Law and Judicial Economics

Law and Judicial Economics
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Judicial Economics 2003. When I ran "unsuccessfully" for statewide judicial office in 2000 I presented myself as a person who never saw a budget he couldn't cut. I believe I was the first candidate for any elective office anywhere on the face of the planet to create a personally-administered candidate's website containing a personal campaign weblog. I said

on my campaign weblog, "Just because the state has enjoyed budget surpluses in recent years doesn't mean we should simply plan on asking for more and more money every session, and we certainly shouldn't be asking for more if we haven't done our level best to find savings." As I did then, I've got a number of ideas, many of them new ones, on how state judicial systems can dramatically cut their costs in this day of massive budgetary shortfalls and belt-tightening. And some of these cuts not only won't cause any pain to the judicial system, they'll improve the system. I'm going to present some of these cost-cutting ideas in the days ahead. First off, I believe that now is the time for states to abolish mandatory judicial retirement because of age. During my campaign I wrote a lengthy essay making just that argument. In the course of arguing that mandatory retirement is bad public policy that is anti-democratic and wrongfully discriminatory on a spurious basis, I also said:

Not only does mandatory retirement increase the likelihood that more and more of our judges will be relatively young and short on experience, but it results in a system that arguably is costlier in economic terms than a nondiscriminatory system. When a judge retires at 70, because required to do so, the judge rightly begins to draw on his or her pension even if the judge returns to private practice and earns a second income. Not only does "the state," through the pension plan, have to pay a large pension to that mandatorily-retired-but-able judge, but it has to pay a full salary to the new judge who replaces the retired judge. And, more importantly, the state loses the accumulated wisdom and services of that judge and gets in exchange, more often than not these days, a very young judge who, as a cynic like Wilde might say, is more than happy to provide the state with the full benefits of his or her inexperience.

Many of us have a blind side. I believe one of the blind sides of our judicial system is its tolerance -- indeed, enthusiastic legal enforcement -- of discrimination on the basis of age against its own members. We as a society have advanced sufficiently in our moral development that we now think it wrong to bar women and people of color from the bench. Thus, we can't understand it when a judicial commission in Thailand rules that a person with a limp caused by polio may not be a judge because, according to this report, the commission members concluded that a judge with a limp cannot inspire the "public awe and respect" that judges must inspire. And thus, we laugh in amazement when we read, as in this report, that a blind woman who is a lawyer in Austria was told that she can't be a judge because she can't see the defendant. But we have this blindside of our own, which future generations will marvel over, concerning age. All lawyers age 70 and over, we say, are deemed to be disabled from serving as judges, disabled by law even though not disabled in fact. We have all sorts of rationalizations for this law -- all of them unacceptable. As in other areas [see Over the Hill in Hollywood, The Globe and Mail (12.16.2002)], such ageism is not only wrong, it also makes no economic sense. We should retire our mandatory retirement laws relating to judges because they are wrong, plain and simple. But if our legislature in Minnesota has no interest in righting a wrong that apparently as yet has stirred no moral outrage in anyone other than me, it might be interested in doing so if our judicial leaders tell them it's a way to save money and improve the system. For more on this, see BurtLaw on Mandatory Retirement of Judges. (01.06.2003)

Oregon courts confront budget crisis. Like courts in most states with budget crises, Oregon courts are facing their share of cuts in their budgets, not without howling a bit. Details (The Oregonian 12.11.2002) Here's an excerpt from one attorney's presentation of views on the court system budget-cutting there: "The problem with Oregon courts is that they have forgotten the needs of their customers. No, not the needs of lawyers, but the needs of ordinary citizens. In the courts' day to day activities in civil cases, it is primarily the schedule of the judges that prevails. Little consideration is given to the costs to citizens or their schedules or needs....The worst abomination is that staff are being asked to take a 10 percent pay cut -- but judges aren't. I can vouch for Washington County court staff. They are conscientious, hard working people who care about their mission and the people they serve. It is time for the judiciary to get down in the foxhole with their staff and take a voluntary 10 percent pay cut. Then they can put their shoulders to the wheel with the rest of us to find a way to do civil cases quicker and cheaper, with justice for all." More (Lauren Paulson in Hillsboro Argus 12.10.2002) (12.11.2002)

