Alabama voters often in the dark on judicial races
By Eric Velasco, The Birmingham News
December 28, 2011, 11:00 PM
BIRMINGHAM, Alabama --- Jim Winkates considers himself a conscientious voter, but says he often doesn't feel good about his role in selecting judges locally and statewide.
"I have voted, I believe, in every election I've been eligible to vote in. I take it seriously," said the 68-year-old Hoover resident.
"But the judicial races are the ones I know the least about. Does this person have the background, experience and ability to do the job? I am in no position to make that judgment."
Voters can find themselves with little information about judicial candidates because those races often get the least media attention, the candidates generally have little to no public profile and the canons of judicial ethics limit what they can say while campaigning.
Even in states such as Alabama, where Supreme Court candidates spend millions of dollars on television advertising, voters get little tangible information about who is running, said Charles Hall, spokesman for the national judicial watchdog group, Justice at Stake.
"Voters are at a huge disadvantage when it comes to electing judges," he said. "By the time you get down to the local judges, it's like pulling names out of a hat. It really is an exercise in blindfolded democracy."
Hall cites the example of a Texas Supreme Court chief justice, who after 18 years in office found in polling that 86 percent of potential voters had no idea who he was.
"If you believe in an informed electorate, that is chilling," he said.
Voter dilemma
Contested high court elections are held in 21 states, and 32 states elect all or some trial court judges in contested races, according to the American Bar Association. In Alabama, appellate and trial court judges are chosen for six-year terms in partisan elections.
Absent any better information about judicial candidates, some voters just cast their ballots along party lines, said Winkates, who does not believe that party label is a valid measuring stick for judges.
"If I don't know much about the candidate, I don't vote that race," he said.
That's common, Hall said. Voting levels drop by as much as 25 percent in judicial races, versus those for legislative and executive branch posts, he said.
Justice at Stake advocates the use of nonpartisan voter guides in judicial selection, saying it is a crucial educational tool. Guides now are being produced, with varying success, in a few states, including Washington and North Carolina.
In Alabama, the state chapter of the League of Women Voters tries to fill part of the information void by conducting surveys of candidates for state appellate courts, said Kathryn Byrd, the LWVAL president. The league posts the responses, along with candidate biographical and campaign information, on its website.
The nonpartisan voter education organization plans to send out the questionnaires on Jan. 14, the day after qualifying ends for both political parties, and post its pre-primary guide as soon as possible after that, Byrd said. A guide also is being planned before the Nov. 6 general election.
"We want people to be able to compare what the candidates say, get a sense of what their priorities are and what issues are most urgent to them," Byrd said. "This is particularly critical in a state that elects judges."
The league also is updating its general court guide, which provides information about jurisdiction, duties, salaries and terms of office at each level of the state judicial system, Byrd said.
To expand its outreach, the state league is linking its Alabama voter education information to the national website, Vote411, which is run by the League of Women Voters Education Fund, Byrd said.
One limitation the Alabama league faces is the inability to print and distribute voter guides.
"Some of the people who need this information the most don't have access to the Internet," Byrd said. "I wish we had the funding to publish it. That is one of our great frustrations."
Expensive education
Providing comprehensive voter education guides statewide is too expensive for most private and public groups, Hall said.
A 2008 North Carolina guide mailed to every home in the state, which mostly was funded by a $3 check-off on state income tax forms, cost $1.4 million.
"It's all resource-driven," Hall said. "For volunteer groups, it not only is expensive, but it also takes a lot of work to put together a voter guide. Most states spend little or no money for getting even a basic guide out."
In some places, including the Birmingham division of Jefferson County, bar association surveys are offered as voter guides, Hall said. But critics question their validity and fairness.
Respondents in the Birmingham bar poll rate candidates as "highly qualified," "qualified," "not qualified" or "unknown."
Winkates said voters need solid information about judicial candidates to counter the influence special interest money often plays in who ultimately dons the black robe of a judge.
He suggested publishing a nonpartisan court-election guide as a good law school project, or an opportunity for a partnership among several private groups, including the media.
