this case. One may surmise this local courts in fiscally distressed jurisdictions was because SCAO was working hard to bring the may not ever experience federal-level oversight court to a basic level of functionality and needed via bankruptcy, a number of experiences from the city’s cooperation to do so. Perhaps SCAO Detroit are relevant in light of substantive decided that challenging the Plan of Adjustment concerns regarding intergovernmental relation- on this issue, seen by some as mere “terminology,” ships and responsibilities among each state’s would damage its relationship with the city and executive, legislative, and judicial branches. lead to a further breakdown where court bills remained unpaid. Whatever reason, this action A Branch of Government went unchallenged, and it resulted in a type of Courts constitute or a Department? “legal fiction”—while the city acknowledged that a separate branch, the court was a separate branch of government, not department, Courts constitute a separate branch, it was treated as a city department. of government in not department, of government in the United States. the United States. This distinction While this legal wordplay may work in this This distinction is is important in viewing the instance, the need for such game playing important in viewing bankruptcy or fiscal distress is a possibly unintended, but nevertheless the bankruptcy or of a local funding unit that is very real, side effect of local court funding. fiscal distress of responsible for partially funding Such contortions leave courts in a weakened a local funding unit a court. In a motion filed in position. Failing to fund trial courts as a that is responsible the bankruptcy court, the 36th separate, equal branch of government may for partially funding District Court, backed by the have far-reaching repercussions if bankruptcy a court. State Court Administrative Office or fiscal exigency arises. For instance, the (SCAO), sought clarification on Plan of Adjustment (POA), filed by the City of 1 In fact, the 1st Plan of Adjustment includes the the question of how the bankruptcy would affect Detroit as part of the bankruptcy settlement, 36th District Court by the day-to-day operations of the court. The city’s provides a ten-year budget proposal for each name as a department in a section titled attorney stated that the city was continuing to department of the city (including the court). “Restructuring Initiatives by Department.” By the fund the “reasonable and necessary” expenses What happens if the court cannot meet a 4th Amended Plan of Adjustment, the plan had of the operation of the court. During the certain year’s budget figure is unclear. changed its nomenclature bankruptcy proceedings, the city continued and now included the court in a section to pay the court’s daily expenses as if it were a Courts have unpredictable workloads (and, thus, labeled “Other Agencies” under the subheading department of the city, while acknowledging that budgetary needs) that are sometimes changed by “Non-Departmental 1 36D initiatives.” the court “is not part of the city department.” the state legislature. For instance, if in this ten-year

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period, the Michigan state legislature were to pass appropriations sufficient to enable it to carry legislation increasing the jurisdictional limit out its constitutional responsibilities is a function allowed in district courts (something that has of the separation of powers provided for in the happened before) this would increase the court’s Michigan Constitution” (46th Circuit Trial workload and, thus, its resource needs. It is Court v. County of Crawford, 2006: 143). The unclear how the court would go about getting an Michigan Supreme Court’s Administrative increase in its budget at that time—would the Order 1998-5 (as amended January 29, 2014) bankruptcy judge have to approve such a request? provides that a court may file a civil action against Would city council be allowed to approve it? its funding unit if the court concludes that the Or would it not be allowed because it was outside “funds provided for its operations by its local the parameters of the ten-year budget plan? funding unit are insufficient to enable the court Municipalities in fiscal exigency may face some to properly perform its duties.”2 The court seeking 2 The court must first seek the assistance of the of the same issues, as long-term budget plans, the funding must prove that the monies are state court administrator, who “must attempt to aid with outside oversight, may be part of a recovery necessary to maintain a statutory function of the the court and the local funding unit to resolve the plan, even absent a formal bankruptcy proceeding. court or to provide for the overall administration dispute.” Administrative of justice (Employees and Judge of the Second Order No. 1998-5, III (1). Doctrine of Inherent Powers Judicial Circuit District Court v. Hillsdale County, and Separation of Powers 1985: 717). Recently, the Michigan Supreme Court has stated, “In order for the judicial branch to The “branch versus department” issue is carry out its constitutional responsibilities as directly related to the doctrine of inherent envisioned by Const 1963, art 3 § 2, powers and separation of powers. In general, the judiciary cannot be totally …the Michigan the doctrine of inherent powers allows courts beholden to legislative deter- Supreme Court, while to take all steps necessary to perform their minations regarding its budgets” acknowledging that constitutionally mandated judicial functions (46th Circuit Trial Court v. County “strong arguments even when those actions are not authorized by of Crawford, 2006: 143). can be made that constitutional text or statute. This can include state funding would the authorization of rulemaking by the judicial In addition to cases to compel be a more desirable branch, the discipline of the bar, punishment funding from municipalities, system of court for contempt of court, and general control of there have been cases in financing,” has a courtroom by a judge. It can also include Michigan seeking to enforce consistently held courts protecting themselves from legislative- state funding of trial courts, that there is no or executive-branch neglect or interference. mostly filed by local funding constitutional or units. However, the Michigan statutory requirement Courts, including Michigan courts, have Supreme Court, while acknowl- that requires the state occasionally relied upon the doctrine of inherent edging that “strong arguments to pay the cost of trial powers to obtain the funds necessary to fulfill can be made that state funding court operations. their constitutionally mandated duties. It is not would be a more desirable unusual for courts and their local funding units system of court financing,” has to disagree over funding issues. In fact, the consistently held that there is no constitutional Michigan Supreme Court provides instruction or statutory requirement that requires the state on handling these disagreements, recognizing to pay the cost of trial court operations (Grand that “the judiciary’s ‘inherent power’ to compel Traverse County v. State of Michigan, 1995: 474, 476).

Court-Funding Issues Raised by Detroit’s Bankruptcy 107 Thus, under Michigan law, it is clear that a court this, asking, “You want this Bankruptcy Court to may compel certain monies from its funding unit hold that the State of Michigan is obligated to under the doctrine of inherent powers. Inherent pay these judgments?” Later, in what is clearly powers exist for all courts, although most states dictum, he notes, “It’s probably nothing, but have some guidelines or legal precedent on their it hardly feels right for a federal Bankruptcy use by the courts of the state. The introduction of a Court—a federal Bankruptcy Court—to be bankruptcy judge into this issue raises interesting making decisions about who’s required to fund questions. Furthermore, Michigan law is clear that what within the Michigan judiciary” (In re City a funding unit may not compel the state to pay of Detroit, Michigan 2013: 28, 36). trial court costs. Whether a federal bankruptcy judge would be able to compel such payment is State Authorization for Municipal Bankruptcy unanswered. If a local court, in a unified-court- budgeting situation, is facing oversight by entities other than officials such as those in a Chapter 9 bankruptcy, it may have the option of petitioning the highest court of the state to order funding or, if the court is locally funded, it may have the option to file a separate lawsuit against the local funding unit in which a disinterested judge from outside of the jurisdiction hears the case.

