We are always trying to improve the justice system and to make it more responsive and available to all of the citizens of the state of Colorado. We have studied it, debated it, lobbied for it, organized conferences about it,1 and developed some very creative ideas about how to improve access to justice for our underserved litigants.
Have we ever considered the possibility that we could design a justice system that responds to all of the public’s needs, but may never be able to afford to implement it? In many respects, our judicial system is running out of money precisely at a time when we are making real progress to improve access to justice for the poor and indigent and otherwise unrepresented members of our society.
Recently, I met with Chief Justice Mary Mullarkey of the Colorado Supreme Court to discuss the severe financial issues that are facing the Court. In the same week, I asked ten prominent members of our bar association2 to become charter members of a statewide Access to Justice Commission that promises to coordinate and improve the opportunities for Colorado citizens to use our court system. Ironically, just when we are directing our efforts toward opening the court system to all who need it, the court system is having to cut back its services and its capacity.
It is time to consider a different approach to funding for the courts.
The Current Budget Issues
The State Judicial Department in Colorado has a current budget of approximately $177 million, after required reductions last year. Following the elections in November 2002, it became apparent that the judiciary needs to plan for a significant further reduction of its budget. The courts have imposed a hiring freeze, which has been in effect since September 1, 2002. Laudably, district court judges have contributed personal funds to mitigate lost income for their staffs who have been ordered to take an unpaid furlough for at least three days. Near the turn of the last century, some of the wealthy railroad moguls were urged by the unions to do the same thing for railroad workers, but our district court judges are not moguls—and even the moguls said that was no way to run a railroad.
It is not hard to understand why the Judicial Department has been the target of substantial budget cuts in the past couple of years. In the list of general funding by department, the Judicial Department represents only approximately 3 percent of the total general fund budget, but it ranks as the sixth largest department in the general fund appropriations, behind the Department of Education (whose budget is constitutionally mandated), health-care policy and financing (including Medicaid), higher education, human services (including non-medical social services), and corrections. One member of the Joint Budget Committee recently summarized the budget dilemma in Colorado by observing that approximately 50 percent of the budget recipients have to absorb 100 percent of the budget cuts. Our Judicial Department is one of that group.
Funding and support of state services is generally a difficult task during a receding economy. Nevertheless, the support of the Judicial Branch is critical to constitutional balance of powers in the state. Forgetting for the moment all of the bells and whistles that every practicing lawyer would like to see in the judicial system, the simple maintenance of the court to resolve disputes and interpret the law is at risk here.
Training of Judges
Moreover, the court’s training budget is gone. It was decimated by the budget cuts last year and is not likely to be funded again this year. Judicial education is critical to the successful functioning of our courts. The orientation and training in increasingly complex substantive areas is very important, especially for the new judges for whom we fought to have approved and funded. Several efforts are under way to fill the gap in judicial training outside of the state budget:
• To provide a vehicle for funding of the judicial conference, the Colorado Judicial Institute has formed a non-profit corporation to solicit private funding for judicial training. The separate corporation will insulate the judiciary from the appearance of impropriety in accepting private funds for judicial education. I and other members of the CBA committees will be contacting local foundations and private donors to encourage them to fund judicial education.
• The CBA-CLE family law program in February will be provided free of charge to any judge who attends. From now on, all of the continuing education institutes will be offered to our judges for only the cost of the published materials.
• There is now an effort in place to reduce the need for judicial interpretation and education regarding complexities and inconsistencies in our statutes. I have asked each substantive section of the CBA to review statutes governing their respective substantive areas to determine if there are outdated, inconsistent, or arcane pieces of legislation that can be repealed or rewritten so that less judicial time will need to be spent in interpreting and reviewing them.
Access to Justice Improvements
All of these budgetary constraints come at a time when we are trying to make our courts more accessible to the citizens of Colorado. The Supreme Court (under the guidance and direction of Justice Gregory Hobbs, working with David Butler of Holland & Hart) has designed and supported a statewide Access to Justice Commission.3 The Commission’s purpose is to coordinate, expand, and improve many of the local access to justice programs, as well as to provide judicial support for access to justice for those persons who are not otherwise able to use the court system.
In addition to assistance for the poor and indigent, these programs need to consider how our courts can be more accessible and effective for resolution of small and moderate-sized disputes. Before the public will support the funding of any effective court system, the court system must be relevant to the public. If the majority of the citizens of Colorado cannot litigate their disputes economically and effectively in Colorado courts, the court system is irrelevant to them. If it is irrelevant to them, how can we expect them to support changes to the system, even if the changes represent improvements?