But voters need this information before the week leading up to the election, when many newspapers publish their guides, Winkates said.
By then voters are being bombarded with attack ads, which Hall calls "30-second muggings." Nearly half of the money for campaign ads is spent the week before an election, Hall said.
"It's purely about spiking people's emotions for a brief time until the vote is cast," he said. "Then people go about their business, unable to name any of their judges."
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Federal defendants in Mobile again can challenge competence of attorneys
By Brendan Kirby, Press-Register
December 27, 2011
MOBILE, Alabama -- In the wake of an opinion by the Alabama State Bar, federal prosecutors here have stopped requiring criminal defendants to give up their rights to bring legal challenges based on claims of shoddy legal representation.
But U.S. Attorney Kenyen Brown said he disagrees with the bar’s opinion and reserves the right to challenge it in the future, including possibly asking a judge for a binding legal ruling to settle the matter.
For now, though, the decision has restored a status quo that existed before summer 2010 when the U.S. Attorney’s Office changed language in its plea agreements. Traditionally, when defendants accept a plea bargain, they admit their guilt and waive most of their appeal rights in exchange for promises by prosecutors to recommend lenient sentences.
Defendants could appeal only on narrow grounds, such as when the judge imposed a sentence that was longer than the statutory limit or the range set forth in advisory guidelines.
In an effort to reduce "frivolous" appeals, prosecutors began requiring defendants to sign away their rights to challenge guilty pleas and sentences based on "ineffective assistance from counsel."
That drew loud complaints from defense lawyers, many of whom stopped signing their names to the plea agreements.
Federal Defender Carlos Williams said it created an ethical conflict of interest for attorneys because it put them in a position of advising clients to agree to forego a possible challenge based on the attorneys’ own shortcomings.
Many defendants continued to accept the deals anyway because it was the only way to get sentencing breaks.
"The client is between a rock and a hard place," Williams said. "Oftentimes, they don’t have a choice."
Williams asked for an opinion from the state bar’s Disciplinary Commission, which determined that such waivers violate the Rules of Professional Conduct.
"This is especially so in the context of a criminal case where the client’s freedom and liberty may be at stake," the opinion states. "As such, the lawyer may not counsel the client as to whether to waive his right to bringing an ineffective assistance of counsel claim."
Significantly, the bar determined that the ethical conflict applies to the prosecutor as well as the defense lawyer.
"Not only is it unethical for a defense attorney to sign such a waiver, it’s unethical for them (prosecutors) to ask," Williams said.
Brown, the U.S. attorney, said his office "out of an abundance of caution," has inserted the right to claim ineffective assistance of counsel back into its plea agreements and will not enforce the waiver on defendants who pleaded guilty under the previous provisions.
But Brown said he believes the bar misinterpreted the rules of ethical conduct, which he contended apply in this case to lawsuits against lawyers. Nothing in the plea agreements would prevent that, he said.
"It’s clear on its face that it is designed to prevent defense attorneys in a self-serving way from having their clients waive their right to sue for malpractice," said Steven Butler, who heads up the appellate division at the U.S. Attorney’s Office.
He said that an appeal or post-appeal legal attack of a conviction or sentence does not affect the lawyer, who therefore has nothing personally to gain or lose from a challenge.
Butler estimated that his staff spends about 25 percent of its time responding to post-appeal legal challenges brought by prisoners, usually acting without a lawyer. These mostly claim that defense lawyers failed in their basic obligations.
Because of the time it takes for such legal challenges to make their way through the courts, Butler said, the narrower plea agreement language had not reduced the workload.
"We didn’t cycle through it long enough to really see," he said. "I think we were probably on the verge of seeing the effect."
With or without the right to claim ineffective assistance of counsel, the number of people in prison does not appear likely to change significantly. The courts place a high burden on defendants to prove such a claim.
To win, a defendant has to demonstrate his attorney’s performance was far outside professional standards. Pointing to errors an attorney made or faulty legal strategy is not enough.
Even if he can show that, a defendant must also demonstrate that the deficiency likely changed the outcome of the case.