Specific Authorization The Role of the Federal Bankruptcy Conditional Authorization Judge and State Sovereignty Limited Authorization Prohibited The introduction of a bankruptcy judge into these No Specific Authorization or Prohibition situations has never occurred before and raises significant questions. At what level will the judge Role of Federal Bankruptcy Judge: be involved? If a state court of last resort orders Post-Confirmation of Plan of Adjustment payment of funds to a court would a bankruptcy judge have the authority to void the order? The possibility of involving a federal bankruptcy judge in the daily funding of a trial court remains The scenario where a federal bankruptcy judge imminent. Continuing the practice of local court would be involved in approving or disapproving funding in the face of the suspected increase a state court order to a municipality to pay in municipal bankruptcies is problematic. necessary costs for a state court may seem Facing the real possibility that a municipality far-fetched—but, in fact, such a scenario was in bankruptcy or fiscal exigency might be suggested in a hearing before Judge Rhodes, unable to provide the necessary daily expenses who handled Detroit’s bankruptcy. In the hearing for a court’s operations is something that every on the motion to extend the bankruptcy stay, state using local court funding must consider. an attorney for creditors of the court was arguing Although the bankruptcy of Detroit presents a that the State of Michigan had a constitutional case that is unique in some parts, it is one that duty to fund the court if the local funding unit may very likely be replicated in other states were unable to do so. Judge Rhodes questioned that have local funding of trial courts.

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The Settlement and Ten-Year Though some commentators may Budget Requirements argue that Detroit’s bankruptcy Facing the real and the accompanying 36th District possibility that a Even more problematic is that the ten-year Court’s involvement are unique— municipality in budget filed with the POA also includes namely, due to the dysfunction of bankruptcy or revenue projections that city departments the court itself—that perception is fiscal exigency are being told are “commitments” that must dangerously myopic. The potential might be unable be reached or they must adjust their budgets should not be underestimated that to provide the accordingly. Obviously, this is not acceptable many of the key issues presented in necessary daily for the court. A court’s revenue stream is the case are likely to be replicated. expenses for a typically generated by fines and fees. Court Courts that rely on local funding court’s operations fees are typically set at the state level, and and are facing a possible fiscal is something district courts do not have the discretion to exigency may wish to be proactive that every state raise them. Some fines may be established by in approaching the state legislature, using local statute, while others may be set by the local possibly through the state court court funding court. However, an increase in the amount or administrator or the state court of must consider. number of fines handed down by the court last resort, with questions about to answer a call for more revenue is not an continued funding of the courts if acceptable situation. Courts are simply not such a situation should occur. As a revenue centers and cannot be treated like larger policy issue, state legislatures might a department of the city in this regard. address local funding problems in light of Detroit’s experiences, regardless of whether Conclusion federal bankruptcy protection may be in the future for the local funding unit. Local courts What does all this mean for other local courts may wish to be familiar with the use of inherent across the United States? For states that require powers by other courts, in their own state or in local funding beyond some nominal amount other states, to compel funding if required. Courts for local court operations and that allow for facing fiscal exigency may wish to make sure municipal bankruptcy, a reassessment of that their own financial house is in tip-top shape.3 3 Reviewing the literature generated by the NCSC funding structure is particularly merited. In operational review of the 36th District Court in particular, those states with fiscally distressed Because the Detroit bankruptcy was settled, Detroit may be helpful. This includes the original municipalities in danger of bankruptcy (e.g., many of the issues raised did not result in report (http://tinyurl. com/h8jwz4b), the Florida, Illinois, Michigan, and Pennsylvania) rulings from the court, leaving the issues follow-up done by NCSC should pay particular note. States that do not allow open for repeat challenges and for further (http://tinyurl.com/ hnck2le), and the for municipal bankruptcy are not necessarily court consideration. Thus, a number of issues report issued by the Honorable Michael J. protected from concerns involving local court probably will need to be addressed by the Talbot, the special judicial administrator of the funding (see map). A municipality in fiscal judicial system, possibly appeals courts, if they 36th District Court are not addressed by state legislatures, in the (http://tinyurl.com/ exigency may also face legally complex issues glan8o7). involving funding of local courts. coming years. Detroit’s bankruptcy proceeding has been lauded by many for its shortness, and the cooperation shown by so many parties, but that is not something upon which another court facing the same situation can rely.

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Overall Court Improvements

Applying Outcomes Management to Client Services in the Lake County Circuit Court

Principal Research Analyst, Administrative Office Robert J. Verborg of the 19th Judicial Circuit Court of Lake County, Illinois Executive Director, Administrative Office Robert Zastany of the 19th Judicial Circuit Court of Lake County, Illinois

Feedback is essential if courts are to improve their service to the public. This article focuses on using surveys to gauge the satisfaction of adult and juvenile probation clients in the Lake County Circuit Court in Illinois.

Each day, the Lake County Circuit Court serves thousands of people who seek justice in family Customer Service: How are we doing? disputes, civil-rights cases, commercial and Client Services Survey financial disagreements, and criminal matters. As an organization, the court is committed to Access & Fairness Survey the highest quality and continuous improvement Juror Satisfacation Survey of its services and programs. Toward this end, the court has conducted surveys of general Kids’ Korner Parent Survey court users, jurors, law-library patrons, Law Library Patron Survey Kids’ Korner children’s waiting-area parents, divorcing parents, and arbitration participants, Employee Engagement Survey and court employees.