Government-funded trips by judges to Hawaii, Disneyland, Squaw Valley. "At a time when the governor must cut state spending by a quarter billion dollars, 21 Nevada judges billed the state a combined $28,237 to attend a June convention in Hawaii...." More (Las Vegas Review-Journal 07.17.2002). Ever wondered what goes on at government-funded judicial conferences, etc.? Do they withstand basic cost-benefit analysis? I don't know the answer. I've never been big on stuff like that. I'm guessing it's hard to generalize. If I were a judge, I wouldn't go to one if you paid me double, but then "that's me." In any event, Judge Chas. Cope, a Florida judge, testifying recently at a disciplinary hearing arising out of alleged misconduct he engaged in at an out-of-state judicial conference, said that he blames his misconduct partly on his own stupidity and partly on the alcohol that "flows freely" at these conferences. According to the Tampa Tribune 06.26.2002, he testified that "they have receptions all the time where alcohol is served." More. For a good example of what he was referring to, see this item. What's the solution? I personally favor lifting the veil of secrecy that surrounds so much of what judges do. "Sunshine and transparency are the rule in the city and state's executive and legislative branches. But the third branch remains secretive and unaccountable. Insulated from public scrutiny, unanswerable in the face of misconduct, the judiciary is a black hole behind black robes. Brandeis' cleansing light has never penetrated the dim reaches of state Supreme Court...." From an editorial in the New York Daily News 12.17.2001 focusing on the New York state courts but making some of the same recommendations I've advocated other courts, including ours in Minnesota, adopt. The editors note that the NYC Mayor for decades has produced "the semiannual, encyclopedic Mayor's Management Report." The key word about the semi-annual report is that it is "encyclopedic," allowing taxpayers to examine detailed data and independently evaluate how the government is doing. The editors propose, as I have done, that this detailed data should be easily accessible to the public "in print and via a court Web site." And they propose the report include hard-to-find data, including detailed information about individual judges. My previous proposals and suggestions may be found here, here and here, as well as elsewhere on this site. (07.18.2002) Related items: a) "Over a three-year period ending last year, city officials in Brooklyn Park [Minnesota] spent taxpayer money on a long list of questionable items -- tuxedo rentals, alcohol, rounds of golf for city officials, staff meetings at a Chuck E. Cheese's restaurant and 'giant triple treat' gourmet food gifts for consultants...." Audit criticizes Brooklyn Park's perks (Minneapolis Star-Tribune 07.18.2002). State Auditor's Report (pdf). b) "Some 200 Army personnel used government charge cards to get $38,000 in cash that they spent on 'lap dancing and other forms of entertainment' at strip clubs...." Investigation shows... (Savannah Morning News 07.18.2002).

The un-American way? From a column, Georgia's un-American judicial elections, by Bill Shipp in the Athens Banner-Herald 05.22.2002:

"Though the judge [in Georgia] are elected under the law, most judges, in fact, arrive at the bench via gubernatorial appointment. They later run in carefully crafted 'non-partisan primaries,' designed to insulate incumbents from bothersome challengers. In addition, judges are shielded from criticism by an inquisition-like panel whose rules obviously contravene the U.S. Constitution. Georgia thus remains in the odd circumstance of electing its lawmakers and law implementers in unfettered elections and its law interpreters in an orchestrated process designed to chill discourse and competition. For such an American exercise as voting, this approach is hardly the American way."

The gatekeeper's advantage. The New Republic has an interesting profile of Alberto Gonzales by Ryan Lizza. Gonzales is the guy who "wrote and publicly defended Bush's executive order on military tribunals," of which I was one of the earliest and most-outspoken critics, back when there were scores of gutless politicians and office-holders who believed the order was wrong but who remained silent because they feared the political ramifications of criticizing it. Gonzales is also, in the view of many, the leading contender to fill the next vacancy on the U.S. Supreme Court. Does he have an advantage over the other likely contenders? Yes, he not only has the President's ear but he's been the gatekeeper on judicial appointments. As Lizza puts it:

"Gonzales has one other advantage over Estrada and other potential rivals: As White House counsel, he'll be the one leading the search for a new justice when a vacancy occurs. And the last time Bush put someone else in charge of this sort of hunt, Dick Cheney ended up picking himself."