As the Atlanta-based 11th U.S. Circuit Court of Appeals noted in a 1995 case, the circumstances in which a defendant could win such a case are "few and far between."
Butler, in fact, said he has not seen a single successful post-appeal challenge in the 4 years he has been in his current position.
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Sandra Day O'Connor promotes civics education
By Howard Blume, The Los Angeles Times
December 27, 2011
Only about a third of American adults can name all three branches of government, and a third can't name any. Fewer than a third of eighth graders could identify the historical purpose of the Declaration of Independence.
This slim knowledge of civics — and the potential risk it poses to American democracy — captured the attention of retired U.S. Supreme Court Justice Sandra Day O'Connor.
During a recent trip to Los Angeles, she talked up iCivics, an expanding online program aimed at middle school students.
The free curriculum includes lesson plans and games that are linked to subjects and skills that various states require students to master. The program also promotes public service projects.
O'Connor launched the effort that became iCivics in 2006, the year she retired from the court. It initially focused on the judicial branch alone, but "it became apparent pretty quickly it was needed across the board," she said.
"It's very disturbing," said O'Connor, 81, the first woman to serve on the nation's highest court. "I want to educate several generations of young people so we won't have the lack of public knowledge we have today."
Nationwide, her work has influenced a new civics education law in Florida and pending legislation in Kentucky and Tennessee.
Civics education involves explaining the structure of U.S. government, including the meaning and influence of the Constitution and its evolution over time. Advocates also emphasize the importance of getting students to engage in the democratic process, said Kathleen Hall Jamieson, director of the Philadelphia-based Annenberg Public Policy Center.
Limited knowledge about the three branches of government — executive, legislative and judicial — emerges starkly in Annenberg surveys, which also found that 15% of adults correctly named John Roberts as United States chief justice, but almost twice as many (27%) could identify Randy Jackson as a judge on the television show "American Idol."
Poor understanding of civics has persisted for decades despite increased college attendance, Jamieson said.
"There is a base level of knowledge that is out there," enough to keep the country functioning, said Jamieson, "but it's a lot baser than some would like."
One problem may be a consequence of the federal No Child Left Behind Act, which emphasized reading and math instruction with required testing.
"Schools that were including basic social studies education started to reduce the time spent on that subject," said Deborah Genzer, former co-director of the California Campaign for the Civic Mission of Schools. "It's become a dire situation, really, especially at schools that are struggling to get their scores up in English language arts and math and have just cut out other subjects."
California students have suffered from that national trend, experts said, although they still are required to take three years of social studies in high school.
Civics education, which used to be commonplace, has been undermined by other forces, including erosion of broad support, according to a recent report prepared by Annenberg and the Civic Mission of Schools campaign, a coalition of 40 organizations. Skeptics on the left feared a narrow indoctrination into mores that deserved to be questioned. Critics on the right perceived a bias toward liberal activism.
The iCivics effort avoids ideological battles, but its games delve deeply into government process. In one, a player can take on the role of president, addressing Congress, choosing policy priorities, managing federal departments and selecting legislation to sign or veto.
Another game allows students to step into the role of advocate on famous Supreme Court cases, many of which resonate still, such as Brown vs. Board of Education in 1954, which outlawed segregation but failed to accomplish full integration.
Even students who lack Internet access at home have proved adept at picking up technology and games. Learning through online games tends to work because it uses "the students' language, challenging their critical thinking in the milieu of what they're used to," said Lynne Goldfarb, a USC assistant education professor.
Researchers from Mills College in Oakland found that 43% of youths reported playing games in which they help run a community, city or nation; 40% report learning about a social issue. Some games, including Urgent Evoke and InterroBang, present players with civic challenges in a fictional world, said Ellen Middaugh, research director for the Mills' Civic Engagement Research Group.
"The question then is how we can ... connect their engagement in the game world with engagement in the real world," Middaugh said.
O'Connor said her efforts were spurred in large measure by political attacks on judges, which she views as an offshoot of civic ignorance.
