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Bankrupting justice
The Clean Elections controversy and the tightening budget crunch could spark a constitutional crisis between the state legislature and the court system

The administration of justice in Massachusetts stands on the brink of disaster. Its primary failings are delay and waste. The Commonwealth has neglected for decades the need for structural reorganization of its courts, for modern tools of efficient management, for sufficient judges and adequate facilities, and for the use of modern techniques in scheduling the flow of cases.... Individual Massachusetts judges and some teams of judges, especially the chief justices, have struggled to avert a crisis, but the causes of delay and inefficiency are built into the present statutes and methods of financing Massachusetts courts. Now the Commonwealth faces a stark but simple choice: either reorganize the judicial system or allow a breakdown of justice.

Those dire words were written in December 1976 by a blue-ribbon commission — headed by former solicitor general and Watergate special prosecutor Archibald Cox. Even though the commission convened by Governor Michael Dukakis resulted in major reform of the structure of the state’s courts, scores of legal experts and insiders say Massachusetts faces a crisis of the judiciary today just as serious as the one it faced 26 years ago.

The state’s courts will suffer a $25 million funding shortfall this year — a deficit that is expected only to grow next year, thanks to consistently decreasing state-revenue estimates. The court system’s 7900 employees — including judges, unlike officials such as legislators and statewide office holders whose salaries are set by statute — are being asked to voluntarily surrender eight days of pay each year. (This comes on top of neglecting a $19,000 pay raise legislatively approved for judges.) The courts also have lost the power to select their probation officers, who are seen as a vital cog in the justice system.

Making matters worse, the legislature has gradually shifted administrative control of the caseload away from judges to local clerks, over whom judges have little influence. And as far as state funding for individual courthouses and personnel goes, judges serve, in effect, at the whim of members of the House and Senate — a point emphasized by James Dolan, a former judge and author of a new Pioneer Institute study on the state’s courts.

All this bears considerable resemblance to the dark days of the 1970s, when the state of the Massachusetts judiciary gave rise to the Cox Commission. Then, as now, the justice system in Massachusetts was more akin to what most Northern professionals would associate with the deep South than with the home state of Harvard Law School and Supreme Court justices Oliver Wendell Holmes Jr. and Louis Brandeis. Yet it is here in affluent and well-educated Massachusetts, home to such state-of-the-art industries as financial management, biotech, and genetic engineering, that the spirit of Boss Hogg lives on.

The Cox Commission, which included such legal heavyweights as then–attorney general Frank Bellotti, then-president of the Massachusetts Bar Association Paul Sugarman, and Hyams Trust executive director Joan Diver, put at the center of its 1976 reform proposal a plan to allow the judiciary to make important financing decisions on its own. At that time, county officials funded the courts, and there was no master budget for the state court system. In response, the commission recommended that "a single budget for all personnel and activities of the judicial system should be prepared annually and submitted by the Chief Justice to the Legislature." It decried a "chaotic" budgetary process in which "there are 417 budgets, each prepared by separate officers or employees with scant regard to any other budget."

The state legislature — moved, in part, by public reaction to the Cox Commission report — appeared to take action in 1978. For example, it created an administrative judge to manage the courts and attempted to unify the various courts within the state system. But, at the same time, the legislature retained the right to provide funding: the legislature, not the courts, would decide not only how much money to appropriate to the court system, but how much each individual court should receive through a system of line-item allocations. In other words, while paying lip service to an independent judiciary and creating a system that in some ways was an improvement over its predecessor, the legislature also did the one thing that would preserve its members’ leverage over the judicial branch. They draped the old system in new clothing, but, according to numerous critics, including Dolan, they retained the one feature necessary to keep the patronage system alive — the power to fund or withhold funding from specific courts. This meant that when a dispute arose between the courts and the legislature as a whole — or even a powerful individual legislator — Beacon Hill would always have the upper hand.

Today, as House Speaker Tom Finneran battles with the Supreme Judicial Court over Clean Elections — going so far as to suggest that Massachusetts switch to a system of electing judges — many legal experts, judges, and other observers argue that the full intent of the Cox Commission’s report now be implemented. They maintain that unless the Massachusetts judicial branch is given full independence, as mandated in the state constitution, legislators will allow petty politics to grind justice in the Commonwealth to a halt. And from where the courts might go from there, nobody knows — perhaps to a constitutional crisis, in a form we can only imagine.

The current predicament has prompted Archibald Cox to recall the original intent of the commission he headed. "It was the commission’s assumption that judges would act independently and not allow themselves to be pressured by anyone outside," says Cox, reached in Maine, where he has retired. "We expected the judges to act independently."

Adds Sugarman, who also calls for full implementation of the commission’s recommendations: "We ran a long race to end up back where we started. The legislature never really relinquished control of the budget of each individual district court and the line items are just another substitute for what we were trying to improve back in 1976. I think it would have been a good thing back then, and I think it would be a good thing to implement now."

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Issue Date: February 21 - 28, 2002
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