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Bar News - March 19, 2010

Opinion: Justice at Risk: Will the Profession Step Up?


John T. Broderick, Jr.
The following is Part I of an address given at the Feb. 22, 2010 convocation at Syracuse University College of Law. Part II of the Chief Justice’s address focuses on the four challenges facing the legal system in the 21st century and will be published in the next issue of Bar News. Should you wish to read the full text of his remarks now, visit the Judicial Branch website.

In my view and based upon my experience on a state supreme court these last 14 years, state court justice is eroding and fraying all across America and, with rare exception, state courts have never been more imperiled than they are today. Their slow decline should concern all of us. State courts are the workhorse of the American justice system day in and day out. They always have been. They’re closest to the people and to the problems and conflicts that beset them. More than half their work involves families. They are, in a sense, the people’s courts.

There are more cases filed in state courts on the island of Manhattan in a single week than are filed in all the federal courts in America in a single year. Each year state courts average more than 102 million court filings or more than 98 percent of all litigation filed in the United States. State courts nationwide have more than 30,000 judges and masters and more than 20,000 courthouses. Allowing the status quo of slow decline and benign neglect to go unnoticed, unchallenged and uncorrected will, in time, undermine one of the basic promises of our democracy—prompt and affordable access to justice for all who seek it. Allowing the courts to decline will also, in time, undermine the profession of law itself.

State courts are increasingly under-funded and undervalued. They have too few advocates and even fewer friends. Sadly, those who speak ill of the courts and of their decisions are never in short supply.

Last November the New York Times, in a lead editorial, declared that state courts in America were at the "tipping point," just as Chief Justice Margaret Marshall of Massachusetts had said in a New York speech. It acknowledged that state courts were "at the center of the nation’s legal system and enforcement of the rule of law." It also acknowledged, with regret, that state courts, an independent and co-equal branch of government, have been "spiraling into crisis as cash-starved states struggle with huge deficits." As the Times pointed out, budget cuts are "impeding core court functions, forcing court closures, shortened court hours and a tangible narrowing of access to justice." In Vermont and California state courts are closed to the public a day a month because of unpaid staff furloughs. My state will soon follow. All our judges and masters will be asked to take unpaid furlough days, too. I don’t ever remember that happening in my lifetime and the larger message of closing the courts is troubling. As it is, during the past year we suspended jury trials in eight of our ten counties for one month to avoid staff layoffs. That’s equally disturbing.

I do not suggest that state courts are special and should be spared the pain experienced by state government in these unusual economic times. Indeed, all public institutions need to share the discomfort. But state courts are different. They are not state agencies but were created by constitution or statute to safeguard fundamental rights. Unlike many agencies that have programs they can cut, we don’t. We are the program.

As the Times so aptly put it, "at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself." As someone charged under the New Hampshire Constitution with administrative oversight of the courts of my state and who is familiar with the plight faced by many of my fellow chief justices across this country, I can report that the cracks are showing and widening with each passing day.

The near silence of the profession on these issues needs to be broken and its respected and influential voice heard, locally as well as nationally. Sooner as opposed to later. If we cannot safeguard the sound operation of state courts at the beginning of the 21st century, if we cannot be satisfied that our court system is truly open, affordable and accessible and that it can provide timely justice, what else is more important to a well-functioning democracy? If America’s state courts are slowly failing, what else do we need to know before speaking up and speaking out? What else could be more important to the profession of law than protecting the Rule of Law? Yet silence in many legal quarters persists. Sadly, that silence may prove deadly.

Many of our most at-risk citizens turn to the state courts every day for protection from perceived or actual mistreatment and discrimination. They should feel confident that the courts can respond and respond in a timely way. It’s part of America’s social compact. State courts often are the only place the vulnerable can go for asylum against the occasional excess of a majority’s aggregated power. Our justice system is rightly the envy of the world but it will take vigilance and resources to sustain it. I am concerned that state courts are presently unable to be relied upon to direct society’s traffic and provide meaningful and prompt justice at a reasonable cost to all who seek it. That should concern all of us, especially you, because you will inherit the challenges that are currently buffeting the state courts. Your wisdom and commitment, your conviction and courage will likely determine outcomes. Time is not our friend.

Chief Justice Broderick’s remarks conclude with the following admonition:

Our system of justice is passed on to each succeeding generation for safekeeping. It will soon enough be passed to your generation. I urge you to honor it, improve it and, most importantly, defend it. It’s only a birthright if you protect it. I have no doubt you are up to the task.

Thanks for inviting me to this great law school and thanks for listening.

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