Assaults on the judicial system remain commonplace in political rhetoric, including statements by leading Republican presidential candidates.
Then there was the gaffe by Republican presidential candidate, Texas Gov. Rick Perry, who recently misstated the number of justices on the U.S. Supreme Court.
"It shows you our civics education isn't so good, doesn't it?" O'Connor said.
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Judge taps state bar president to mediate in 37-year-old Jefferson County Personnel Board suit
By Eric Velasco, The Birmingham News
December 22, 2011
BIRMINGHAM, Alabama -- In an effort to end a 37-year-old lawsuit over unfair hiring practices by Birmingham area governments through the Jefferson County Personnel Board, a federal judge has asked the Alabama State Bar to help mediate a settlement, court records show.
U.S. District Judge Lynwood Smith appointed Jim Pratt III, president of the bar association, to provide free mediation services. Mediation must begin by Jan. 11, Smith wrote in an order filed Wednesday afternoon.
The suit, filed in 1974, claimed race-based decision making in government hiring through the personnel board. Smith took over the case from a retiring judge in 2000, after the personnel board and its member governments failed to implement a consent decree in the case filed in 1981.
Smith has described the case as perhaps the ''oldest governmental, systematic discrimination litigation'' in the nation.
The member governments have spent millions of dollars over the last decade on changes to the merit-system department and its board, which were recommended by a court-appointed receiver who ran the personnel board from 2002-2005.
The personnel board was released from federal court supervision in 2008. Smith has set a Jan. 26 hearing on the city of Birmingham's request to terminate its consent decree in the case, court records show.
Also pending before Smith is a motion by one of the plaintiffs asking the judge to hold Jefferson County in contempt for its continuing failure to comply with the 20-year-old consent decree. That is the issue Smith wants the bar officials to mediate.
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Among Legal Ranks, Shrugs for Gingrich’s Tough Talk
By ADAM LIPTAK, The New York Times
December 19, 2011
WASHINGTON — The American legal establishment is not sure what to make of Newt Gingrich’s mounting attacks on the independence of the federal judiciary. Reactions vary from amusement to alarm. What is hard to find is approval.
Michael B. Mukasey, who was attorney general under President George W. Bush, said he grew slack-jawed in amazement as he listened to Mr. Gingrich’s argument that the elected branches should be free to ignore judicial decisions.
“It would lead us to become a banana republic, in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes,” Mr. Mukasey said. “That’s not what we are.”
Michael W. McConnell, a retired federal appeals court judge who was appointed by Mr. Bush and now teaches law at Stanford, said he was less concerned, but only because Mr. Gingrich’s proposals are so far-fetched.
“If these things were actually done, it would be scary,” he said. “Loose talk is not scary.”
In interviews and a white paper posted on his Web site, Mr. Gingrich, the former House speaker, called for the abolition of courts that issued decisions he found questionable and for subpoenaing judges to explain unpopular rulings.
“I think part of the advantage I have is I’m not a lawyer,” Mr. Gingrich said Sunday on “Face the Nation” on CBS. “And so as a historian I look at the context of the judiciary and the Constitution in terms of American history.”
Laurence H. Tribe, a law professor at Harvard, said a lack of legal training was helpful only up to a point.
“The advantage of not being a lawyer is the ability to look outside the box,” Professor Tribe said. “The disadvantage is to be so woefully ignorant of what’s inside the box.”
“There are times, especially times of national panic,” Professor Tribe said, “when both of the elected branches are prepared to defy core constitutional protections of human rights and only a truly independent branch, one that has no need to worry about the election returns, can be counted on to hold the line and preserve our basic constitutional commitments.”
Social conservatives have expressed concern for years that courts have gone too far in removing religious faith and moral values from public policy. With just weeks to go before the start of the presidential nominating contests, Mr. Gingrich’s position may resonate particularly in Iowa, where voters last year removed three state Supreme Court judges who had joined a decision establishing same-sex marriage there.
That sort of electoral action against federal judges is not possible, as they are appointed rather than elected and enjoy life tenure “during good behavior.” Many of Mr. Gingrich’s proposals would replace the judicial independence generally thought to be a defining feature of the federal system with aspects of the political accountability associated with state judicial elections.