C.R.C.P. 1.1, the simplified civil procedure rule for smaller cases, is a step in the right direction. The Rule 1.1 Pilot Project was a recommendation of the Governor’s Task Force on Civil Justice Reform in 1999. It was implemented experimentally in one courtroom in each of Jefferson County and Adams County. In these cases, if the amount in controversy is less than $100,000 (or the litigants opt to waive the monetary limit), the procedure provides for limited discovery, an early conference with the judge, and full and complete disclosure of all facts and exhibits at an early stage in the case. Interestingly enough, it is reported that this simplified procedure has produced a substantially higher percentage of settlements. There is no better way to lighten the burden on the court system and to develop confidence in the justice system than by adopting a procedure that will allow litigants to promptly, efficiently, and economically resolve their own disputes.4
How Do We Balance
Funding and Access?
Is there a solution? Probably every Bar president has written about some issue dealing with the judiciary, such as judicial salaries, selection of judges, qualifications of judges, and access to the court system. These issues are chronic, and we will probably never have the luxury of having a court system that responds to everyone’s needs at all times. However, this is one of the darker hours for our judiciary. With the state economy in trouble, the judicial budget tied to the general fund, and a growing court docket with one out of every six Coloradans having some sort of court business, the funding system for this branch of the government simply must be revamped.
The solutions are not easy. Whenever legislative or constitutional reform may be necessary to permit the judicial branch to establish its own budget, to fund its own operations, and develop systems to meet the public demand, such reform may be controversial and unacceptable to the politicians, and worse, the general public. Even if one out of every six Coloradans has some experience with the Colorado court system, it does not mean that he or she has enjoyed that experience. The public perception of the courts is that the process is expensive, confusing, and ineffective to provide an economic and speedy resolution of disputes.
To fund the court system at optimum levels, the court should have power to create self-funding mechanisms to support its budget. If the court raises civil court filing fees or imposes fees for motions and other interlocutory filings, it may be able to fund a budget consistent with its caseload, but such measures will necessarily increase the cost of access to the system by the persons who need access the most. Moreover, to decouple the Judicial Department from the general fund budget would require legislative intervention or perhaps an initiated referendum. We have a Bar committee that is now studying the issue. It is hoped that an achievable solution soon can be identified and pursued.
For the moment, the CBA is approaching judicial access from both sides of the problem. We are looking forward to the work of the new statewide Access to Justice Commission to coordinate and develop effective assistance to our citizens who need the courts. At the same time, we are committed to ensure that our judges have the best training and continuing education possible, and will explore all available alternatives to permit the Judicial Branch, one of the three equal branches of our government, to be able to plan and fund its budget adequately to provide the judicial service that all of our citizens deserve.
1. In April 2002, the CBA organized and conducted a Citizen’s Justice Summit, a conference that was attended by more than 100 citizens of the state who have had business with the courts, including probation officers, jurors, school officials, victims, and litigants. See "Photo Highlights of the Citizens Justice Summit, April 20, 2002," 31 The Colorado Lawyer 32 (June 2002). Laird Milburn, past-president of the CBA, made the Citizen’s Justice Summit one of the centerpieces of his administration. The conference report made several recommendations to improve the justice system, which are being studied for implementation by a CBA Committee on the Courts, chaired by Constance Talmadge.
2. The CBA appointees to the Access to Justice Commission are: Judge William D. Alexander, Pueblo; Darla Benford, Aurora; Aaron R. Clay, Delta; Yolanda M. Fennick, Colorado Springs; Pamela A. Gagel, Denver; Judge David R. Juarez, Adams County; Richard E. Mishkin, Lakewood; Susan Parenteau, Boulder; Lynne Sholler, Durango; and Constance C. Talmadge, Denver. Other members of the Commission appointed by the Supreme Court are Judge Angela R. Arkin, Arapahoe County; Jonathan D. Asher, Denver; David Butler, Denver; Justice Gregory J. Hobbs, Jr., Denver; Judge Barney Iuppa, Colorado Springs; Meredith McBurney, Denver; and Judge Jo Ann L. Vogt, Denver. See also, note 3, infra.
3. See Butler, "Improving Access to Justice Through Local Committees and a Statewide Commission," 31 The Colorado Lawyer 77 (Oct. 2002); Salazar, "Access to Justice 2002: Discussions at the Conference," 31 The Colorado Lawyer 31 (Dec. 2002).
4. See generally Adams and Cook, "The Case for Early ADR Intervention," 31 The Colorado Lawyer 11 (Dec. 2002).