If you've read the first volume of Robert Caro's multi-volume bio of Lyndon Johnson, you may recall how Johnson turned a gatekeeper position at a podunk teachers college into a position of power. And if you've lived in a state like Minnesota, you've seen how generation after generation of partisan political sycophants and gubernatorial gatekeepers and right-hand men and women get themselves appointed to the judiciary -- from which lofty position they then hypocritically decry, as a threat to the independence of the judiciary, any intrusion of politics into the selection of judges by the ultimate selectors, the voters. More (05.22.2002)

145 judges refuse to cooperate! In an effort to save the jobs of some folks who are "lower" on the court system status pole, people who earn perhaps one-fifth or one-sixth of what judges with their job security make, a plan was proposed in Massachusetts that included judges, those Brahmins of the system, voluntarily sharing in the pain of temporary pay cuts. Alas, it appears 145 of them have refused to cooperate. Surprised? More (03.20.2002)

A few easy ways to cut the cost of government. a) Stop paying for Viagra prescriptions for people on welfare. More. b) Stop imprisoning so many people for drug and property offenses (at a $75 - $100 a day cost to taxpayers). More. c) Impose "civilian control" of the computer geeks in government, insisting on rigorous cost-benefit analysis. More. d) Say "no" to government funding of new stadiums every 20 years for pro teams that pay $7 million a year for pitchers with losing records and ERAs over 5. More. e) Stop funding conferences at expensive resorts for judges and others in government positions. More. f) Cut funding for judicial law clerks and insist that judges do their own work. Justice Wm. O. Douglas said to Eric Sevareid in a TV interview, "We don't need law clerks." When he urged his colleagues to conduct an experiment by not hiring any for a period of time, his suggestion met with silence. More. g) Enact meaningful and fair civil litigation reform. More. Want more ideas? Stay tuned. (03.19.2002)

Those poor, underpaid federal judges. Associate justices of the U.S. Supreme Court are paid $184,000 a year, the chief justice more. Federal appeals court judges receive $159,000; district judges $150,000. Many federal judges believe they are grossly underpaid (particularly when their salaries are compared with those received by attorneys in private practice with big corporate law

firms in major cities). Some of these judges filed suit claiming that for several years they were improperly denied cost-of-living increases which they reasonably expected as the result of a 1989 Congressional enactment and that the failure of the Government to effectuate these increases and fulfill their reasonable expectations violated the Compensation Clause of Article III, Section 1. A federal district court ruled in plaintiffs' favor but a circuit court panel, by a vote of 2-1, rejected the claim. Plaintiff judges sought certiorari. The U.S. Supreme Court has now denied the petition but not without Justices Breyer, Scalia and Kennedy publicly dissenting from the denial of "cert" in a 14-page opinion written by Breyer -- an opinion accompanied by "color graphs to prove [Breyer's] point that doctors, teachers, accountants and other professionals are outpacing judges and members of Congress in salaries," with some partners in the big law firms receiving more than $800,000 a year. More (L.A. Times 03.04.2002). The case is Williams v. U.S., No. 01-175. Click here for Solicitor General's brief opposing cert and here for access to Breyer's opinion. For some of my pontifications and fulminations on the issue of judicial pay, click here. (03.05.2002)

Latest effort to "clean up" judicial elections. I ran a low-key non-campaign for Chief Justice of the Minnesota Supreme Court in 2000. I solicited no money, from attorneys or anyone else, and I spent less than $100 on my campaign. I felt someone should run against the sitting chief justice, for reasons I need not state, but, for reasons I also need not state, I was unwilling to do anything other than "stand" for the office, publish a few essays on my self-designed and self-maintained $18-a-month campaign website (click here and here for slightly-modified versions of the essays), and respond to press requests for answers to questions. The campaign managers for my opponent solicited money and endorsements from lawyers, politicians and others and ran ads, and my opponent, a good woman with more political experience than I had, made public appearances and otherwise actually "ran" (rather than "stood") for election, spending @ $130,000 (I'm told) in the process. Our leading local newspapers in St. Paul and Minneapolis, for reasons known to them, basically didn't cover my modest non-campaign and my opponent's only slightly-less modest campaign. I got a call from a Minneapolis Star-Tribune reporter a couple weeks before the election asking for an interview (which I declined for reasons I need not state) for the only real story the paper ran on the contest during the entire campaign, and I received invitations to be interviewed by editorial boards of the papers (which I declined for reasons I need not state), but that basically was it. It was a good clean non-campaign up against a good clean campaign, the latter got over two votes for every one received by the former, and a good time was had by all, with nobody (certainly not the non-campaigner) losing any sleep. But, elsewhere, I'm told and I believe it, judicial elections are not so tranquil or cheap and the bar-association types and good-government organizations are quite concerned. Reform judicial races, critics urge, by Naftali Bendavid (Chicago Tribune 02.19.2002). Apparently, commissions are being formed and recommendations will be made for "reform." I'm a bit skeptical of the reformers (for reasons I need not state), although if I lived in a different state I might feel differently. Anyhow, I personally won't be surprised if the people who are appointed to come up with "reforms" are "the usual suspects," people who can be guaranteed to express the typical bar-association viewpoint on these matters, and I won't be surprised if the "reforms" they propose aren't the same tired ones that have been proposed before. I've got a few fresh ideas on what might be done and I could come up with some more if I tried, but I'm convinced fresh approaches aren't wanted. (02.19.2002)

