Courts “functionally disabled” due to cuts

Budget cuts have created a “functionally disabled judiciary” that strains the lives of families and the operations of Massachusetts’ businesses in real and immeasurable ways, according to a panel of legal and corporate experts.

“Justice is not a public policy choice,” Margaret Marshall, chief justice of the Massachusetts Supreme Judicial Court, told a forum Monday morning at the Rappaport Center for Law and Public Service at Suffolk University Law School. “The residents of Massachusetts could no more make do with a functionally disabled judiciary than they could make do with a functionally disabled governor’s office or a functionally disabled Legislature.”

The Massachusetts judicial system is in such dire financial straits that the budget proposed by the House could mean closing courts, eliminating at least 750 positions and wreaking havoc on the lives of 42,000 people who come to the commonwealth’s courts every day, says Marshall.

Marshall says the House Ways and Means budget, which lawmakers began debating Monday, allocates $76 million less than the courts received in fiscal 2009 and is $30.1 million below level-funding from last year. Robert Mulligan, chief justice of administration and finance, said for every $10 million the courts are underfunded means a cut of 250 positions. 

Both Marshall and Mulligan said one significant key to budget stability is “full transferability of funds.” They pointed to the Probation Department, whose 2,200 employees are part of the Trial Court but whose $150 million budget the Legislature has made off-limits from Mulligan’s authority. The issue is not new – CommonWealth magazine has written several stories dealing with the probation debate – but the two justices said there is a greater urgency for the funding flexibility with the budget belt tightening.

Mulligan said a proposal by Gov. Deval Patrick to move the probation department to the executive branch, a measure not included in the House budget, would also not resolve the problem. He said Patrick’s proposal leaves 537 probation positions in the family and juvenile courts without the necessary $30.2 million in funding. 

“We are feeling it,” Mulligan said.

Other members of the panel from the legal and business sector said the impact of the cuts is reverberating beyond the courtrooms. Paul T. Dacier, general counsel for EMC corporation, said employees are missing time at work because of long waits in divorce, child custody, housing, adoption proceedings and civil and criminal trials. He said complex business litigation is being hamstrung as well.

“What am I supposed to do, as one of the state’s largest employers, when somebody steals my trade secrets,” Dacier asked.

John J. Regan, president of the Boston Bar Association which issued a Task Force report with recommendations last month, said the recession has exacerbated the problems. Regan said there is evidence of a heightened demand in Probate and Family Court of people seeking child support modifications because of job loss and the number of pro se litigants – those who represent themselves without a lawyer – is markedly on the increase, creating peril that justice is not being served in many cases.

Regan said there are only 33 paid law clerks are available for the state’s 82 Superior Court judges, with the remaining demand being filled in by volunteers.

William J. Leahy, chief counsel for the Committee for Public Counsel Services which provides publicly funded lawyers for indigent defendants, said the cuts are having a “crushing impact on the poor.” He called for an increase in “criminal diversion” efforts by the district attorneys as one way to alleviate overcrowded courts.

Mulligan said there are also growing personnel issues that the courts are facing. He said the courts’ 3,500 union clerical workers, who negotiated an annual 3 percent pay raise in 2007, have not received that increase in the last two years. The pay hikes, which are being grieved, add up to $30 million so far and are rising.

Marshall called information technology key to efficiency and transparency for the courts but said there is no money to upgrade the IT capabilities or the judiciary’s website, a process that requires people to go to court clerks for records. Unlike the federal system or many other states, Massachusetts only posts Spartan docket information, calendar updates and attorneys for parties online. Criminal information can only be accessed if a searcher knows the docket number.

Marshall said there is also a balance between privacy and transparency that needs to be addressed before record access at the click of a mouse becomes more robust. But she acknowledged the role computers have played in her management of the judicial system since her appointment as chief justice.

“I no longer manage by anecdote,” she said. “I now manage by data.”