Applying Outcomes Management to Client Services in the Lake County Circuit Court 111 Criminal defendants and sentenced offenders Administrative Considerations are usually not considered clients or customers, in the traditional sense, because their entry U.S. trial courts face significant challenges. into the court system is not voluntary. The A troubled economy is severely constraining programs, services, and supervision are not tax revenues, forcing many courts to operate anything they sought but, rather, conditions on tighter budgets with smaller staffs. Many placed upon them by the court. However, courts are seeing their most knowledgeable because organizational resources are expended and experienced managers and leaders retire, on this group to achieve a particular outcome, further undermining the courts’ ability to they are considered court clients. The court serve their constituents effectively. Further, takes appropriate responsibility to ensure that trial courts and their various service units are these clients understand and comply with the under intense pressure to improve services and conditions placed upon them; court resources, become more transparent to citizens and other that is, staff time, effort, and interventions, are stakeholders—pressure that stems, in part, directed toward enforcing these conditions; from government mandates. Courts are being and the anticipated outcomes are that offenders called upon to provide more responsive service, follow the court’s orders and remain crime better collaborate with justice partners, and free. These outcomes help increase community improve customer satisfaction. safety and, therefore, advance public trust and confidence in the judicial system. Customer experience is more than just a buzzword. It refers to the real, Local courts can use a number of tools to everyday interactions between judicial become high-performance organizations. Over staff and their constituencies. the past ten years, the Lake County Circuit Court (19th Judicial Circuit) has enhanced its performance measurement system, and These pressures are also the result of a improved the services it provides, by using the wide-ranging marketplace in which customer National Center for State Courts’ CourTools. expectations continue to rise. Court users Other tools include strategic planning, data demand fast, accurate, and consistent answers collection, benchmarking, cost/benefit from trial courts and their service units—and analysis, and surveying. These tools are used they will clearly express their dissatisfaction in combination to be more effective regarding if those expectations are not met. The bottom output, efficiency, service quality, and line: Court leaders are challenged to fulfill outcomes. The court measures performance customer expectations in delivering services and achievements against its ambition and while complying with internal mandates, strategy, regularly using a wide range of key improving staff morale, and gaining deeper performance indicators (KPIs). Service quality insight into operational conditions that affect represents timeliness, accuracy, or customer the court’s mission, while increasing produc- satisfaction with a specific service. This article tivity and reducing costs. Customer experience focuses on the satisfaction of adult probation is more than just a buzzword. It refers to the clients and juvenile probation and detention real, everyday interactions between judicial clients and their parents or guardians. staff and their constituencies.

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Courts that deliver a superior customer to be touched upon. Satisfaction is an accepted experience are fulfilling a key aspect of their part of the quality domain (usually viewed as an mission. The experience is important whether outcome measure), but is often handled separately. the customer is a citizen, employee, veteran, business, or other agency. We will describe some An outstanding customer experience is not just of the key design considerations of successful a matter of putting better service processes performance measurement systems and highlight in place. It is also achieved by continuously some specific examples of particularly successful measuring and improving the effectiveness and or innovative measurement systems. We hope efficiency of those processes. Courts must have that the information will provide a template for ways of measuring the quality of the customer court organizations with oversight over probation experiences they deliver and set specific services or assist those that wish to enhance objectives for process improvement. There are their own performance measurement programs. various ways to measure customer experience. In discussing the performance measurement systems in the 19th Judicial Circuit, we will Courts must have ways of measuring keep several key questions in mind: the quality of the customer experiences they deliver and set specific objectives What is the entity being measured? Which for process improvement. individuals and which organizational/service- delivery units will see their behavior reflected The most traditional method is soliciting in any particular performance measure? subjective evaluations from customers. The metrics or KPIs a court organization uses Who is using the information? Is the will depend on its mission and objectives. information to be used primarily by senior There are, however, some general principles managers for oversight, compensation that all agencies should apply as they pursue decisions, and strategic planning? Is the continuous customer-experience improvement: information to be used by “line workers” for quality improvement? Is the information Clearly communicate performance goals. to be used by external stakeholders? Judicial staff are more likely to achieve What core organizational processes or performance goals if they understand skills are the measures designed to reflect? exactly what those goals are. Are they primarily about quality of service, Make metrics visible. Incorporating the operational efficiency, or something else? metrics into the annual plan, performance evaluations (creating an immediate feedback It is not possible to design, implement, or even loop connecting behavior with results), and discuss performance measurement systems team or unit meetings can help frontline staff without defining performance. What is it that track their own progress toward the court courts or service units do that should be organization’s goals and objectives. measured? Who uses the information and for what purpose? It is likewise for the concept of quality. Set new goals. Goals should be periodically What is the endgame, and how is it defined? reviewed and adjusted as new performance levels “Customer satisfaction” or individual “utilization/ are reached and customer expectations continue cost/efficiency”? Each of these concepts need to rise: Measure and Improve Continuously.

Applying Outcomes Management to Client Services in the Lake County Circuit Court 113 Customers want to be heard, and they want courts Much less research, however, has focused to act on their input. Court professionals also on the EBP principle of responsivity, which have a big stake in listening to their customers, refers to the delivery of programs and because they can improve the customer services in a style and mode consistent with experience only if they know where it falls short. the ability and learning style of the offender They should also let customers know that they are (Lowenkamp, 2004). This principle has two responding to their input. Real responsiveness to parts. General responsivity has to do with the the customer’s voice is the result of a mind-set that general learning style and method of program penetrates the culture of the court. This “listening delivery that has proven to be most effective in culture” can be promoted in various ways—for changing offenders’ criminal behavior. Specific example, by holding regular meetings where responsivity relates to those characteristics of frontline employees can discuss customer individual offenders that may impact how they feedback or by rewarding employees who make interact with the delivery of services. good suggestions based on customer feedback. Doing these things can achieve these results: Correctional clients’ willingness to invest in change is considered a significant predictor significantly improved customer satisfaction of successful program outcomes (Martin, Garske, and Davis, 2000), and the perceived better allocation of limited budget dollars quality of the relationship between the client more effective fulfillment of the court’s mission and the change agent is a critical component of that process. Client dissatisfaction with improved staff morale this relationship is strongly correlated with deeper insight into customer needs resistance to change and, consequently, poor program outcomes (Preston, 2000). The most Treatment Considerations effective client/change-agent relationships appear to be those that successfully integrate To maximize the effective and efficient use of aspects of procedural justice (e.g., firm, but court resources to increase offender compliance fair and respectful) with a positive working with supervision (both pretrial and post-adjudi- alliance, effective communication techniques cation) and reduce recidivism, the circuit has (e.g., motivational interviewing; Miller and embraced evidence-based practices (EBP) for Rollnick, 2002), and cognitive-change strat- offender management. EBP is not a specific egies (Cormier, Nurius, and Osborn, 2009). program or technique, but principles that have Such varied and active engagement methods, been proven to best reduce offender recidivism often coupled with interactive skills training, (Bogue et al., 2004). Current research indicates are more likely than traditional methods (e.g., that the most effective offender interventions share didactic lecturing) to increase program effec- similar characteristics in targeting offender risk, tiveness and client satisfaction (Small et al., needs, and responsivity. Research studies have 2005). Measuring offender satisfaction can demonstrated that matching higher-risk offenders offer insights into whether community correc- with more intense services (e.g., risk principle) tions staff are actively facilitating the change and specifically addressing dynamic criminogenic process and helping judicial clients to respond needs (e.g., needs principle) can significantly to change positively. reduce recidivism.

