If you thought that Court under-funding in California was unconstitutional last year.... "Whoa, Nelly!"

According to press reports, the legislature's court budget cuts of $150 million for operations and $310 million in court construction funding have increased after Governor Jerry Brown used line item veto power to slash another $22 million from California trial court operations and security.  Underfunding at this level is unconstitutional.  The judiciary is a co-equal, constitutional branch of government.  It cannot function correctly at this funding level.  The Legislature and Governor do not suffer equivalent operational impairment from the budget cuts they impose elsewhere.  Only the judicial branch must suplicate, hat in hand, for enough money to do the people's work.

The past three years account for a 30% general funding cut for California's Courts.  I don't think their obligations decreased by 30%.  If anything, a difficult economy creates more litigation events.

I wrote about this previously here and copied a Daily Journal article on the subject here.

California's budget problems are threatening a constitutional crisis

A colleague of mine (Linh Hua) and I have been talking out an issue that has troubled me for some time now.  It occurred to me that there must be a constitutional limit of some sort to the underfunding of California's judiciary.  I didn't have any specific case in mind when the concept crossed my mind, and my discussions with other practitioners elicited general agreement without specific supporting authority.  Coincidentally, just as I began to look into this issue, a confirming answer of sorts dropped into my lap.

This evening (for publication on 2/24/2010), Joel Stashenko reports in the New York Law Journal that New York's highest court has held unconstitutional the failure to grant pay raises to judges for the last 11 years.  Joel Stashenko, Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional (February 24, 2010) www.law.com.  The high court (the New York Court of Appeals) declared the de facto pay freeze a "crisis" that threatened the separation of powers.  Declining requests for an order mandating an immediate pay raise, the Court said, "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature."

While the Court proceeded with caution, it also warned, "It [the Legislature] should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court," citing Marbury v. Madison, 1 Cranch 137 (1803). "We therefore expect appropriate and expeditious legislative consideration."

Writing for the 5-1 majority, Judge Pigott said, "Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis, and this constitutes a violation of the Separation of Power doctrine."

In California we don't just have a pay crisis, we have a funding crisis.  Our Courts are closed one Wednesday each month, and I've heard mention that an additional closure day is under consideration by some.  We've lost a complex litigation court in Los Angeles County, a court designed to better manage the burdens imposed by complex, multi-party litigation.  If the pay issue in New York is a constitutional "crisis," what California is experiencing is a constitutional debacle.  The judiciary is not just impaired here, it is hamstrung and handcuffed.  As participants operating within one of the presumably co-equal branches of government, we must be vigilant and speak out when it is clear that a failure by one branch imperils the unfettered operation of another.

I intend to continue speaking about this issue until the futility of it all depresses me into silence.

Los Angeles County Superior Court set to close one complex litigation courtroom

According to the Daily Journal (subscription required), Los Angeles Superior Court will close one of its seven complex litigation courtrooms as of April 12, 2010.  The closure is projected to save the Court $600,000.  "Judge Peter Lichtman will be transferred from his current assignment at Central Civil West to the Stanley Mosk courthouse downtown, and employees working in his courtroom will be reassigned."  The complex litigation program has, in the last year, declined to take class actions with increasing frequency.  The closure of one of the complex litigation courtrooms is a significant loss for the people of Los Angeles County.  The concentration of experience with the management of complex litigation matters and class actions simply cannot be duplicated in the general civil departments.  But here we see yet another casualty of the grossly incompetent management of California's fiscal affairs.

Update on 2010-01-14 06:38 by The Complex Litigator

A reader asks an important question: how will closing the department and moving the Judge and staff save $600,000?  Good question.  This reader points out that the cases won't go away, so the work will get distributed to other judges.  Assuming that a net reduction of staff occurs, i.e., that the staff of this department fill vacancies elsewhere and the system continues with one less department, it is still not obvious that you arrive at a figure of $600,000 from the salaries and benefits cut.  Anyhow, so much for our co-equal third branch of government, which gets to stand in the soup line and wait for the other two branches to figure a way out of the mess they've made of things.