As reported in the Boston Globe last week, the justices of the Massachusetts Supreme Judicial Court asked Governor Deval Patrick for a moratorium on judicial appointments. The recent budget cuts have severely undermined the ability of the courts to administer justice in the Commonwealth, and, as Associate Justice Robert J. Cordy put it, the system “can’t even support the judges we have in our courts now.”
The reaction from the Governor’s office was defensive and critical. The governor’s legal counsel, Mark Reilly, admonished the SJC for “this attempt to constrain the governor’s constitutional authority,” while Lieutenant Governor Timothy P. Murray stated that, despite the request by the justices, the governor would continue to make judicial appointments.
The Governor’s representatives—and perhaps the Governor himself—appear to be laboring under a misunderstanding about exactly what authority the Massachusetts Constitution provides the executive when it comes to judicial appointments.
Under the Massachusetts Constitution, the governor has the power to nominate and to appoint all judicial officers, with the advice and consent of the council. Importantly, nowhere does the constitution say that the governor is obligated to appoint judges when positions are vacant; rather, the constitution simply makes clear that the governor has the authority to fill vacancies in his discretion.
What this means, of course, is that the governor may choose not to use this authority, and to leave some judicial positions empty. The justices of the SJC were asking the governor to do just that, and for good reason: it makes no sense to fill judicial vacancies when the Massachusetts court system is in a state of fiscal crisis.
As recently reported, the court system’s funding has been reduced by 16 percent in the past three years. The system has lost more than a thousand employees in that time and now is faced with the prospect of shuttering almost a dozen courthouses in order to operate within its budget. Each new trial judge appointed will result in the court system laying off three staff members.
Neither the legislature nor the governor appears to recognize that the court system is not just another state agency. Rather, it is a co-equal branch of government charged with constitutionally-mandated tasks—namely, “the impartial interpretation of the laws, and administration of justice.” When the ability of courts to perform these core functions is severely threatened, the judiciary is not without recourse: it has long been understood that, as a constitutional matter and in appropriate circumstances, the courts have the power to prevent the impairment of their core functions due to inadequate facilities or resources.
At the moment, that power remains untouched. It is understandably a last resort, and the request that the governor suspend judicial appointments until the crisis has been resolved can be seen as an effort by the SJC to ensure that it remains a last resort. That the governor views this reasonable request as a threat to his authority to make judicial appointments is not just legally mistaken, it is short-sighted. Now is the time when the governor should be leading the effort to resolve the funding crisis, so that sooner rather than later he can resume making judicial appointments without further undermining an already overburdened court system.
Lawrence Friedman
Showing posts with label Court Funding. Show all posts
Showing posts with label Court Funding. Show all posts
July 18, 2011
May 26, 2011
Budget Cutbacks Undermine Massachusetts Constitution
Recently, the Boston Bar Association issued a report on the proposed Massachusetts budget for 2012. The report is titled “Justice on the Road to Ruin,” and makes clear that the Massachusetts court system has been making do with too little for too long. Within the past three years, the total funding for the court system has been reduced by more than 14 percent. Positions are going unfilled, dockets are becoming clogged, and the court system is trying not to do more with less, but merely to stay afloat.
One of the early casualties of the budget process was trial court law clerks. These recently graduated law students assisted the judges in the various trial departments – the Superior Court, the Land Court, the Family & Probate Court, and the Juvenile Court – with research and writing opinions and decisions.
The loss of these positions may strike some critics as inconsequential. Why, they might ask, can’t the judges do their own research and writing?
Many judges would probably like to do more research and writing, but the fact is, they are busy judging. They are hearing cases, meeting with attorneys, and attending to the many administrative matters that keep the Massachusetts court system running. They do not have much time left for the kind of in-depth research that, say, a complicated motion for summary judgment requires.
What this means is that trial court litigants may not fully appreciate why they lost their motion or case, and it could mean they are unsure of the grounds on which they might appeal. Further, as one appellate judge told me, in the long term, fewer narrative decisions and opinions mean more work for the appellate courts in reconstructing the basis for the trial court’s determination.
A tangential result of the increased time that state appellate courts must devote simply to understanding the lower court’s ruling is less time, in constitutional cases, to devote to the hard work of interpreting the state constitution. Massachusetts state constitutional claims arise in many criminal and individual rights cases, and the Commonwealth’s appellate courts have a long and storied history of taking seriously the task of figuring out just what it is that the state constitution means in a particular instance, often concluding that it provides more protection than its federal counterpart.
Budget cutbacks necessarily undermine serious efforts at state constitutional interpretation. As I explain in an article forthcoming in the Penn State University Law Review, a lack of time and law clerk resources inhibit the ability of state courts to fully develop their own constitutional law, which results in recourse by these courts to the principles announced by the U.S. Supreme Court, interpreting the federal constitution.
Now, there may be reasons why similarly-worded constitutional state and federal protections should be interpreted in similar ways. But it does not bode well for the future of Massachusetts state constitutional interpretation if the meaning of the federal constitution becomes by default the meaning of the Massachusetts Constitution, simply because the Commonwealth’s appellate courts are unable to do more. That is a loss not just for litigants pressing novel state constitutional arguments in our courts; it is a loss for any citizen who might claim the protection of the Massachusetts Constitution in the future – which is to say, a loss for all of us.
Lawrence Friedman
One of the early casualties of the budget process was trial court law clerks. These recently graduated law students assisted the judges in the various trial departments – the Superior Court, the Land Court, the Family & Probate Court, and the Juvenile Court – with research and writing opinions and decisions.
The loss of these positions may strike some critics as inconsequential. Why, they might ask, can’t the judges do their own research and writing?
Many judges would probably like to do more research and writing, but the fact is, they are busy judging. They are hearing cases, meeting with attorneys, and attending to the many administrative matters that keep the Massachusetts court system running. They do not have much time left for the kind of in-depth research that, say, a complicated motion for summary judgment requires.
What this means is that trial court litigants may not fully appreciate why they lost their motion or case, and it could mean they are unsure of the grounds on which they might appeal. Further, as one appellate judge told me, in the long term, fewer narrative decisions and opinions mean more work for the appellate courts in reconstructing the basis for the trial court’s determination.
A tangential result of the increased time that state appellate courts must devote simply to understanding the lower court’s ruling is less time, in constitutional cases, to devote to the hard work of interpreting the state constitution. Massachusetts state constitutional claims arise in many criminal and individual rights cases, and the Commonwealth’s appellate courts have a long and storied history of taking seriously the task of figuring out just what it is that the state constitution means in a particular instance, often concluding that it provides more protection than its federal counterpart.
Budget cutbacks necessarily undermine serious efforts at state constitutional interpretation. As I explain in an article forthcoming in the Penn State University Law Review, a lack of time and law clerk resources inhibit the ability of state courts to fully develop their own constitutional law, which results in recourse by these courts to the principles announced by the U.S. Supreme Court, interpreting the federal constitution.
Now, there may be reasons why similarly-worded constitutional state and federal protections should be interpreted in similar ways. But it does not bode well for the future of Massachusetts state constitutional interpretation if the meaning of the federal constitution becomes by default the meaning of the Massachusetts Constitution, simply because the Commonwealth’s appellate courts are unable to do more. That is a loss not just for litigants pressing novel state constitutional arguments in our courts; it is a loss for any citizen who might claim the protection of the Massachusetts Constitution in the future – which is to say, a loss for all of us.
Lawrence Friedman
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