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Well-developed customer surveys can identify Well-developed customer surveys can potential problem areas in service delivery, staff identify potential problem areas in responsiveness, and the ability to address the needs service delivery, staff responsiveness, of special populations. Feedback can also validate and the ability to address the needs the effectiveness of existing business practices. of special populations. Feedback Only recently have the correctional and justice can also validate the effectiveness communities begun to seriously consider of existing business practices. probationers as clients and to solicit their feedback.

Opportunities to address responsivity factors Client surveys in corrections typically examine exist at each stage of offenders’ experience with only specific areas related to offenders’ experience the justice system. Stakeholders and justice with treatment interventions (e.g., substance partners, including judges (Warren, 2007), abuse treatment) or attitudes regarding the prosecutors and defense attorneys (Birgden, 2004), meaningfulness of their sentence compared to and nonjudicial staff (Applegate et al., 2009), are other offender groups (e.g., imprisoned offenders). strongly encouraged to respond appropriately Only a handful of published surveys have used and adequately to address an offender’s individual correctional client feedback for performance issues. Probation officers, in particular, management and improvement. The Walker are uniquely situated to prepare offenders to County (Texas) Office of the Judicial District comply with the conditions of probation, engage Community Supervision and Corrections with treatment providers and programming, Department, for example, developed a and invest in other positive life changes questionnaire to survey probationers about their (Alexander, VanBenschoten, and Walters, 2008). perceptions of the department, its staff, and its Such actions closely adhere with the performance services (Henningsen et al., 1996). The Nueces objectives established for the Lake County County (Texas) Community Supervision and Circuit Court Strategic Plan (2009): Corrections Department employed an updated, much more comprehensive version of this survey The court shall give individual attention (Rhoades and Venegas, 2006). This survey to cases, deciding them without undue solicited probationers’ opinions concerning disparity among like cases and upon legally secretarial assistance, availability of office relevant factors. hours, transportation, services (specifically, employment, GED training, and alcohol and Decisions of the court shall unambiguously drug counseling), and probation officers. address the issues presented to it and make Several survey questions demonstrated good clear how compliance can be achieved. discriminant validity and significant response The court shall take appropriate responsi- variability and were strongly correlated with bility for the enforcement of its orders. overall probationer satisfaction; for example, “When you were first put on probation, did the Methodology probation officer clearly explain the rules of probation to you?” and “Do you think you have a Effective private-sector administrators have long good relationship with your probation officer?” recognized the value of consumer feedback for improving practices and management decisions.

Applying Outcomes Management to Client Services in the Lake County Circuit Court 115 Based on the findings of Rhoades and Venegas The rate of agreement is determined by (2006), the Circuit Court of Lake County Senior the percentage of valid responses to an Management Team developed ten questions about item answered as either “Agree” (4) or the quality of the relationship between supervised “Strongly Agree” (5). Responses answered court clients and supervising staff members. as “Don’t Know” (N/A), or that were missing, After extensive pilot testing in 2009, results were were excluded from the analysis. released to court managers and stakeholders and to court staff and the general public on the court’s Conclusions website. Feedback resulted in a final set of ten general questions tailored to the specific Overall, the survey results are impressive and populations served by the divisions. The Senior very positive. Comparative benchmarking in Management Team also called for an initial offender-client satisfaction is limited at this time six-month survey cycle to track changes in court due to the sparse and idiosyncratic use of clients’ perceptions and to evaluate the impact client surveys within the larger correctional of court improvement initiatives. In 2010 the community. Despite this lack of standardization, survey was administered to clients in Adult some general conclusions can be drawn and Probation Services and Juvenile Services. internal efforts for improvement can be made. The initial survey cycles provided a baseline for future application of the survey, which Macro-level measures reflect either the whole occurred annually each May from 2011 to 2015. system or major-system-unit performance (e.g., functional units of the court organization or Findings divisions of the organization) and serve somewhat different purposes than “micro-level” measures. The first table examines the response rates (e.g., individual staff member or small group). of all surveys completed within the court and They are typically used by unit managers, each of the divisions, as well as the unit-level assistant directors, directors, or court breakdowns for Adult Probation Services and leadership or external consumers for: Juvenile Probation and Detention Services. assessing organizational performance The remaining tables provide data for the against key strategic objectives rate of agreement to each of the ten items determining incentive compensation (annual contained on the client survey. The circuit’s reviews and setting next year’s individual Senior Management Team established a performance targets) performance goal of 80 percent agreement for each item, which has been recommended making decisions about capital allocation as an appropriate starting point for other setting strategic planning goals and direction performance measurement initiatives and successfully integrated with additional interacting with funding authorities customer-improvement efforts throughout the or state-level leadership circuit. Using this score as a standard allows for aligning operating unit goals and priorities better comparisons among the various divisions with overall system goals and priorities and general observations about the results.