How one state's judiciary is dealing with funding cut. In Massachusetts, which is facing a large revenue shortfall, the judicial branch must make do with a $40 million cut in funding for fiscal year 2002. The judiciary expects to shave nearly $30 million by reducing the 7,900-person work force to 6,700 by early retirements and attrition. How make up the estimated $12.5 million in additional spending cuts needed? Court officials decided to lay off a large number of employees with the least seniority or spread the pain as much as possible by getting judges and union- and nonunion-court employees to agree to work eight days without pay (to be reimbursed or receive additional vacation time later). The latter plan would save $11 million if all 7,900 employees participate and $1.5 million more if all judges participate. The employees apparently were more willing to cooperate than judges. At last report, enough will participate to save $10 million of the $11 million employees' share. Now the board of the Mass. Judges Conference, which represents 364 trial judges, has agreed to recommend participation by each of the judges while at the same time expressing strong disapproval of the plan. As of yesterday only 45% of these judges had given formal notice they will participate. More (Boston Globe). For ongoing coverage as well as links to coverage by the general press, click here (Mass. Lawyers Weekly). (02.14.2002) Update: 145 judges refuse to cooperate (Boston Globe 03.20.2002).

Boosting court employees' morale. "You need to boost our morale as we are the only ones working here. Pay us -- a few thousand rials -- and we will have your work done." This is what the editor of the Yemen Times was told by some clerks when he went to court to file some papers. From Judicial system of Yemen: Where injustice thrives (Yemen Times 02.25-03.03.2002).

Protecting the courts. One would think if the Chief Justice of the Maine Supreme Court had serious concerns about security in the courts, the last thing she would do is make things worse by giving a speech that basically tells small-time terrorists looking for a target that Maine's courthouses are "flatly unsafe." But that's what Chief Justice Leigh Ingalls Saufley did in her first "State of the Judiciary" speech. More (Kennebec Journal/ Maine Online, 02.20.2002). Coming as it did from tiny Maine and not, say, New York, the speech reminded me of the "news story" in The Onion dated 10.03.2001 reporting on Cedar Rapids Library Director Glenda Quarles' expression of similar concerns: "As caretakers of the most prominent public building in the second largest city in Iowa, this library can no longer afford to take chances." Perhaps Chief Justice Leigh Ingalls Saufley of Maine simply wants parity with judges in other states. Then again, perhaps they are overreacting, too. "State Supreme Court justices [in Illinois], who began using guards and taxpayer-funded cars last fall, are now asking for the guards to carry guns and make arrests...." One might ask, Is this really necessary? The president of the American Judges Association thinks the judges are "overdoing it." More (Chicago Sun-Times, 02.15.2002). All I can say is I know a former trial judge who once was the subject of a specific threat who nonetheless didn't ask for police protection. He contented himself with a permit to carry a loaded handgun. If the maker of the threat had tried to carry out the threat, I know who'd have prevailed. (02.21.2002)

