The Slow Death of Justice in California

By Joanne Doroshow, Center for Justice and Democracy at New York Law School

Here's a little known bit of American history trivia: The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. Not only that, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.

Unfortunately today, the civil jury is an embattled and vulnerable institution in the United States. Beginning in the 1980s and ever since, we have seen a non-stop barrage of legislative and, in some cases, judicial attempts to significantly weaken the civil justice system with laws that corporate America calls "tort reform." And now, the question as to whether this constitutionally protected institution deserves to function at all has been reduced to budgetary and fiscal squabbling.

North Dakota in 1989, and Vermont in 1990, each reacted to state budget squeezes by suspending civil jury trials (although North Dakota's 18 month moratorium was later declared unconstitutional by the North Dakota Supreme Court). Between November 1991 and February 1992, civil jury trials in New York came to a halt when budget cuts left the state judiciary without staff to handle them. And today, there's California.

You may have heard about California Governor Jerry Brown's new-found budget surplus. So excited was he about the state's budget situation that in his State of the State address, he spoke starry-eyed about ideas that suddenly seemed possible, like a new high-speed rail. He quoted from The Little Engine That Could: "I think I can, I think I can. And over the mountain the little engine went. We're going to get over that mountain."

Gee, hope so. But in the meantime, he is neglecting critical institutions that have been decimated over the past five years and that need their funding restored. Yes, educational institutions are part of that. But what many people do not know is that to achieve this surplus, the Governor has decimated the state's civil justice system. He needs to stop this inexplicably anti-democratic attitude towards people's constitutional rights and put some of that money back.

Let's break it down. Courthouse after courthouse is closing in California. In Los Angeles County, all courtrooms in 10 regional courthouses are closing. As explained by Judge Michael L. Stern of the Los Angeles Superior Court, "Although there will be some closures and adjustments to criminal courts, constitutional and public safety imperatives dictate that criminal prosecutions will not be much impacted by the reorganization." In other words, the civil justice system principally will take the hit. Expenses will go up dramatically for litigants, who will have to travel far distances to courtrooms and pay for their own court reporters, obviously hitting hardest the economically disadvantaged.

According to Brian Kabateck, President of the Consumer Attorneys of California, the courts are in crisis after five years of budget cuts in the range of $1.1 billion, and the Governor's 2013-14 budget slashes another $200 million in court construction money:

Whole courthouses are being shut down to make ends meet, lines are growing for even the most basic services like paying a traffic ticket, trial dates are being delayed amid shrinking resources. The fallout hits big and small - from large businesses that need timely resolution of legal issues to keep commerce churning to individual consumers seeking a level playing field in disputes. Particularly hard hit are some of the state's most vulnerable citizens - women and children caught in violent domestic disputes, elderly people abused in nursing homes, the poor or disabled have trouble getting to court because of the closure of local branches.

Kabateck noted,

The present day is grim, and the future is even grimmer. The public has had to absorb big fee increase, longer lines, longer waits to access justice. If things don't change, it'll get far, far worse for our courts. This needs to stop. Our justice system is a cornerstone of this state. We need to step up, do the right thing and keep it from crumbling.

And as Judge Stern put it,

If there were ever a time to pay attention to the quality of justice that we have come to expect and deserve from our judicial system, it is now. The public should not be content with the dislocation and delays in resolving civil disputes caused by court funding shortages. Equal access to justice under the law demands more. It requires action by everyone to make the elected officials responsible for funding our courts aware that the words "equal justice under the law" cannot become just another hollow slogan.

The societal harm caused by judicial budget slashing to crisis levels obviously stretches far beyond the damage caused to parties in individual cases. It undermines our democratic system. No governor or legislature -- let alone one with Democratic supermajorities in both houses like in California -- should stand for it, let alone instruct it. We can't remain silent over such an abrogation of constitutional rights.

Now's the time to speak up. Some day, a bullet train might be good for California, my former home. But justice must come first.