Barry Friedman, a law professor at New York University, said this was a solution in search of a problem. “It’s not like there’s a rule against impeaching a federal judge,” he said.
Mr. Gingrich also took issue with another widely accepted view — that the judicial branch has the last word about the meaning of the Constitution.
“Judicial supremacy is factually wrong, it is morally wrong, and it is an affront to the American system of self-government,” Mr. Gingrich told the Values Voter Summit on Oct. 8.
The starting point for most discussions of judicial supremacy is Marbury v. Madison, the 1803 decision in which Chief Justice John Marshall wrote that “it is emphatically the province and duty of the judicial department to say what the law is.”
But Mr. Gingrich contends that the true genesis of the Supreme Court’s assertion of judicial supremacy was in its 1958 decision in Cooper v. Aaron.
The case is in one sense an odd one to quarrel with, as it helped make concrete the promise of Brown v. Board of Education, the landmark 1954 decision requiring the integration of public schools. The Cooper decision ordered officials in Little Rock to stop delaying implementation of Brown. The decision was not only unanimous but was also, in an unusual move, signed individually by every justice.
Still, Mr. Gingrich is not alone in thinking that Cooper went beyond Marbury.
“This decision,” the Cooper court said of Marbury, “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country as a permanent and indispensible feature of our constitutional system.”
That was an overstatement in at least two ways, Justice Stephen G. Breyer wrote last year in “Making Our Democracy Work.” The Marbury decision “did not explicitly say” what Cooper had it saying, Justice Breyer wrote, and judicial supremacy did not, in any event, enjoy universal respect after Marbury.
Larry Kramer, the dean of Stanford Law School, called Cooper’s characterization of Marbury “bluster and puff” in his 2004 book, “The People Themselves.” “The justices in Cooper,” he wrote, “were not reporting a fact so much as trying to manufacture one.”
Nonetheless, Justice Breyer wrote, “the Little Rock story represents a hard-earned victory for the rule of law.”
Mr. Gingrich has also been critical of the Supreme Court’s 2008 decision in Boumediene v. Bush, which allowed prisoners held at Guantánamo Bay, Cuba, to challenge their detentions in court.
“The Supreme Court in Boumediene literally inserted the American civil liberties on to the battlefield,” Mr. Gingrich said on “Face the Nation.” He has said he would ignore the ruling if he were elected president.
Mr. Mukasey, the former attorney general, agreed that the Boumediene case was “incorrectly decided.”
Asked if Mr. Gingrich’s proposed response was problematic, he said, “Not any more than you get rid of termites by burning your house down.”
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On the move
Birmingham News
December 9, 2011
APPOINTMENTS
H. Thomas "Trey" Wells III, an associate with Starnes Davis Florie LLP, has been selected to participate in the 2012 Class of the Alabama State Bar's Leadership Forum. Wells' practice is devoted to civil litigation with a primary focus on complex commercial litigation, energy and natural resources, environmental law, constitutional law, professional liability and workers' compensation.
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Rural communities struggle with lack of lawyers
By KRISTI EATON, Associated Press
December 11, 2011
MARTIN, S.D.— Quentin Riggins' family told him he was crawling in diapers when he first met their attorney, Fred Cozad. As long as Riggins can remember, the attorney's name was scrawled on a chalkboard his grandmother kept next to the phone with the names and numbers of her closest friends and family.
Today, Cozad is the only lawyer left in Martin, a community of about 1,000 people 150 miles southeast of Rapid City, and when the 85-year-old eventually closes his firm, there will be none.
It's a problem seen more and more in rural communities -- one that means people must travel farther for legal advice, slowing down the process and bogging down an already-crowded court system. Cash-strapped communities are spending more money to bring in lawyers from nearby towns for board and commission meetings, while businesses and estates that used to turn to one person for legal guidance are now forced to use firms with multiple specialists -- making the process much less personal.