Oh my God, the court case-assignment software doesn't work! This story reads like a story from The Onion but it's a real story from The Northwest Arkansas Times reporting that "Employees in the Washington County Circuit Clerk's Office are resorting to a manual selection method when assigning court cases to the district's judges [because a] computer system designed to select the appropriate judge for cases filed at the Circuit Clerk's Office isn't working." Fifteen or twenty years ago when court systems in some states were sold a bill of goods on the need for computerization of court record-keeping, etc., they were told there'd be efficiencies, savings, etc. I'm guessing an objective review would show there haven't been big savings and efficiencies but instead huge increases in expenditures, most of it going to high-paid computer folks. I remember when the clerk's office at the Minnesota Supreme Court, run by John McCarthy and a handful of employees, "did it all" and did it by hand. Did the gee-whiz computer system that replaced the old hand-entry system save big money or did it cost more and, if so, how much more? I'd like the real answer. Did the gee-whiz computer system improve the quality of justice significantly? I'd like the real answer. Is it possible the gee-whiz system made things worse, more cumbersome? I'd like the real answer. Interestingly, the Washington County, Arkansas Circuit Court Clerk, Betty Stamp, says, "I think we'd all prefer it be done by computer, but it's not something that's earthshaking. Sometimes the old fashioned way is the best way." Actually, I'm all for the use of computers in and out of court. But I think it's sort of like the military. We need "civilian control" of the military and we need, but haven't been getting in some states, greater "civilian control" of (rather than gullible deference to) the big-spending computer whiz kids who always seem to want more money but never seem able to deliver the promised savings and efficiencies. (01.07.2002)

Judges: Build us a courthouse (or give us a raise) or else! According to this story in the Reno Gazette-Journal last October 26, the judges of the municipal court there issued an ultimatum to the city council to build 'em a new courthouse or, or -- well, the threat sputtered by the judges was "or we'll order you to do so." I commented at the time that it's always comical to me when judges start acting like this. It must come from leading such repressed lives. The judicial virtues are "passive virtues," but some judicial appointees are better than others at passivity. Some let things bottle up inside until they reach the bursting point. Then out come the ultimatums or the arguments that the sky is falling: "Build us a courthouse or else" or "If we don't get a raise, we'll be getting less than some first-year law grads working on Wall Street and we'll have to quit and get a job there." :-) Now we read in this story in the Columbiana County Morning Journal, out of Northeastern Ohio, that the county commissioners, facing revenue shortfalls, ordered a 15% across-the-board budget cut for the first quarter and that some county common pleas judges don't like that. The judges informed the commissioners they're willing to go along with 10% less money but not 15% less. They sent the commissioners a letter telling them "We will acquiesce for now," but they also reminded the commissioners that they had issued an order requiring the commissioners to appropriate more. The letter directs the commissioners to restore the court appropriation "to the full amount we ordered" by August 1. Pretty funny stuff.... (01.07.2002) More, more, more, more.

Pig in a poke? Are Minnesota's taxpayers being asked to buy a pig in a poke? It's a question we should ask of all proposals for big-ticket items, especially proposals to build stadiums for owners of pro sports franchies, proposals for gee-whiz super-expensive computer networks, etc. Here are links to two recent stories in the St. Paul paper about CriMNet, the moniker of the big project some folks in the law enforcement and judicial communities are pushing. Links one and two. It got lost in the 09.11 events, but shortly before then, in one of his weekly radio addresses, President Bush announced that OMB (Office of Management and Budget) was "releasing a report identifying 14 long-neglected management problems in the federal government...." As an example, he said that "the United States government is the world's single largest purchaser of computers and other technologies for gathering and using information. In 2002, we will spend $45 billion on information technology. That's more than we've budgeted for highways and roads. Yet so far, and unlike private sector companies, this large investment has not cut the government's cost or improved people's lives in any way we can measure." I said then that I am encouraged by this sort of talk. In 2000, when I was a candidate for judicial office, I publicly addressed this same basic issue. I noted that the 09.25.2000 issue of Minnesota Lawyer contained a long, detailed article summarizing plans to implement what was referred to then as the Minnesota Court Information System (MNCIS) project, a massive project designed to provide a redesigned, new computerized court information system. With the same kind of budgetary precision that left court administrators with red faces earlier in...[more] (12.28.2001)

Chief Justice Rehnquist's annual year-end complaints. Each December 31st Chief Justice Rehnquist releases an annual report, in which he typically complains, inter alia, about the relatively low pay judges receive compared to that received by lawyers in private practice working for the big corporate law firms. This year the Chief's slant on the salary issue is that if we taxpayers don't start paying judges more, we won't be able to lure lawyers in private practice to serve as judges. More. While I respect the Chief, I don't share his concern. I explain why in a piece I'm titling, "I could be making lots more if I were Michael Jordan...." Read on....