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Division of Juvenile Probation and Detention Services — Survey Data Tables

Total Number of Survey Respondents 2010 2011 2012 2013 2014 2015 All Divisions 1,687 961 898 1,084 1,015 897 Adult Probation Services 1,288 713 666 860 694 587 General Probation 566 282 179 466 240 259 Group Reporting 223 154 297 152 201 96 Pretrial Supervision 499 261 152 226 246 223 Therapeutic and Intensive Monitoring (TIM) Court n/a n/a 38 16 7 9 Juvenile Probation and Detention Services 399 248 232 224 321 310 Juvenile Probation 252 173 178 164 240 212 Juvenile Probation—Youth 132 75 80 80 132 114 Juvenile Probation—Parents 120 98 98 84 108 98 Juvenile Detention and Residential Services 147 75 54 60 81 64 Juvenile Detention and Residential Services—Youth 84 53 32 37 36 35 Juvenile Detention and Residential Services—Parents 63 22 22 23 45 29

Circuit Court of Lake County (%) 2010 2011 2012 2013 2014 2015 1 Overall, I was satisfied with the services I (my child) received as a client. 75.8 74.9 75.8 77.5 81.9 78.3 2 When I (my child) first reported, a staff person clearly explained the rules and what was expected of me. 86.5 83.9 83.7 87.4 89.4 86.3 3 When I (my child) first reported, a staff person clearly answered all of my questions. 85.1 84.4 83.3 86.0 89.5 86.0 4 I believe that I have a good relationship with this staff person. 77.6 77.5 78.9 81.5 84.0 81.2 5 I believe that this staff person treats me fairly. 83.4 83.0 84.5 85.5 89.9 86.1 6 I believe that this staff person treats me with respect. 85.0 84.6 85.2 87.8 91.6 88.0 7 I believe that this staff person wants to help me (my child) with my (his/her) problems. 79.1 77.6 80.6 81.5 84.3 80.9 8 I believe that this staff person wants to help me (my child) to succeed on supervision. 82.2 81.9 84.3 85.4 88.4 84.4 9 When I have a question, I believe that this staff person will answer it clearly. 85.3 84.4 84.0 87.3 90.3 87.3 10 When I have a question, I believe that this staff person will answer it honestly. 86.0 84.4 84.6 86.8 90.8 88.0

Division of Adult Probation Services (%) 2010 2011 2012 2013 2014 2015 1 Overall, I was satisfied with the services I received as a client. 76.6 78.7 80.7 78.0 80.3 75.5 2 When I first reported, a staff person clearly explained the rules and what was expected of me. 87.7 85.3 86.7 88.3 88.7 84.6 3 When I first reported, a staff person clearly answered all of my questions. 86.7 86.0 86.5 87.1 88.4 85.7 4 I believe that I have a good relationship with this staff person. 79.1 80.8 83.2 82.5 81.8 79.9 5 I believe that this staff person treats me fairly. 85.0 86.5 87.1 86.6 89.3 84.7 6 I believe that this staff person treats me with respect. 85.9 87.9 87.9 88.2 90.1 86.2 7 I believe that this staff person wants to help me with my problems. 79.0 80.3 83.3 82.2 81.6 77.2 8 I believe that this staff person wants to help me to succeed on supervision. 82.2 84.5 86.2 86.3 86.1 81.6 9 When I have a question, I believe that this staff person will answer it clearly. 86.9 86.9 87.1 88.2 89.6 85.4 10 When I have a question, I believe that this staff person will answer it honestly. 87.9 87.1 87.6 87.8 89.5 86.1

Division of Juvenile Probation and Detention Services (%) 2010 2011 2012 2013 2014 2015 1 Overall, I was satisfied with the services I(my child) received as a client. 73.5 62.7 60.9 75.9 85.4 84.4 2 When I (my child) first reported, a staff person clearly explained the rules and what was expected of me. 82.8 79.4 74.8 83.7 90.9 89.7 3 When I (my child) first reported, a staff person clearly answered all of my questions. 80.2 79.2 73.6 81.4 91.7 86.6 4 I believe that I have a good relationship with this staff person. 73.0 66.7 65.6 77.8 88.6 84.3 5 I believe that this staff person treats me fairly. 78.6 71.5 76.4 81.3 91.1 89.1 6 I believe that this staff person treats me with respect. 82.1 73.9 77.0 86.4 94.9 92.1 7 I believe that this staff person wants to help me (my child) with my (his/her) problems. 79.5 68.7 72.2 79.0 90.2 89.1 8 I believe that this staff person wants to help me (my child) to succeed on supervision. 82.3 73.1 78.4 81.6 93.3 90.6 9 When I have a question, I believe that this staff person will answer it clearly. 80.4 75.7 74.2 83.5 91.8 90.9 10 When I have a question, I believe that this staff person will answer it honestly. 80.2 75.1 75.2 82.6 93.7 92.1

Applying Outcomes Management to Client Services in the Lake County Circuit Court 117 The Senior Management Team reviewed the coordinate to provide in-service trainings in current survey’s results. The directors then cognitive-change and cognitive-restructuring shared the results with their management teams strategies, in addition to cognitive-outreach- and employees; the results can be drilled down to group (COG) facilitators and staff from individual employees to address problems as psychological services to assist juvenile and necessary. The staff have been proactively adult probation staff with training and to addressing the initial shortcomings that offer suggestions to deal with difficult clients characterized earlier cycles of the survey, such as addressing expectations, rules, and questions early Through continuing to monitor staff in the process rather than reacting to problems behaviors in this area, we can ensure later, and integrating motivational interviewing that the court organization is trying to and solution-focused therapy techniques to provide the highest-quality services reduce client resistance, reluctance, reactance, and continuous organizational and ambivalence. improvement.

The managers and staff have further offered several suggestions to improve the existing perceptions The current survey offers only an indicator of of the client-staff relationship within divisions the complex probation officer-correctional client and throughout the organization. For example: relationship. Although some of the principles are considered basic, it takes a great deal of provide assistance and support to staff in their effort to turn around long-standing attitudes efforts to be more personable with correctional and behaviors regarding work with probationers. clients—especially more difficult clients Staff must learn to accept their role as change agents for this to be successful. Through provide opportunities for staff to spend continuing to monitor staff behaviors in this more quality time with clients area, we can ensure that the court organization facilitate regular, on-site motivational-inter- is trying to provide the highest-quality services viewing refresher trainings—currently, there and continuous organizational improvement. are several motivational-interviewing expert facilitators available to assist staff and provide training at both juvenile and adult facilities