In South Dakota, 65 percent of the state's 1,861 attorneys are in four cities: Sioux Falls, Rapid City, Aberdeen and Pierre.
A lawyer himself now, Riggins, 32, said he enjoys working with rural clients but he would rather travel to see them than base his office in a rural area. Also, Rapid City, with a population of about 68,000, is as small a community as his wife will agree to live in, he said.
Riggins' decision is not unusual. Census data shows that America's population is shifting from rural to urban. In 1910, 72 percent of Americans lived in rural areas. A century later, it was at an all-time low of 16 percent.
Living in a city especially appeals to law school grads and other young professionals, said Susan Poser, dean at the University of Nebraska College of Law.
"I think a lot of it has to do with the lifestyle," she said. "People at that age tend to want to be in a city. We're talking about 25-year-olds for the most part."
The drive -- which Riggins doesn't mind -- can be taxing in rural areas. Emily Sovell is the state's attorney for Sully County as well as the city attorney for several towns in central South Dakota. Based in Onida, Sully County's seat, she sometimes drives as many as four hours roundtrip to attend a city council meeting after a normal eight-hour work day.
Money also plays a role. While the cost of living in small towns is often less than in cities, so, too, is the salary. For example, a lawyer in rural southeastern Oklahoma earns an average of $72,000 annually, while a San Francisco lawyer earns $172,000 on average, according to the Bureau of Labor Statistics. With many young lawyers graduating with $100,000 or more in student loans, the bigger paycheck can be the deciding factor in taking a job.
The South Dakota State Bar Association is hoping to change that by creating a rural practice task force to help bring more lawyers to small towns. A similar effort is underway in Iowa.
"The numbers speak volumes about who we have -- or don't have -- in the rural communities," said Patrick Goetzinger, president of the South Dakota State Bar Association. "We're going to have some problems in delivering justice in these rural communities if we don't do anything proactively."
One idea is to create a loan forgiveness program for lawyers who commit to serving a small community for a certain period of time, similar to programs for health care professionals in rural areas. Another goal is to improve job placement for lawyers' spouses, who sometimes have a difficult time finding work in rural areas, said Phil Garland, co-chair of the Iowa State Bar Association's rural practice committee.
The programs aim to improve access to legal services and help preserve community life. People can say what they want about lawyers, Garland said, but there's no one more involved in a small town than an attorney performing pro-bono work or sitting on a local board.
Poser said UNL identified a shortage of rural lawyers as a problem that needed to be addressed shortly after she became dean in May 2010. The university is developing coursework on solo and small practice law in response. A similar course is being considered at the University of North Dakota School of Law in Grand Forks.
Rural firms also need to offer opportunities for students to test the waters through summer associate programs, Poser said. And everyone agreed mentoring will also play a key role in bringing more young lawyers to less-populated parts of the country.
"You need someone to help you. If there are attorneys in these small towns, they need to actively reach out," said Jennifer Knapp, 32. She left her job in Minneapolis a few years ago to take over Libera Knapp Law Office in Winona, Minn., which has about 27,500 residents.
Her old job offered a great salary, regular hours and friendly co-workers, Knapp said, but she disliked having little direct contact with clients. Browsing Craigslist one day, she stumbled upon a post listing a 100-year-old, third-generation law firm for sale.
"I could not get it out of my head, so I responded," Knapp said.
She met with the outgoing lawyer who said he would stay on for a year to ease the transition. But there was one thing that kept worrying Knapp about moving to Winona: finding a life partner in a small town.
"It was a huge concern for me. It was probably the biggest thing holding me back," she said.
Despite her personal misgiving, she purchased the firm and took it over in 2009. She has hired two attorneys -- close friends from college and law school -- to help with the workload, and she recently married a man she met in Winona.
Knapp wanted to try something new -- and it has worked out well for her -- but she said no amount of mentoring or appealing to unemployed graduates will make someone happy in a small town if they don't already have that dream.
Collin Davison, 24, does. He grew up in Garner, Iowa, which has about 3,100 people, and always planned to go back there after getting his bachelor's and law degrees at Drake University.