"I could be making lots more if I were Michael Jordan...." Commenting on the fact that "Michael Jordan was paid more money for endorsing Nike shoes than the company's 30,000-strong workforce of cobblers in far-off Indonesia," Robert Winder argued last year in The New Statesman that "[i]f anything, Jordan's fee was an understatement of his value to the company." My response was, "Maybe so, but...."

The fact that one maybe could get more doing something else is an argument that "crackerjack judges" (the phrase is that of our parochial Minneapolis Star-Tribune editors) on the federal and state level are always making in whining that they need a pay raise. As I said, Chief Justice Rehnquist regularly makes it in his annual year-end report. See, also, White Paper on Judicial Salaries, jointly released by the ABA and the Federal Bar Association on 02.13.01.

In order to put the matter of judicial salaries in proper perspective, it is worth mentioning a) the extraordinary pensions judges stand to receive, b) the security of position they typically enjoy (even in states in which they must stand for election), and c) the other wonderful perquisites of office. For example, the members of the U.S. Supreme Court have their own gymnasium, and (assuming nothing has changed since last time I checked) Minnesota Supreme Court Justices have private bathrooms in their chambers, small kitchens, two personal law clerks and a personal secretary each, a private lunchroom, reimbursement for expensive federal and state bar association membership dues and expensive tuition for continuing education courses, the opportunity to represent the court at in-state and out-of-state bar meetings, conventions and retreats, heated underground parking at a modest fee, etc.

While conveniently not mentioning these extraordinary benefits of office, many judges (and their lawyer advocates, usually from the big firms) argue that judges deserve a raise because, among other things, attorneys fresh out of law school signing on with the big corporate law firms (where starting salaries have been skyrocketing) are getting paid as much as they are getting paid with all their vast experience. A former federal judge who left the bench to join a 400-member firm of Philadelphia lawyers explained, "You have to live like a lawyer, but you get paid like a judge," and living like a lawyer, he adds, includes paying expensive tuition at private schools for his children, something that apparently (and oh so sadly) was difficult when he was on the bench.

But, the fact is that every time there's a vacancy, many, many talented lawyers -- including those with years of experience in private practice --literally clammer to get themselves appointed as replacements of those retiring. As a New York Times reader, a lawyer, pointed out in a letter to the editor last year, "public interest and academic jobs pay less...but they are notoriously more difficult to land...because cash is not the only currency that matters." (Jonathan Freiman, 01.29.2001) "[G]ood lawyers often choose to take less money to do something they value more." Id. As our extraordinary former Minnesota Chief Justice, A.M. "Sandy" Keith, has said in public on more than one occasion, every day that he was a judge was to him "a gift," a chance to serve the public. Not all compensation is monetary. As Mr. Freiman pointed out, the opportunity to serve Justice, and one's country, is "worth a pretty penny."

Our greatest judge, Holmes, said in his famous Path of the Law address at Boston University Law School over 100 years ago, when $50,000 was perhaps the equivalent of $500,000 now: "[H]appiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success."10 Harv. L. Rev. 457, 478 (1897). Justice Holmes was so grateful for his opportunity to serve that when he died he left the bulk of his then-large estate to the federal government.

I worked as a trusted aide and advisor to the Minnesota Supreme Court for over 28 years. Of course I never got paid as much as I could have earned if I had chosen to walk down a different road in that yellow wood where the roads diverged. So what? I never asked for a raise in all that time, even though it was always the case that young law graduates with no experience regularly started at higher salaries with the big firms than I was making with my years of experience. A new graduate from one of our finer law schools who starts work with a large firm this coming summer will receive a salary higher than the salary I received when I left the court in 1998. Again, so what? I was just happy to be making as much as I made, which was far more than what the median wage earner earned. As of 01.01.2002, U.S. district judges receive $150,000 a year, and federal circuit judges and Supreme Court justices make more, with the Chief Justice receiving a whopping $192,600.

