Thursday, December 22, 2011

Courts Are Not Revenue Centers

As foreshadowed recently, the COSCA Policy Paper for 2011, "Courts Are Not Revenue Centers," is now available online.  My thanks to the Policy & Liaison Committee of COSCA, and the always helpful and skilled staff of the National Center for State Courts.

When I became director of OCA in April 2005, we were in the middle of legislative session, and it was all about money, what a surprise. My small agency's part in the drama, accounting for the first several meetings I attended, was about legislation to require large jurisdictions to follow a model collection improvement program that OCA had devised for voluntary adoption. The program was aimed at collecting the myriad costs that are imposed on conviction of a criminal offense. Of course, the purpose of the legislation was to maximize state revenue, and I only learned later about the conversations behind the scenes, where the expected additional revenue was being earmarked for various purposes, some more appropriate than others. This was my introduction to the world of court costs and fees in our state, a topic that has necessarily become much more familiar over time, leading up to my keen interest in developing this newest Policy Paper (formerly "White Paper") for COSCA.

The paper has six parts, including an introduction, definitions and a conclusion, so I am going to focus here on the meaty middle three parts. Two of them are devoted to case law from the states, and I confess that is one thing that appealed to me about this topic; both chiefs and administrators share in this issue. The first of these, Part Three of the paper, addresses the open courts problem of creating too high a barrier to filing a case by imposing filing fees in civil cases, citing cases from Texas, Louisiana, Oklahoma, Alabama, Florida, Arizona and Illinois. As stated by my favorite court, the theme of that section is "If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general welfare through charges assessed to those who would utilize our courts."

Part Four addresses the corollary problem, a separation of powers problem, of heaping costs and surcharges upon those convicted. Cases from Wyoming, Michigan, Virginia, Arkansas and Missouri are added to the mix. Most courts agree that costs imposed must bear a reasonable relationship to the expenses of prosecution, but courts vary widely in their application of this test.

In Part Five, we have refined and reasserted as principles a set of standards governing court costs and fees, ostensible standards that were adopted by COSCA thirty years ago. In your handout, the last page is a restatement of just those seven standards, couched as statements of policy, so you can take a look if you haven't had a chance to digest the paper. A couple are uncontroversial or so clearly based on constitutional law that they are incontestable. Others you may find more challenging, particularly as you get into the specific history and system in a given state. The committee clearly acknowledges the tension between principles and the realities we all face, but offers the policy statements as guideposts to direct reasoned conversation and the balance of competing interests.

The bottom line: Courts are not revenue centers. That is the title of this year's policy paper, and it goes to the heart of the aspiration that the Policy and Liaison Committee espouses. Because people are compelled to use the courts on occasion, there is a strong pull toward a user fee mentality, and we all feel it. But there are several problems that flow from viewing the courts as revenue centers. The three major ones are unfathomable complexity, unfair financial burdens on those unable to meet them, and inappropriate, even unconstitutional, fund allocation.

I first experienced the unfathomable complexity of the Texas regime back in 2005. That's when I learned that one of my lawyers, Ted Wood, understands the system and publishes guides for clerks, available on Texas Courts Online under the topic "For Trial Courts." Take a look at the documents under Filing Fees and Costs, to get an idea of one state's complexity.

But here in Texas I get the sense that the complexity is less of a concern to legislators than the growing impact on those who pay, and the growing sense that these are taxes by another name. Last session we tried to save indigent defense and legal services with new court costs and fees, and were rejected on that basis.

What I propose is to take this paper to our Judicial Council, and begin to formulate a new cost and fee system, built from the ground up. I want to focus on the clearly legitimate court funds that are fed by costs and fees, and work our way out in both directions from there. See what fees feed into those funds and simplify their structure and administration. And, see what court services are funded, and what else is funded with court revenue, to see if we can provoke a consensus on finding other money to take care of the executive branch programs that currently feed off the courts.

Last session I told the appropriations committee that the courts in Texas generate $450 million for the state, and the state spends $300 million on the courts. Next session I hope we can bring those numbers into a better alignment, but without tying the courts to revenue they generate. It is a difficult and dicey proposition, but as our paper advocates, state court leaders should each try to take on this problem in our respective states.

Tuesday, December 20, 2011

Terms of Court and Grand Juries - Correction

The bad news is, whoops. The good news is, I have been advised that a pre-existing statute in our large garden of laws of court should cover the concern raised in my previous post:
Govt Code Sec. 24.018. CERTAIN EFFECT OF DISTRICT REORGANIZATION. If the counties that compose a judicial district or the time or place for holding terms of a district court are changed by law:
(1) the process and writs issued from the district court and made returnable to a term of court fixed by the law at the time of the issuance are returnable to the next term of the court as fixed by the amended law and are as legal and valid as if they were made returnable to the term of the court as fixed by the amended law;
(2) the grand and petit jurors selected or drawn under the prior law in any county in the judicial district are lawfully selected or drawn for the next term of the district court of the county as fixed by the amended law; and
(3) the obligees in all appearance bonds and recognizances taken in and for the district court and the witnesses summoned to appear before the district court under the prior law are required to appear at the next term of the court as fixed by the amended law.

Friday, December 16, 2011

Terms of Court and Grand Juries

Judges of Texas, please take note, this is an issue that you may not be aware of and it is important!

HB 79, the Court Reorganization bill from the First Called Session, contains a provision (Sec. 3.03 of the bill) establishing two terms of court each year in every district court in the state. The first term of court begins on the first Monday in January. The second term of court begins on the first Monday in July. Each term of court continues until the day on which the succeeding term of court begins.

The provision – codified as Government Code, Section 24.012 – becomes effective January 1, 2012. HB 79 does not address the transition from the system of terms of court under current law to the new terms of court.

Under current law, different district courts have different terms of court. The terms of court in a particular district court are established by the statute creating the court. For example, the 174th District Court of Harris County has four terms of court each year. See Texas Government Code, Section 24.267. Those terms begin on the first Mondays in February, May, August, and November.

Section 24.012 states that the new general rule will control over the current specific provisions. Accordingly, all district courts will have the same two terms of court each year. We believe that all terms of court established under existing law will come to an end on Sunday, January 1. The new system of two terms of court each year will begin the next day.

Terms of court are significant with respect to grand juries. Grand juries are impaneled to serve for a particular term of court. The new law raises a question about grand juries that are in the middle of a current term of court on January 1. The specific question is whether such a grand jury retains the power to act until the end of the originally-scheduled end of that term.

We believe the answer is no. We believe that when the term of court ends, the power of the grand jury ends. The only exception would be an extension of the grand jury’s term under Article 19.07 of the Code of Criminal Procedure. Such an extension, however, can only be made to allow for the conclusion of an investigation of matters presently before the grand jury. The grand jury is not authorized to consider new matters.