"I wanted to be my own boss," he said. "I knew I didn't want to work for a large firm. Consequently, if I was going to start an office, I wanted to do it back home."
It hasn't been easy. Davison has student loans to pay off, and he took out another one with a local bank to open his office a few months ago. He started with no clients and had to create a marketing plan to attract some. He knows it's a big leap to open a solo practice in rural Iowa right out of school -- many of his friends remind him of how crazy he seems -- but Davison said the quality of life makes it worthwhile.
"At the end of the day, that's why I came home," he said. "I don't think there is a better place to live and raise a family."
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Budget troubles cut delivery of justice – [Editorial]
USA Today
December 6, 2011
Try cutting state education funds in these tough economic times, and you face anger from parents, teachers and unions. Slice DMV funds? The calls pour in from everyone who has ever stood in line to get a driver's license.
So state legislators desperate to balance recession-starved budgets are picking on an easier target: the courts, where they'll hardly hear a peep of protest. To much of the public, the court system seems theoretical and faraway. If people consider the problem at all, they think courts exist to try criminals or to fight an occasional traffic ticket. That doesn't provide much of a constituency.
The trouble is, as invisible as courts might seem to the public, they are the nation's third branch of government — not just another agency — and they profoundly touch many people's lives.
They offer recourse to the aggrieved and restrain tyranny by political majorities, whether local or national. They protect constitutional guarantees such as due process and freedom of speech and religion. As the focal point of the criminal justice system, courts keep the nation's streets safe. And every day, courts grant divorces, protect neglected children, collect child support and resolve all manner of disputes. And that's just a short list.
But in recent years, budget cuts have been so drastic that the courts' ability to deliver justice in a fair and timely manner is threatened.
Since 2008, courts have faced cuts "more severe" than other government entities, according to a new report from an American Bar Association task force that studied the issue nationally. Georgia's court funding shrank 25% in two years. Florida judges were forced to plead for a loan from the governor when funding from fees dropped, causing a huge deficit. In California, years of cuts have gone so deep that the San Francisco court has cut 30% of its staff since 2008 and shut six civil courtrooms this fall. "If justice delayed is justice denied," wrote San Francisco Judge Curtis Karnow, "we are in for very rough times."
Because most of the courts' costs go for personnel, judges have limited ways to absorb cuts. They can either cut workers or cut hours. Either way, the public loses. Twenty-six states have stopped filling judicial vacancies. Fourteen have reduced hours or closed courts for entire days. Most New Hampshire courts hold only eight months' worth of jury trials instead of the usual 12. If you're waiting for justice, bring a pillow and blanket. It's going to take a while.
Often, the perceived savings are minimal because courts typically consume less than 2% of state budgets, and delays drive up costs elsewhere. Keeping accused criminals in jail, for instance, is an expensive proposition. Individuals and businesses that can't get lawsuits resolved cannot invest their tied-up assets.
There's also this: Judges often anger lawmakers and governors by overturning regulations or laws these politicians have championed. That is the court system's job. But it certainly doesn't make them popular at budget time.
Judges, who above all else must be independent, are not in a good position to be lobbyists. Nor should they be. So better systems for ensuring adequate funds for courts need to be found. Some states, such as Utah, have helped by giving courts more flexibility to manage their budgets. And courts need to seek efficiencies, particularly through technology. Several have. Iowa adopted the simple reform of online payment of speeding tickets. New Hampshire has gone further, consolidating its courts and adopting smart business techniques for its clerks' offices.
The only answer that doesn't work is pretending that courts are just another agency and that drastic cuts won't wound the public and the nation's core values.
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Tort reform: Keep proper balance – [Editorial]
Jackson Clarion-Ledger (Miss.)
December 6, 2011
To business, health care and insurance interests tort reform means protection from frivolous lawsuits and a stacked justice system in which it is impossible to assess risks for doing business.
To an individual injured by negligence by a business, a doctor or a trial lawyer facing off against unlimited resources of a giant insurance company, tort reform means a high wall to climb to find justice in a stacked legal system.
