Fixing the Courts
Discussions of legal issues often tend toward excessive wordiness. This one, however, got right to the point.
By blasting the Commonwealth’s judicial system as being "mired in confusion" and dysfunctional in its management structure, a panel called The Visiting Committee on Management in the Courts might have raised a few eyebrows, but didn’t shock too many observers of the courts.
How to fix the courts’ problems, however, is where differences of opinion begin.
The Visiting Committee, a panel of business and academic leaders appointed by Supreme Judicial Court Chief Justice Margaret Mitchell with the backing of the state Legislature and Gov. Mitt Romney’s administration is calling
for a sweeping program to repair the system’s inefficient workings. The strategy includes installation of a clearer administrative authority, tougher performance standards for lagging courthouses and employees, and a more disciplined budget process.
The recommendations all indicate that inefficiency is the problem, but to suggest that this stems from the different methods of doing business from district to district might be a mistake, said attorney Nancy Frankel Pelletier, a partner and member of the Executive Committee with Robinson Donovan, P.C. in Springfield.
"There is generally complete inconsistency in terms of how the courts are managed, and that’s at all levels. Each county essentially handles its business differently," Pelletier said. "Obviously, some people at the top feel that doesn’t make any sense.
"However," she continued, "frankly, I’ve found over the years that the courts that are the most autonomous do business more efficiently that those governed from on high. Inconsistency might not be a negative thing."
What is hurting the system, she and other lawyers assert, is a badly funded system that leaves courts hurting for key personnel and backs up the process for plaintiffs and defendants who deserve prompt service. But that’s an old story, and it’s not one that’s bound to improve as Romney seeks to make statewide cuts in order to close a $3 billion state budget shortfall.
The Visiting Committee’s report isn’t the first of its kind, legal experts say, and it won’t be the last. And addressing its sweeping proposals might be a losing proposition without the funds to back up the effort. If the courts are indeed drowning in inefficiency, they tell BusinessWest, this report may be a cry for help, but, under the current economic circumstances, it isn’t exactly a life preserver.
The report does aim to be just that, however, by aggressively detailing a number of problems plaguing the courts and outlining possible solutions. Chaired by J. Donald Monan, chancellor of Boston College, the committee recognized "pockets of excellence" in the system, but said that, for the most part, constituents are not getting the justice they deserve because of inefficiency and slow case resolution.
"Today, the courts of Massachusetts are mired in managerial confusion," the report says. "The impact of high-quality judicial decisions is undermined by high cost, slow action, and poor service to the community."
That managerial chaos means court personnel and managers don’t know where to turn for guidance, while reporting lines are vague at best, the report asserts, adding that the situation could be remedied by increasing management experience in the Judiciary administration. That concept met with mixed reviews locally.
According to Paul Rothschild, a partner with Bacon & Wilson P.C. in Springfield who specializes in civil litigation, studies have shown that placing management of the court system in the hands of judges has not worked.
"The Judiciary is not the appropriate party and is not trained and capable of managing the system," Rothschild said. "It should be run by managers with some type of management experience. The system is in disarray, and it needs some type of professional management and some clear financial support from the Legislature and the governor to put it together. The goal is to find the most efficient, effective way of running the courts, and we clearly don’t have that now."
However, Pelletier said, it’s difficult for managers to have a full understanding of the system without legal expertise. "There are those, and Gov. Romney might be one of them, who think we need a professional manager, not a judge or lawyer, to manage judges and lawyers," she said. "But I don’t think that will work because, to properly manage the system, I think you have to have a complete understanding of how justice is administered from within."
The panel also took the judicial system to task for how inefficiently resources are allocated. The committee recommended that budget and staffing requests and allocations be made on demonstrated needs, not history, and that the budget request process be redesigned so that resources are directed to courthouses in need, among other changes.
That could be good news for Springfield’s court officials, who have long complained that funding for Hampden County has been disproportionately low compared to what courts in Eastern Mass. receive.
"This has been an ongoing problem," Rothschild said. "The Springfield District Court is the busiest court in the state, especially by virtue of criminal case load, and it was considerably underfunded compared to those in the Boston area."
The Jury Is Out
But the question of efficient allocation of resources has come up in several recent studies, he added, none of which explicitly addresses the problem Springfield faces.
For instance, Romney has proposed merging the Boston Municipal Court, which acts as its own entity, into the district court system and closing a number of district courts, eliminating some duplication in administrative staffs. Meanwhile, the Legislature has come up with its own proposal that would expand the scope of the Boston Municipal Court to encompass several other municipal courts around Boston, also removing some duplication of duties while evening off the money spent in various districts.