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References Miller, W. R., and S. Rollnick (2002). Motivational Interviewing: Preparing People for Change, Alexander, M., S. W. VanBenschoten, and 2nd ed. New York: Guilford Press. S. T. Walters (2008). “Motivational Interviewing Training in Criminal Justice: Development of a Nineteenth Judicial Circuit Court of Illinois (2009). Model Plan,” 72: 2 Federal Probation Journal 61. “Strategic Plan: Nineteenth Judicial Circuit of Lake County, Illinois.” Waukegan, January 1. Applegate, B. K., H. P. Smith, A. H. Sitren, http://19thcircuitcourt.state.il.us/1550/Strategic-Plan. and N. F. Springer (2009). “From the Inside: The Meaning of Probation to Probationers,” 34 Preston, D. L. (2000). “Addressing Treatment Criminal Justice Review 80. Resistance in Corrections.” In L. Motiuk and R. C. Serin (eds.), Compendium 2000 on Bogue, B., N. Campbell, M. Carey, E. Clawson, Effective Correctional Programming, chapter 8. D. Faust, K. Florio, L. Joplin, G. Keiser, B. Wasson, Ottawa, ON: Correctional Service of Canada. and W. Woodward (2004). Implementing Evidence- Based Principles in Community Corrections: Rhoades, P. W., and M. Venegas (2006). “A Survey Leading Organizational Change and Development. of Probationers 2005: A Report for the Nueces Washington, DC: National Institute of Corrections. County Community Supervision and Corrections Department.” Social Science Research Center, Cormier, S., P. S. Nurius, and C. J. Osborn (2009). Texas A&M University-Corpus Christi. Interviewing and Change Strategies for Helpers: Fundamental Skills and Cognitive Behavioral Small, S. A., A. J. Reynolds, C. O’Connor, and Interventions, 6th ed. Belmont, CA: Brooks/Cole, S. M. Cooney (2005). “What Works, Wisconsin: Cengage Learning. What Science Tells Us about Cost-Effective Programs for Juvenile Delinquency Prevention.” Henningsen, R., T. Ross, D. R. Beto, and D. Report to the Wisconsin Governor’s Juvenile Justice Bachrach (1996). Probationer as a Customer. Commission and the Wisconsin Office of Justice Huntsville, TX: George J. Beto Criminal Justice Assistance, University of Wisconsin-Madison. Center, Sam Houston State University. Warren, R. K. (2007). Evidence-Based Practice to Lowenkamp, C. (2004). “Correctional Program Reduce Recidivism: Implications for State Judiciaries. Integrity and Treatment Effectiveness: A Washington, DC: National Institute of Corrections. Multi-Site, Program-Level Analysis.” Unpublished Ph.D. dissertation, University of Cincinnati.

Martin, D. J., J. P. Garske, and M. K. Davis (2000). “Relation of Therapeutic Alliance with Outcome and Other Variables: A Meta-Analytic Review,” 68 Journal of Consulting and Clinical Psychology 438.

Applying Outcomes Management to Client Services in the Lake County Circuit Court 119 “You can’t connect the dots looking forward; you can only do it looking backwards.”

Steve Jobs

Historic Polk County Courthouse in Des Moines, Iowa, an iconic 110-year-old building serving as the principal site for the state’s district court in Iowa’s capitol city, home to over 210,000 people.1

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Overall Court Improvements

Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa

Principal Court Management Consultant, Gordon M. Griller National Center for State Courts

When building a new courthouse or justice system facilities may not be realistic, some court and government policymakers have turned to reusing outdated buildings for more modern-day purposes. This is a case study of such a project in Des Moines, Iowa.

No Money, No Space, No New Courthouse. Because counties and cities often bear the primary responsibility for court construction and renovation Courthouses are a major focal point of the (even in Iowa, where the legislature funds trial justice system and one of the most revered court operations), numerous court buildings symbols of the rule of law. Unfortunately, compete weakly against other necessary many also portray a bleaker image—a picture government services and capital-funding of neglect, decay, and dysfunction due needs. Frequently, they are passed over in lieu to outdated, overcrowded, and of other priorities, worsening outmoded conditions. Many of Courthouses an already deplorable situation. the more than 4,000 state and are a major Such was the case with the local courthouses struggle to focal point of the historic Polk County Courthouse meet code requirements, federal justice system in Des Moines, Iowa, an iconic mandates for the disabled, or and one of the 110-year-old building serving as worker safety standards. Too most revered the principal site for the state’s 1 Iowa has a unified trial court structure, meaning many may be unsafe, functionally symbols of the district court in Iowa’s capitol city, the state district court processes all case types. inadequate, or poorly maintained. rule of law. home to over 210,000 people.1

Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa 121 Many programs and support By analyzing all three measures staff over the last 50+ years Courts, like —population, case-filing trends, were moved piecemeal from the many complex, and Iowa’s weighted caseload— Polk County Courthouse to allow process-oriented NCSC researchers developed a adjudication services to grow, organizations, reasonable estimate of the number 2 Various court programs the central function of any trial are not easily of needed judgeships by 2030, and justice system offices working closely with court. In doing so, the justice modified. the future projection target. the court (i.e., initial appearances, prosecutor, system became functionally Interestingly, the district court public defender, adult disorganized.2 Internal inefficiencies in work in Polk County has rarely had the number of probation, juvenile services, juvenile processes and public confusion in conducting judicial officers any of these measures have detention, traffic court, and small-claims court) business at the historic courthouse were concluded are necessary. were scattered throughout downtown Des Moines. widespread. Numerous efforts by community, county, and court leaders to renovate the 3 The most recent effort Contentious Questions and Best Practices was a special election on courthouse and construct new court facilities Set the Stage for a New Direction April 29, 2008, at the start of the Great Recession, failed.3 To sort out options for the inevitable when Polk County voters defeated a $132 million growth of the court, the Polk County Board NCSC developed a series of issue papers based on bond referendum to renovate the county contracted with the National Center for State past controversies and disputes about court space. courthouse and construct Courts (NCSC) to identify viable pathways Highly charged topics that clouded debates over an eight-and-a-half story adjacent court building. and choices in lieu of a new building. The final past failed bond referendums, such as whether

4 The weighted caseload decisions were left to the funding body—the night court or decentralization could relieve space method uses time to measure workload and is county—in collaboration with the court. congestion at the historic courthouse, were based on the assumption examined. Doubts over new space-saving that the more time required to adjudicate The first step in any court space plan, even techniques recommended by NCSC, including a particular case type, the greater the workload. a strategy that avoids new construction, is to collegial chambers and shared courtrooms, were The core workload assessment is a time estimate future trial court growth by looking addressed. Planned statewide, judicial-branch study wherein judicial officers monitor the at past population and case-filing trends, the high-tech directions and services that could amount of time they primary drivers of court expansion. They, in turn, reduce courthouse space needs and increase spend on various case types by activity and on largely condition staffing and facility needs and efficiencies (e.g., e-filing) were factored into non-case responsibilities such as meetings, lead to the creation of a set of evidence-based the final package of space strategies. work-related travel, administrative duties, predictions (often conveyed in “best fit” ranges) and continuing judicial education. A further step regarding judicial position needs over the next Several suggestions required changes in the requires an assessment 20-30 years, which, in turn, drive the number traditional business practices and culture of how much time, on average, is available of courtrooms, chambers, and support staff. In within the district court. Courts, like many annually to judicial officers to do their work. Iowa, it was also helpful to factor in the state’s complex, process-oriented organizations, are