Those are the lines drawn in the ongoing tort reform wars in Mississippi, requiring a careful balancing of interests to provide fairness in the judicial system.
The approval of significant tort reform legislation in 2002 and again in 2004 ended, or at least, brought a truce in the contentious tort reform wars between those competing business and health care interests and trial lawyers.
It was reform that needed to take place. Because of lax laws that could be easily exploited, Mississippi had gained the reputation for "jackpot justice" and had been declared a "judicial hellhole" for exorbitant awards in some courts.
While tort reform often is couched in political terms - business Republican interests and Democratic trial lawyer interests - the reform effort first came under Democratic Gov. Ronnie Musgrove. With doctors subject to skyrocketing malpractice insurance and claims, the Legislature approved reforms to address medical malpractice, limiting non-economic damages. Republican Gov. Haley Babour in 2004 came with a more comprehensive approach that expanded reforms to business interests, providing caps on damages.
This responsible legislation brought stability and certainty to a system that was out of balance. Medical malpractice claims have dropped dramatically and insurance rates have followed.
Now with Republicans taking majorities in the Legislature, there is renewed talk of more tort reform to perhaps lower caps and put in a system in which the loser of a lawsuit pays costs. These are not so much tort reforms to make a level playing field in the courts but to play to the politics of the issue.
This newspaper supported tort reform because the system was out of balance. However, to swing to the other side would be just as bad, running the risk of creating "jackpot justice" for the powerful and preventing the powerless from having fair access to the courts.
The tort reform wars have played out in judicial elections, harmfully so, bringing big-money influence into judicial elections. We do not need to go there again.
The new Republican leadership has too many new problems to face to drag up an old one. The peace in the tort reform wars may be an uneasy one, but it is one that should stay in place, especially when there is no evidence for any needed changes.
Neither side in the tort reform wars will agree there is balance in the system, which indicates there is. It should be left alone.
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Yes, they're real lawyers: Booth at Boynton mall peddles foreclosure advice
By Kimberly Miller, Palm Beach Post
Dec. 2, 2011
Just south of the food court and past the $15 "designer style" jewelry stand is an unusual mall kiosk staffed not with vendors hawking holiday ware but attorneys offering legal advice.
The Law Booth at the Boynton Beach Mall was opened Nov. 1 by three Palm Beach County attorneys who said they saw a need for legal counseling outside normal business hours and the traditional office setting.
Founded by Melva Rozier, Richard Carey and Paul Burkhart, the stand, which sits outside American Eagle Outfitters, is typically open from about 10 a.m. to 8 p.m. with "Walmart"-priced advice on legal matters including foreclosure, bankruptcy, estate planning and family law.
They were even open at 4 a.m. on Nov. 25 for Black Friday shoppers.
"People just kind of walk by and ask if we're real attorneys," said Rozier, who was meeting Thursday morning with a woman who ducked into the booth after shopping at Victoria's Secret. "I've watched people make so many mistakes because they think they can't afford an attorney."
Through the end of the year, The Law Booth is offering free 15-minute consultations. Normal pricing includes $25 for a general consultation, $50 for a half hour, and about $100 for a specific consultation.
Another holiday discount running until Jan. 1 is $300 for work on estate planning, trusts and wills. Burkhart said that kind of work can normally cost about $750.
"We wanted to take away some of the fear people have that if they pick up the phone to speak with an attorney that it will automatically cost them $500," he added.
It was also good timing with the economic slump, the attorneys said, which has left more people trying to puzzle out real estate issues such as foreclosures, short sales, loan modifications and deeds in lieu of foreclosure. Attorneys at the booth will also review rental leases.
The Boynton Beach Mall was chosen for the debut of The Law Booth because it's between the Delray Beach, Belle Glade and West Palm Beach offices of the Legal Aid Society of Palm Beach County.
Carey said the group hopes to open more Law Booth's, possibly in the Mall at Wellington Green and one in Pompano Beach.
"This isn't a temporary thing," said Carey, who took the 4 a.m. shift on Black Friday. "We're really trying to help people who can't do what they need to do during the regular working day."
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