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More Are Concerned About Our 'Broken' Courts Does Massachusetts have the worst courts in the nation? More concern has been expressed
abut our "broken" court system, which was
highly criticized last month in a report by a panel
appointed by Chief Justice Margaret Marshall and headed
by Boston College's chancellor, the Rev. J. Donald
Monan. "Even if there were someone in charge, that person wouldn't have the information on how to make informed decisions," Marple says. A member of the Judiciary Committee and Minority Leader of the Republican Party, Brian Lees (R-Springfield) agrees and tells MassNews "The system is broken and has to be fixed. I see it as a fairness issue, because one court may have a much bigger backlog of cases but receive less money, and that's blatantly unfair." A former judge tells MassNews he also sees problems. "Other states provide court funding by means of a single line item in the budget," according to Former Dorchester District Court First Justice James Dolan, who did a separate study for the Pioneer Institute a year ago. (In other words, the other states give a lump sum to the courts and let them decide how to allocate the money.) "The use of a line-item budget [by the Legislature] to create positions in specific courts is unique to Massachusetts," says Dolan. Judge Dolan's concern about the funding occurs because the legislature gives money to the courts in 160 separate items, specifying particular personnel decisions for patronage as requested by individual legislators. In effect, an assistant clerk may owe his job and his allegiance to his district's legislator, rather than to his superiors in the court system. Furthermore, because the legislature precisely specifies all personnel and other resources, the Court management is prevented, by law, from moving resources to places where they're most needed. The result is "high cost, slow action, and poor service to the community," according to the report. "The administration and management of the Judiciary is uneven at best, and oftentimes dysfunctional. Morale is near the breaking point, and there is little concern for customer service." Another Judge Agrees Framingham District Court First Justice Robert V. Greco tells MassNews that he agrees with most of the recommendations in the report, but disagrees with some of the charges. "I don't buy the impression given by the report that the courts aren't functioning, or that court personnel are not capable of doing their work in an efficient way," says Greco. "Sure there are problems, problems like getting civil cases tried, since there's no money for stenographers. But I think that in most courts the work is percolating along." That isn't necessarily a good thing, according to Professor Marple. "Percolation implies a slow diffusion, and that's a good description of what's going on," he says. "A lot of judges and clerks work well together and produce a good product. But when we look at the system as a whole, there's a need for major reform, and I think that Chief Justice Marshall recognized that when she called the commission into being. Our goal was to point out the places where improvement is needed." Still, Judge Greco agrees that the budget process has to be revised. "There's no question that some courthouses are better funded than others, based on the energy of the people in the courthouse to persuade their legislators to help them out, and some judges have more of an inclination to do that than others," he says. "There are some First Justices -- and I put myself into this group -- who have no particular appetite to go lobbying, and I ask myself, am I putting this court at a disadvantage? That really should be taken out of the equation." First Justice David Nagle of the Brockton District Court agrees. "Courts with powerful legislators are well stocked, while others aren't," says Nagle. "We have to lobby through our legislators, or we'll be left out of the picture." The new set of recommendations came just two weeks after Governor Romney unveiled his own set of court reform recommendations, some more far-reaching than those of the Visiting Committee. Romney's recommendations, which he says could save $100 million, include going immediately to single line-item budgeting, and closing down nine district courts, including the very expensive Boston Municipal Court. Normally, there would be little chance that the Legislature would be willing to give up power and agree to either set of recommendations, but Judge Dolan believes that the current budget crisis presents a particular opportunity. "The legislature has nothing to lose right now," says Dolan. "It's a time of fiscal crisis, and there's no money for jobs for the next two years. So they can't make any new appointments. In fact, people will be losing jobs, so legislators will have to cut jobs, which they don't like to do." So they can go immediately to single line item budgeting and they can "let the courts cut jobs for them." The report makes another major set of recommendations having to do with collecting data for evaluation of court system management. The Committee's recommendations range from writing a system-wide mission statement to the tracking of numerous benchmarks, such as the percentage of decisions reversed on appeal, the age of the pending cases, number of complaints and dollar cost per case. Rankings should be made public in departmental report cards. "The public deserves to know which courts are quickest, most courteous and most cost efficient," according to the report. Quality of Judicial Decisions Affected? The report doesn't address the issue that the quality of the judicial decisions may be affected by political influence by the legislators to whom the employees owe their jobs. That kind of evaluation wasn't part of the Visiting Committee's job, according to Professor Marple. "It wasn't our goal to decide [whether justice is being done fairly]," he says. "But the impression is that reasonable justice is being done, although often delayed and often too expensive." But one lawyer disagrees. "The claim that the quality of judicial decisions is high is a complete farce," says Barbara Johnson, an Andover lawyer who ran an independent campaign for Governor of Massachusetts in 2002. "Governor Romney isn't doing any of the things that he promised to fathers, and the committee report didn't even go into the probate and juvenile courts." That's a big failing of the Committee report, according to Senator Lees. "The probate courts have more systemic problems than funding," says Lees. "It's clear that many of the probate laws are broken. For example, right now it leans away from joint custody and fathers' rights, and you want to make the system fair for both parents. Both parents should have equal rights, and a lot of people feel that right now it's lopsided." In a further stinging rebuke to the competency of the Court management, the Visiting Committee's report stops short of recommending that the legislature fund the courts with a single line-item in the state budget, allowing the court total discretion to hire and allocate resources. Instead, it recommends a gradual reduction in the number of line items over a period of years. "The Judiciary must significantly improve its central administration talent and tools for allocating and managing resources," says the report, and later adds that in doing so "they will earn the right to have greater control over their own resources."
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