Funding Crisis

It looks like the state budget will not cover fundamental legal needs identified by the leadership of the Judicial Branch.  During session I have refrained from using the blog for commentary on bills, except to explain the many bills that would raise criminal court costs. At this point - apparently too late - I am obliged to at least point out the irony of what has happened. 

Basic Civil Legal Services, the fund supporting the bare-bones infrastructure for fundamental legal services, ended up $20 million short. The Indigent Defense Fund, supporting county efforts to provide constitutionally required defense in criminal cases, ended up $8.6 million short.  Both programs already dramatically underserve their target populations due to budgetary decisions, including the continued large-scale redirection of revenue generated from the Judicial Branch.

The Legislative Budget Board reports that the Judicial Branch generated $185 million more in revenue (through criminal court costs and civil filing fees, much more the former), than the Legislature appropriated for the Judicial Branch, last biennium. We brought this information to the forefront in the appropriations process, and in an ideal world the response would have been to reallocate funds already generated to meet the critical needs identified by the leadership of the Judicial Branch. In the world we live in, holding our noses, we proposed several ways to raise the additional revenue those critical needs require, and it was only yesterday that we learned that the Legislature ultimately failed to adopt them - a $5 additional cost in criminal cases (added to $98 currently), and a $10 increase in civil filing fees (added to $5 or $10 current fees, depending on case type).

Caselaw suggests that civil fees cannot be redirected to support functions outside the courts, under the Open Courts doctrine.  The same result holds true in criminal cases under the Separation of Powers doctrine. For obvious reasons the court system and its individual actors cannot be expected to generate revenue to ensure their own existence.  But by the same token, the Legislature must address the mismatch between court revenue generated and, at a minimum, the critical needs identified by our leadership. Having watched the appropriations process closely on both sides during session, I am honestly impressed by the people who are making these difficult decisions.  But I am bitterly disappointed and worried about this particular decision.