There never has been a shortage of highly-qualified good people -- many of them as good as or better than those now serving in judicial office -- who would be more than happy to serve as judges, at salaries much lower. My view: vote to give judges fair monetary compensation if they "give good weight," but don't be fooled by the old basically irrelevant arguments that they could be making lots more if they were just out of law school signing on with the big corporate law firms. To that sad argument, one should reply, "So what?" (01.01.2002)

Sunlight is best disinfectant. "Sunshine and transparency are the rule in the city and state's executive and legislative branches. But the third branch remains secretive and unaccountable. Insulated from public scrutiny, unanswerable in the face of misconduct, the judiciary is a black hole behind black robes. Brandeis' cleansing light has never penetrated the dim reaches of state Supreme Court...." From an editorial in the New York Daily News 12.17.2001 focusing on the New York state courts but making some of the same recommendations I've advocated other courts, including ours in Minnesota, adopt. The editors note that the NYC Mayor for decades has produced "the semiannual, encyclopedic Mayor's Management Report." The key word about the semi-annual report is that it is "encyclopedic," allowing taxpayers to examine detailed data and independently evaluate how the government is doing. The editors propose, as I have done, that this detailed data should be easily accessible to the public "in print and via a court Web site." And they propose the report include hard-to-find data, including detailed information about individual judges. My proposals and suggestions may be found here, here and here, as well as elsewhere on this site. (12.18.2001)

Judicial conference. Four hundred and fifty Florida judges were attending a taxpayer-financed "judicial conference" at the upscale Amelia Island Plantation resort last week. One of them was 44-year-old Judge Joyce Julian. Judge Julian, depicted here, had her own reservation but canceled it because she was staying with another guest at the resort, whose identity her lawyer will not identify. She has a lawyer speaking for her because she was arrested by police after she was found around 3 a.m. in a third-floor hallway naked from the waist down. The hotel security officer who found her says she refused to identify herself and ran. Police arrest report says she was "extremely intoxicated and verbally combative." It apparently wasn't until she was in the squad car that she said she was a judge and was the victim of an attempted sexual assault. Whether she was or wasn't, her behavior in the bar that night should be of interest to Florida voters and taxpayers. Witnesses say she was at the bar for four hours, before leaving at 2:15 a.m. and was drinking heavily and dancing. When she left she "could not walk" and was "all over the place." More (Miami Herald). Without regard to whether judges participating in these "conferences" comport themselves well after hours, I have a suggestion to governors around the country who are reviewing budget requests submitted by courts in these times of severe revenue shortfalls: don't go laying off so-called lower-level non-essential court employees. Instead, tell the court administrators to draw a red pencil through all requests for appropriations for judicial "conferences" at resorts. While you're at it, tell them to do the same for requests for appropriations for judicial travel, meal and "educational" expense allowances, for catered judicial meetings, for subscriptions, for memberships in bar associations, for bottled water, etc. Do the same for the prosecutors and the public defenders. These folks, judges included, are all public lawyers receiving not just big paychecks but generous pensions, generous vacation allowances (typically, 4 weeks), more paid holidays than most workers get, good working conditions, etc. (12.07.2001) Update: Judge enters rehab following arrest (South Florida Sun-Sentinel 12.10.2001); Judge won't face charge for false report, other charges will be dismissed if.... (Florida Times-Union 12.15.2001); Attorneys in sex-related cases ask judge who made false report of sex crime to recuse (South Florida Sun-Sentinel, 01.11.2002); Judge Julian completes rehab, now presides over drug court (Miami Herald, 01.23.2002); Judge Julian reassigned to family court (Law.Com, 02.19.2002). Compare: College student who wants to become an attorney (and maybe a judge?) has been sentenced to probation for filing false claim of rape (Des Moines Register, 01.08.2002 via Overlawyered); Judge caught taking beer in African jurisdiction ruled by Islamic "Sharia law" is sentenced to 80 strokes of the cane in market square and likely will be dismissed from office (AllAfrica, 01.21.2002).

