I trust you had a great summer. You should - you're on a roll! Last November, contrary to the expectations of many skeptics, California voters adopted, by a nearly 11-point margin, your Proposition 30 to increase tax rates, mostly on the wealthy. Passage of the proposition and the slowly recovering economy stabilized the perennial budget mess in Sacramento, which in turn has permitted you to devote more of your time and energy to initiatives that you have long championed: fairer distribution of public school funding, the bullet train, and the environmental remediation of the Sacramento-San Joaquin River Delta.
The media, in turn, have been appropriately supportive. In a highly complimentary article in the June Atlantic
, you were described as "the fixer," and the public, too, is favorably impressed.
You are, in fact, precisely the leader that I, and many others, were hoping for in a troubled time. But there is one issue, Governor, that has not received the attention that it deserves, and it could end up damaging your legacy. Bluntly put, the courts are in crisis because of the devastated judicial budget. A state that has rightfully prided itself for decades as having the best court system in the country is now dealing with a judiciary that is strained to the point of dysfunction.
Since 2008, the California judicial branch budget has lost about a half-billion dollars; its $3.1 billion budget for 2012-13 failed to stop court closures and layoffs. Over the same period, the General Fund support of the judiciary has been reduced by about 45 percent. By comparison, the executive branch has seen a 7.8 percent decrease in General Fund support, and the legislative branch has seen a 2 percent increase during that period.
Since 2010, 39 courthouses have closed, as have an additional 77 courtrooms in still-open courthouses; at least 30 courts have had to reduce hours at public service counters; and at least 15 have had to institute limited court service days (where the majority of courtrooms and clerk's offices are closed). Self-help and family law facilitators' programs have been gutted. Hearings on civil cases are being delayed and, all too often, when they do take place, they're conducted without court reporters. Meaningful access to the courthouse for pro se litigants has come to a virtual halt. In the not too distant future, the damage will become long-term and likely irreparable.
You, of course, are well aware of this. And no one doubts that, if you had your druthers, this would not be the way you would choose to operate the judicial system. You can also legitimately point out that since you took office you have had to put out massive budgetary fires and were forced to make some extremely difficult choices based, in part, on political realities. However, the fundamental point is that the third branch of government is in dire straits. And while you are not responsible for the underlying causes, it's happening on your watch and Californians have the right to ask, what are you going to do about it?
Here's why you should tackle this issue, and prioritize it in a way that, up to now, you have not had an opportunity to do. First, the Californians who are overwhelmingly and disproportionately affected by what is happening to the judicial branch are the same Californians for whom you, like your father before you, have fought for your entire public life: the middle class and at-risk individuals and communities. While corporations and the wealthy will find a way to adjudicate their disputes in alternative forums, it is the middle class that predominantly relies on and utilizes our court system to adjudicate business and real estate disputes, to finalize divorces and adoptions, and to resolve probate cases. The poor are particularly dependent on the court system to protect and access basic necessities such as housing, safety, child support, and medical care. (Seventy-three percent of the Californians who utilize court family law facilitators and self-help centers earn less than $36,000 annually.)
Second, compared to some of the other initiatives you are tackling, the cost of restoring the judicial budget to an acceptable level of functioning is, relatively speaking, small. The judicial branch budget is merely 2.1 percent of the overall state budget. No one is saying that restoring the branch to financial viability will be easy. But finding an additional and sustainable half-billion to one billion dollars is infinitely more manageable than funding some of the other initiatives you have taken on. One billion dollars represents 1 percent of the estimated total cost for the bullet train, 4 percent of the projected costs of remediating the Delta, and 9 percent of the annual budget for Corrections and Rehabilitation. Relatively speaking, this is not a heavy budgetary lift, especially considering what is at risk.
Third, the timing is right to get this done. The political landscape is favorable. Your party, after decades of effort, has finally secured a "supermajority" in both the state Assembly and Senate. So long as the judicial branch budget is brought back to a measure of fiscal viability, the legal profession will not mount an aggressive and distracting lobbying campaign. So, working with the Judicial Branch leadership - which has demonstrated a desire to partner with you - you essentially have a relatively clear path to fashion your own solutions and institute the cost-cutting reforms to increase the access to justice you have quietly talked about.
Fourth, if you fail to address this issue, your historical legacy may be affected. You are a history buff, so you know that policies impacting access to justice, fairness and the smooth administration of the law have a disproportionate effect on a public official's legacy. One of our great governors understood this and specifically addressed access to justice in his first inaugural address:
"There is a logjam in our California courts. In Los Angeles County alone, the backlog of civil cases climbed to nearly 16,000. Each case has to wait in line well over a year after it is ready for trial. In other counties, the situation is even worse. Last October when [the] Chief Justice called attention to this crisis in the courts, we were forcefully reminded that justice delayed, frequently is justice denied."
The year was 1959, the Chief Justice was Earl Warren, and the governor was your father, the great Pat Brown.
Starkly put, if you fail to address this issue, you run the risk of being remembered, at least in part, as the governor, and former state attorney general, who let the nation's once-best court system implode. You have accomplished too much, and fought too hard on these issues for too long, to allow such a catastrophe to define your legacy.
So Governor, please seriously turn your attention and considerable skills to this issue in the near future. In the short run, this means restoring funds to the judicial budget in 2014 and subsequent budget years. However, what is even more desperately needed is a stable, dedicated funding mechanism that will properly maintain the judicial system and alleviate the need for future governors to deal with such stark choices.
I wish you great continuing success for the remainder of your current term in office. I look forward to seeing you on the campaign trail, and in the voting booth - and then, in the history books.
Dan Grunfeld, a partner at Morgan, Lewis & Bockius in Los Angeles, heads its West Coast litigation practice.