But if the funding disparity doesn’t directly address Springfield, area law experts say, the city will see more problems such as what emerged last year when a funding shortage forced a decrease in the number of court stenographers. While criminal cases got priority, attorneys saw a major logjam develop on the civil side.
Sam Stonefield, an attorney and professor of Law at the Western New England College School of Law, said the funding disparity in Western Mass. courts has reached crisis levels, but, as the flurry of recent studies and reports have shown, there isn’t sufficient consensus to address the issue.
"If you look at budget allocation, there’s clearly no agreement. When you look at performance guidelines, there’s no agreement. And in the hiring and supervision of employees, there’s no agreement in the three branches of government or within the Judiciary itself," Stonefield said. "I think that undermines the performance of the court system and ultimately undermines its ability to deliver justice to its citizens."
Meanwhile, Rothschild said, every cutback affects Western Mass. courts more than it does those closer to Boston, and that affects morale since clerks and other employees don’t know if their jobs are safe. At the same time, cases move more slowly, and justice grinds to a crawl.
In addressing what he considers the top two issues facing the courts, funding and budget allocation "the allocation of resources is indefensible," he said Stonefield hopes the Visiting Committee’s report can serve as a template to try to bring together some of the disparate voices calling for change.
But he said there must be a framework for judging the performance of the courts before there can be meaningful change in how those courts are funded. It’s a similar situation to that of education, which developed the framework of the MCAS exam to better understand how resources should be channeled.
"That’s a hard thing to do," he said, "but, in today’s climate, no one can simply say, ’we need more money’ without saying what the money is going to be used for."
In that, he agrees with the panel’s emphasis on high performance and accountability in its report. The committee wants to establish goals with benchmarks and measurements, including a standard cost per case handled, customer service studies, and complaint tracking. It also wants to create detailed job descriptions; measure managers and employees by efficiency, courtesy, and timing; establish employee and management reviews; create consequences for poor performance; and publish court rankings.
"Not one court is able to point to clearly defined benchmarks by which it measures itself on decision-making quality, efficiency, timeliness, and service," the report states. "There are almost no definitions of what a good job or a bad job looks like."
After visiting 14 courthouses, interviewing 165 court and community officials, and presenting a hefty set of recommendations, the Visiting Committee recognizes that reaching some kind of consensus among the three branches of government is paramount to bringing about any change.
"The committee realizes that the key to our recommendations will lie in their implementation," Monan said. "Our recommendations can only be implemented through the cooperative action of the judicial, legislative, and executive branches."
Mitchell, who commissioned the report, said she will review it with other Supreme Judicial Court justices in the coming weeks, while consulting with legislative leaders and pushing for implementation of managerial change as soon as possible.
For its part, the Mass. Bar Assoc. welcomed the report, while appointing its own task force to conduct Court Study 2003, a similar examination of the state’s judicial workings.
"We believe that, taken together, these reports will present the most complete assessment of our courts today and provide the most fair recommendations for the future," said Joseph P. J. Vrabel, MBA president.
Pelletier reminded BusinessWest, however, that positive steps have already been taken to improve efficiency in some areas. For example, district courts had traditionally tried civil cases involving less than $25,000 before a judge, but a losing plaintiff could then exercise his rights to a jury trial, doubling the resources and time needed to handle that case. To respond to that wastefulness, a program was instituted giving plaintiffs a six-member jury to begin with, immediately cutting down on long-term court costs.
"I think there have been some great strides made recently at the state level," Pelletier said, while recognizing the need to tackle larger budget issues. She worries, however, about how much can actually be done considering the state’s current budget crisis. "I’m sure the executive branch has been looking at these issues, but, unfortunately, the economics of the situation may cause it to go nowhere."
"There is an awful lot of waste, an awful lot of duplication," Rothschild said. "I don’t know how you get around it. You can’t turn government into a private business, but you can probably treat it more like a business than we do."
For his part, Stonefield said he agrees 100% with the panel’s assessment of the Judiciary’s problems. Even considering the challenge of creating consensus that now faces the state’s lawmakers, he called it a positive start. "Hopefully, out of this crisis will come a framework for a long-term commitment."
’Long-term’ might be the best choice of words to describe the mere process of enacting change. The job ahead is a daunting one, to be sure, but lawmakers and court officials may have the most detailed blueprint yet to begin restoring order in the courts.