5 Twelve issue papers weighted caseload, a sophisticated, scientific not easily modified. The issue papers provided were developed on way to assess the average time it takes a judicial a way for county, court, and community court decentralization, collegial chambers and officer (i.e., district judge, associate district leaders to grapple with ways to conserve space; shared courtrooms, court calendaring, judge, or magistrate judge) in different settings streamline day-to-day court operations; and juvenile/adult court separation, courtroom (urban or rural) to adjudicate a specific case create a workable, shared commitment regarding technology, Internet customer service, statewide type (i.e., felony, traffic, probate, small claims, needed physical space, with an agreed-upon technology initiatives, etc.) from filing to disposition.4 set of strategies on how to get there.5 It meant night court, civil and family mediation, a willingness on the part of the court, as the parking, security, and jury management. tenant, and the county, as the landlord, to

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develop an acceptable, economical A Charrette Builds a Forward- way to expand court facilities to Effective visions Thinking Vision toward an meet their joint obligations to the can certainly be Adaptive Reuse Plan public, short of a new courthouse. bold, but they It also meant a new, collective also must be A daylong charrette (retreat) vision on how to tackle the court’s realistic and involving top court and county ever-growing space problems. credible. leaders was facilitated by NCSC at a remote county location to Effective visions can certainly be bold, but develop a first-cut preferred vision and optional they also must be realistic and credible. When strategies to address district-court-space grounded in a clear, rational understanding of expansion. A charrette is a final intensive an organization, its environment, and the array effort to conclude a project, especially an of trends pushing it toward the future, a vision architectural design effort, before a deadline.6 6 Charrette is French for “cart” or “carriage.” becomes much more compelling to those who Charrettes promote collaboration and joint In the 16th through the 18th centuries, when must spearhead it. Strategies, then, are easier ownership of solutions, attempt to diffuse travel took long periods, a charrette referred to to construct and assemble to accomplish the confrontational attitudes, and integrate the ideas a long carriage ride in which politicians and vision. No major change or organization-wide and interests of a diverse group of people, most policymakers would be improvements can be realized without these frequently major stakeholders in a project. sequestered together in a final attempt to work intertwined components. Most often, the first through a set of problems during their journey. draft of a realistic, credible, engaging vision New building solutions were “off the table.” comes from a small group of people with a NCSC consultants presented a series of choices broad perspective, seasoned understanding embracing the issue papers, space projections, of the challenges and opportunities facing and available, viable government and private an organization, and a passion to improve, office space in the downtown area for court even if it means taking some sizable risks. functions. After substantial discussion, four That is what happened next in Des Moines. interrelated options gained traction.

Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa 123 Renovate the outdated, largely unused Old Main Move juvenile court functions from the Polk Jail across the street from the Polk County County Courthouse to separate adult and Courthouse as a new, repurposed Criminal juvenile court activities as encouraged by best Courts Building for adult misdemeanor and practices. All acknowledged that adjudicating felony case processing. The Old Main Jail juveniles and adults in the old courthouse, had been used for years as a staging area to with marginal sight-and-sound separation temporarily house pretrial inmates for court and few support-service accommodations for appearances. Prisoners are transported children, created serious safety concerns. daily by the sheriff from a new County Adult Restore and modernize the Polk County Detention Center located some ten miles Courthouse as a civil courts building. from the courthouse and walked through an Probate, family court, guardianships, underground tunnel to the courthouse. First conservatorships, mediation, business appearances take place in a courtroom at the court, civil disputes, jury assembly, court detention center to reduce excessive trans- administration, and civil-based clerk-of-court portation requirements. functions would be housed there. Acquire and reuse a nearby former JC Penney NCSC’s recommendations targeted eight department store as a Justice Center to house interrelated goals. As key objectives for space various court and related functions. The Penney planning, they provided a foundation upon building had been occupied and revamped by which these four options rested. Wellmark Blue Cross Blue Shield, which had moved to a new headquarters building in Des Moines. Wellmark had installed state- of-the-art digital infrastructure during their stay at the Penney Building—an added incentive for the court and county.

Fundamental Space-Planning Goals for the District Court in Polk County 1 Utilize existing county-owned space for justice system operations; reduce dependence on leased space. 2 Functionally use the Old Main Jail for criminal-case-adjudication processes. 3 Keep core criminal/civil-adjudication functions on a downtown campus within close proximity. 4 Separate juvenile- and adult-adjudication functions; colocate juvenile system partners nearby. 5 Locate civil matters and related functions exclusively in a renovated historic Polk County Courthouse. 6 Vacate portions of the historic Polk County Courthouse and phase its restoration as the last adaptive reuse step. 7 Ensure facilities can accommodate long-term justice system growth to the year 2030. 8 Promote design flexibility and cost-savings through shared, multiple-use spaces throughout all facilities.

