THE BUSINESS CASE FOR COURT-PRINCIPLES-BASED while that same person with a retirement income of $45,000 (70 percent of ESSENTIAL FUNCTIONS preretirement income) pays only $1,987 in state taxes. Thomas M. Clarke The persistently disproportionate increases in health and welfare costs for Vice President, Research and Technology, National Center for State Courts state and local governments only make this negative fiscal trend worse. The imposition over the last 20 years of structural constraints on revenue expansion has put many states into a position of chronic crisis. Although the long-term Primarily in response to the current deep economic recession and its attendant degradation in state and local government fiscal health is dominated right now impacts on state and local revenue and budgets, the National Center for State by the worst recession since the Great Depression, it is not the short-term Courts (NCSC) has worked with a number of state supreme courts and court business-cycle crisis that will drive most reengineering in the courts. Rather, administrative offices to “reengineer” their state court systems. Other states it will be the continual pressure to cut budgets year in and year out after the have begun similar projects without NCSC assistance. What these projects economy recovers and the business cycle improves. have in common is a desire by the state courts to reinvent themselves in ways that preserve their quality of justice and level of services while becoming If these negative trends are not depressing enough, state governments are dramatically more efficient. In these efforts, everything is on the table: now revealing that they have large, unfunded pension-fund liabilities. Any statutes, court rules, business processes, use of technology, staffing models. available response to that new problem will have undesirable consequences Systemic changes that were once thought to be politically impossible are now for the courts. Policy solutions range from reductions in retirement benefits being proposed and, in some cases, implemented. to state government defaults on debt, and a number of less extreme options in between. The one sure thing is that this additional worry will put state Three trends driving these changes are the baby-boom tidal wave, the state revenues and budgets under even more pressure. court response to periodic budget crises, and the social changes being driven by technology. As large cohorts of baby boomers retire and are replaced in When state and local governments are weathering a temporary storm like a Essential Functions of Courts the workforce by smaller cohorts, the effect will be a continual increase in business-cycle recession, it is reasonable to ask the legislative branch to hold demand for state and local services and a simultaneous reduction in available the courts harmless or cut their budgets less than the executive branch on state and local revenue. constitutional grounds. Similarly, it is reasonable for courts to freeze hiring, This unfortunate imbalance travel, and training; impose furloughs on judicial and clerical staff; and even Court Reengineering Drivers occurs because retirees pay impose salary freezes and cuts. Some court services or functions may be less in taxes and consume • State Court Response to Periodic temporarily discontinued or delayed. All of these responses make sense when Budget Crises more in services than the expectation is that resources will recover in a year to two. A very different workers. For example, the set of responses are needed if the pressure on resources persists for 10 or 20 • Social Changes Driven by Technology Minnesota chief economist years. calculates that a worker • Baby-Boom Tidal Wave making $65,000 per year Even short-term budget reductions may motivate more drastic responses by pays $4,682 in state taxes, state court systems when the bleeding becomes deep enough to threaten the 8 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts ability of the courts to adequately carry out A compelling case can be made for the necessity of establishing a normative Essential Functions of Courts their constitutional duties as a separate branch Longer-term gains basis for essential court functions. A careful reading of case law about the of government. Several states are asserting that in efficiency from appropriate application of inherent-powers arguments for adequate court they are reaching that limit and any additional funding reveals a persistent problem. Such cases almost without exception cuts will force them over the edge, since they reengineering assert a conceptual standard based on the ability of the court to carry out its have already made every possible short-run projects will just constitutional mission, but the opinions nowhere provide any guidance or adjustment. Longer-term gains in efficiency not arrive in time to operational detail on what the minimum bar for functionality is. That approach from reengineering projects will just not arrive solve the immediate leaves plenty of room for honest disagreement and enough wriggle room for in time to solve the immediate constitutional funding bodies to irrevocably reduce court budgets before it becomes evident crisis. The chief justice of Kentucky made just constitutional crisis. that their constitutional role has been fatally injured. such a claim to the state legislature early in 2010. Courts themselves have typically responded to this problem by prioritizing While resource pressure will be the primary driver of court reengineering, the cases by case type and case severity. So, first-degree-murder cases are the top courts have added to that pressure by taking on functions that may legitimately priority, and traffic-citation cases are often the bottom category. The intended be considered part of their core mission. NCSC proposes to work with courts strategy is to stop processing case types, working up from the lowest priority, on a new project to establish what the principles-based essential functions of as funding decreases. This is neither a programmatic, strategic, nor normative courts are. If the courts can establish what they are operationally required to approach to an adequate solution to the court-funding problem. To the extent do to fulfill their constitutional function, starting from normative principles, that both funders and the public can live without low-priority case types being then those principles will enable the courts to provide a solid footing for their processed, it establishes a very bad precedent. Finally, it slowly but surely budget requests. Without that stake in the ground, the courts may make their erodes the rule of law, sometimes for those disadvantaged groups who can least own resource problems worse by continuing to fund and carry out functions afford it and most need the protection of the courts. better done by other government agencies. NCSC’s Proposed Principles-Based Reengineering of the State Courts Courts establish what Normative Principles Eliminate functions Essential function Reengineer state they are operationally - consensus better done by other operational plan courts to new required to do to fulfill within the court government agencies forms the basis of functional and their constitutional communuity budget requests budget paradigm function The Business Case for Court-Principles-Based Essential Functions 9 The constitutional role of the judiciary is critical to national civic and economic health. It is not overly dramatic to say that our way of life depends on the maintenance of the rule of law. It is simply not acceptable to significantly delay justice or stop providing certain court services of purportedly lesser significance. That path will lead quickly to a hollowed-out institution of increasingly marginal social value and legitimacy. While reengineering initiatives may ultimately relieve some of the budgetary pressure on state courts, the only acceptable response is a strategy that draws a normative line in the sand and tells funding bodies they may go no further down the road of budget reductions for courts. At the same time, the courts do not want to yell “wolf ” too often. Some current court functions threatened by resource shortages do not directly support rule of law and probably could be shed without significant threat to the constitutional role of the judicial branch. That is another reason why a project to establish a consensus within the court community on what the principles- based essential functions of courts are is an important precursor to any work on court reengineering and ultimately a critical factor in maintaining the viability of the state courts as an institution in the face of the erosive budget crisis. Let us not pretend that identifying what those normative principles are for establishing essential functions will be easy. It will be even more difficult Essential Functions of Courts to gain a semblance of consensus behind them among the court community as competing interests fight for their beloved programs and priorities. Nevertheless, it is an important step in the defense of the courts and protection of the institution. Can we afford not to be successful? 10 Future Trends in State Courts 2010 | Reengineering: The Essential Functions of Courts.