The Other Branch of
Government
Friday,
April 20, 2007
The law is something of a mystery to most people. In
fact, it's apparently a mystery to a good many North
Carolina state lawmakers. North Carolina's legislative
branch of government (the General Assembly), with the
apparent acquiescence of the executive branch (headed by the
Governor), has historically been a little tight in
allocating funds to the judicial branch. Consequently,
the judicial branch is heavily burdened and
lacks the resources to provide North Carolina citizens with
the level of service the citizens should be able to expect.
Every time the General Assembly or the Governor grandstands
on a law enforcement issue (i.e., uses public policy hot
buttons to pander for your vote) and
enacts a new law, the burden to enforce the new law falls not
just on the police but also on the courts. The police
have a hard enough time getting the funding they need to
properly enforce existing law; the courts inevitably end up
with what is called an "unfunded mandate."
But unfunded mandates are the least of the problems for the
judicial branch.
N.C. Is Starving Its Courts
Inadequate funding by legislature may create a
constitutional crisis
From Ashe Lockhart, a Charlotte lawyer
(published by the Charlotte Observer on
November 20, 2003)
Your recent report of
Chief Justice I. Beverly Lake Jr.'s address to the N.C.
Citizens for Business and Industry ought to send a chill
down the spine of the citizenry of North Carolina ("Chief
Justice Lake campaigns for bigger state court budget, " Oct.
31 [2003]).
He [Chief Justice Lake]
said the judicial branch of government is "$2.7 million
behind in bills to vendors and still has a $1.5 million
unpaid telephone bill," and is so late paying its mailbox
rent that the mailbox was sealed.
Imagine, the Supreme
Court of North Carolina unable to get its mail!
The court system exists
to provide citizens some measure of protection from the
tyranny of the majority and from the occasional poor
judgment of the General Assembly. Due process of law is the
citizens' bulwark against the otherwise unchecked and
potentially tyrannical police power of government. Thus, the
tension between order and liberty or tyranny and anarchy is
managed through the court system.
On an only slightly
more mundane level, the court system exists to provide
citizens with a mechanism through which they can seek
redress for the wrongs they suffer from the negligence and
carelessness of others. And of course the court system is an
integral part of our criminal justice and law enforcement
system.
The availability and
quality of justice are inversely proportional to the
incidence of citizens resorting to self-help remedies,
which, at the extreme, take the form of vigilante justice.
Citizens who have their lives and fortunes before the court
system almost universally grouse about the speed with which
their matters are handled and often complain about the
outcome. How much of the popular discontent with the law and
lawyers can be traced to the inefficiency of a grossly
under-funded judicial branch of government?
While the funding
crisis may not be a partisan issue, it is nevertheless a
political issue. That the judicial branch of our state
government is so completely subject to the political whim
and caprice of the legislative budget process is tantamount
to crisis even during the good times. In North Carolina
today, the fulcrum on which the balance of the three
branches of government teeters permits the balance to totter
too far in favor of the imperial legislature.
To quote Chief Justice
Lake, "as a separate and co-equal branch of government, our
court system simply cannot be accountable unless we have the
authority to manage our resources. Responsibility and
accountability go hand in hand."
We, and the General
Assembly most of all, need to recognize and respect that the
judicial branch is not a mere government department but one
of three branches of government, and its ability to provide
the proper balance to the process of governance is
significantly diminished by the current funding debacle.
Chief Justice Lake
quoted from a recent article in the N.C. State Bar Journal
written by John Medlin, former chairman of Wachovia, and
former Chief Justice Rhoda Billings. They wrote, "The courts
have lagged spectacularly far behind most of the rest of our
society in adopting technology for menial record-keeping
tasks, to manage information, and to inform decision
making.... The General Assembly has simply failed, virtually
since the establishment of our unified statewide court
system in 1970, to appropriate sufficient money to allow the
courts to keep up with the increasing demands.... Increasing
the total appropriations for the operation of the courts to
the level required to adequately meet their needs is,
indeed, a goal of constitutional magnitude."
Can there be any
question about this?
NOTE
(April 20, 2007): Shortly after the Charlotte
Observer published my commentary, the Board of Directors of
the Mecklenburg County Bar invited me to a board meeting to
participate in their discussion of whether the Bar should
take a position on the judicial branch funding issue and how
the Bar might be involved. The outcome of several
meetings on the subject was adoption of a written Resolution
of the Board of Directors and the appointment of two senior
lawyers to advise Bar on the publication of the resolution
and on any other role the Bar should take in working with
the public and North Carolina lawmakers to resolve the
judicial branch's long-standing funding problem. To
the best of my knowledge, the resolution was never
officially published by the Bar, even though it had been
approved by a vote of the board of directors.
(text
of the resolution)
"It is revolting to have no better
reason for a rule of law than that so it was laid down in
the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished long
since, and the rule simply persists from blind imitation of
the past."
– from “The Path of the Law,”
by Oliver Wendell Holmes, Jr.,
10 Harvard Law Review 457 (1897)
Copyright
© 2005 Ashe
Lockhart. All rights reserved.