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Policymakers React Positively and Voters restoration of the historic courthouse Pass an Adaptive Reuse Plan was completed in 2014. Stage II is “The Justice currently in process to transform the Center will The Polk County Board of Supervisors and the remaining floors and exterior of the have a positive district court agreed to pursue and build on the former department store/office building impact on the adaptive reuse plan and objectives developed by into a modern Justice Center for juvenile, lives of children NCSC. The county retained OPN Architects, traffic, and small claims-courts. and families in a local Iowa firm noted for their public-building- Iowa… Children design proficiency and creativity, to examine “The Justice Center will have a positive and families will and flesh-out construction feasibility and impact on the lives of children and no longer share space programming in a phase II study. families in Iowa,” District Court corridors and NCSC became a consultant to OPN in that Chief Judge Arthur Gamble recently waiting space process. The OPN/NCSC team, in early reported, “Children and families with adults 2011, confirmed the adaptive reuse plan will no longer share corridors and charged with was practical and cost-effective. In addition, waiting space with adults charged violent crimes.” the phase II study established that recon- with violent crimes. The new space District Court Chief Judge struction of the Old Main Jail could provide will have separate conference space Arthur Gamble more criminal courtroom growth beyond 2030 for private meetings with juveniles, than originally anticipated. parents, lawyers, juvenile court officers and social workers as well as A phase III study followed to cost out and program courtrooms configured especially for the remaining components of NCSC’s plan: children.” The Justice Center is scheduled the adaptive reuse of the Justice Center and to open in 2016. Polk County Courthouse. Juvenile court functions would be relocated and separated “Stage III will renovate the Old Main Jail from adult adjudications at the Justice Center into a five-story Criminal Courts Building,” for the foreseeable future. In May 2013, the noted Judge Gamble. “The footprint of the county board accepted NCSC and OPN’s building will cover approximately one half master plan. In July, the board authorized an of a city block. Each floor will have space for $81 million referendum vote for November 5, 2013, three courtrooms. High volume misdemeanor to fund the plan. The ballot measure passed and felony courts will be located on the lower overwhelmingly, with 67 percent voting in favor. floors. Negotiation and staging areas will be located outside high volume courtrooms to Three Buildings, Four Stages, Five Years remove plea discussions from the courtroom enhancing the decorum of court proceedings. The acquisition of the Justice Center through Trial courtrooms with secure attorney-client a land swap between the county and Wellmark conference areas will be developed so lawyers permitted a number of early dominos to fall can have private conversations with their into place as stage I of the needed changes. clients rather than holding discussions in The county attorney’s office and clerk of the courtroom as is the current practice. courts’ record-storage functions moved The Criminal Division of the Clerk’s Office, into renovated Justice Center space, saving six district associate judges, four district $582,000 a year in lease costs, and an exterior judges and staff will be housed in the building.

Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa 125 Construction will begin in 2016 upon the (retired) judges who completion of the Justice Center. The Criminal return to handle The real value of Courts Building is projected to open in late 2017.” cases and several the Polk Coun- courtrooms set aside ty experience, Stage IV targets the renovation of the Polk for future growth. however, is the County Courthouse. It will be rehabilitated to Projected completion idea that there accommodate the 21st-century demands of of the restored are creative probate, family law, and civil litigation, complete historic courthouse ways to address with high-tech litigation features. Civil disputes is late 2019. justice system will no longer be resolved in antiquated court- space and facil- 7 Originally, the 1906 rooms too small for their trials.7 Overcrowding The end result will ity issues aside courthouse was designed to function will be relieved; the building will be brought be an integrated from designing with four courtrooms. Today, the district court up to code; and court security will be enhanced. Polk County Justice and building new operates 28 courtrooms countywide, most A jury assembly area will be located on the Campus of three structures from of them shoehorned into inadequate ground floor that will serve the Criminal Courts interrelated court scratch. courthouse space. Building as well. The civil division of the clerk’s buildings, thought- office, court administration, 13 district judges, fully designed and one associate probate judge, and support staff with convenient, complementary services for will have offices in the renovated facility. There the public. “By transforming unused, vacant will be chamber space to accommodate senior buildings near the Historic Court House,

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Renderings of the Justice Center and Polk County Criminal Courts Building Polk County Bar Association President Nathan Overberg agrees: “Lawyers in the County are extremely excited to see the changes taking place. It’s a smart, efficient plan that solves a dire need for much better court space.”

Adaptive reuse approaches have been employed by courts, cities, and counties in other parts of the country on a limited scale, such as rehabbing a small shopping center for use as a probation day-reporting facility in Phoenix, or modifying city council chambers for municipal court proceedings in Missouri. Rarely, however, has it been done to the degree and renovating the Court House itself, we’re that occurred in Polk County. Some may say not only helping to beautify and revitalize the Des Moines story is unique, a one-off the downtown business district,” observed arrangement that has little relevance for the Dave Hill, OPN associate architect and project broader court community. Skepticism often director, “but we’ll simultaneously provide occurs when new ideas and directions surface. the Court and County with a more functional, modern-day work environment, and the public The real value of the Polk County experience, with more inviting, safe and comfortable space.” however, is the idea that there are creative ways to address justice system space and facility issues Local government leaders and the practicing aside from designing and building new structures bar are pleased with these new directions, from scratch. Polk County and Iowa’s Fifth too. “The project has been very successful,” Judicial District found ways to adapt several Tom Hockensmith, chairman of the Polk County older buildings into an innovative campus for Board of Supervisors, recently said. “By using a brighter future. It may not be feasible for older, unused buildings and documenting the courts and justice facilities in all settings, but efficiencies in doing so, along with economizing it certainly presents an option worth exploring space in them, both the voters and County when new construction is out of reach. Board were able to ‘hit it out of the park’ with this new approach to a long-term problem.”

Adaptive Reuse of Old Buildings for New Court Functions in Polk County, Iowa 127 NCSC Officers and Management Staff

National Center for State Courts Court Consulting Services Headquarters 707 Seventeenth Street, Suite 2900 300 Newport Avenue Denver, CO 80202-3429 Williamsburg, VA 23185 Daniel J. Hall, Vice President, Mary Campbell McQueen, President Court Consulting Services

Robert N. Baldwin, Executive Vice President and General Counsel NCSC International 2425 Wilson Boulevard, Suite 350 Thomas M. Clarke, Vice President, Arlington, VA 22201 Research and Technology

Jeffrey A. Apperson, Vice President, John R. Meeks, Vice President, International Program Division Institute for Court Management

Jesse Rutledge, Vice President, External Affairs Government Relations Gwen W. Williams, Chief Financial Officer and 111 Second Street NE Vice President of Finance and Administration Washington, DC 20002

128 Trends in State Courts 2016 A Call for Article Submissions

Trends in State Courts is an annual, peer-reviewed publication that highlights innovative practices in critical areas that are of interest to courts, and often serves as a guide for developing new initiatives and programs, and informing and supporting policy decisions. Trends in State Courts is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically.

Submissions for the 2017 edition are now being accepted. Please email abstracts of no more than 500 words by October 15, 2016 to Deborah Smith at [email protected]. Abstracts received after this date are welcome and will be considered for later editions or for our monthly online version.

Visit the Trends in State Courts website at www.ncsc.org/trends for more information and detailed submission guidelines. www.ncsc.org