Cost per vote. Bloomberg, Mayor-elect of NYC, reportedly spent $92.60 per vote to get elected. More (NYTimes). Hmm. I got over 500,000 votes last year and spent less than $100 total. That means I got over 5,000 votes per dollar spent.or more than 50 votes per penny. :-) Alas, elections aren't decided on the basis of who gets the most votes per dollar spent. :-( (12.05.2001)

Reining in those wild-spending judges. Everything is relative. A simple breakfast that costs $1.99 in a small town might cost ten times that in New York City. One man's penny-pinching is another man's extravagance. A county commissioner might get upset if a judge under his fiscal jurisdiction spends $3,500 for a new desk and chair for his chambers, whereas a United States Senator might think nothing of supporting the appropriation of $150 million for the construction of a new federal courthouse in the state, a courthouse in which each judge has his own bathroom and kitchenette. One of the beauties of American democracy is one never knows when the taxpayers and voters are going to get upset over this-or-that public expenditure. The unpredictability of taxpayers and voters helps, at least theoretically, to keep our elected representatives on their tippie-toes. Case in point: Earlier this year county commissioners in Hood County, Texas spent weeks trimming $2 million from the county budget because of revenue shortfalls. Nonetheless, perhaps because the county court's approved budget included money for new furniture for him, County Court-at-Law Judge Richard Hattox went shopping, eventually

settling on a desk and chair that cost the county $3,500. The commissioners got wind of this and two of them made a fuss about it before the other three approved the purchase. One of the two who made the fuss said, "It just doesn’t feel right to me. I don’t see how a $1,000 chair will help do business any better." The judge, however, claims the two were "trying to undermine me politically." One of the judge's supporters said, "You get what you pay for. This equipment is of quality that will last the county for generations." More (Hood County News). As I said, everything is relative. The best, most comfortable chair I own is a mint-condition classic Goodform-brand light-weight aluminum office side chair (with arm rests and upholstered cushion and back rest) made in the 1950's by General Fireproofing Company in Ohio. If I were a judge, I'd take it with me to my chambers and use it as my primary work chair. I bought it on E-Bay for $90 (shipping included). I've been worried I spent too much, but then, you know, you get what you pay for. This chair is one that not only will last for generations to come, it has already lasted a few generations. (11.28.2001)

"I've never met a budget I couldn't cut." Who said that? Will Rogers said he'd never met a man he didn't like. Well, I may be exaggerating but I've never seen a government agency's budget that couldn't be cut. There's always fat in such budgets, in my opinion. In recent years some judges and court administrators feel terribly hurt if the legislature pares their requested increase in appropriations. This year it appears some courts around the country are going to have to come up with actual cuts in current budgets, not mere cuts in projected budget increases. I don't have sufficient details to figure out for myself into which category the Kansas court system falls. In any particular state that may be the result of the difficulty of an ordinary citizen -- even a legislator -- getting the real details needed to personally reach a conclusion. In any event, this story, from the Topeka Capital-Journal, suggests to me that the cuts that court system is facing are cuts from the amount the judges and administrators feel they need, not necessarily cuts from the amount received the previous fiscal year. The article states that the court's $89,600,000 budget for fiscal 2002 is $2,00,000 short of the amount said to be "needed." Among the things the chief justice says the court system is doing to make ends meet are a) keeping any staff vacancies open for 60 days before replacements commence work; b) restricting amounts spent on temporary workers; c) restricting amounts spent on travel; d) possibly closing courts for three days during the year and not paying salaries for those days; and e) possibly cutting court hours in some locations. The "saddest" sacrifice is that which the chief justice will make. Her permanent research attorney recently quit to take another job, and the chief will work without a replacement for two months, making her, for two months, the only chief justice in the nation without such a research attorney (though presumably not without a law clerk). Says the chief, "Shortchanging justice is a poor economy for our citizens." I've said it before and I'll say it again: if judges and administrators are wise, they'll start providing their employers -- you and me -- detailed budgets and other relevant information, including itemized travel and expense reports, timesheets, etc., for every judge and judicial employee. Much of the information could be posted easily and cheaply on the court's web site for easy access by taxpayers. If we had that kind of information, who knows -- maybe we'd give the judges more than they request. Then again, maybe we'd give them less. It all depends on what the information reveals. More.... (10.30.2001)

When "governments" (including courts) buy computers. In his weekly radio address on 08.25.2001, Pres. Bush announced that OMB (Office of Management and Budget) was "releasing a report identifying 14 long-neglected management problems in the federal government...." As an example, he said that "the United States government is the world's single largest purchaser of computers and other technologies for gathering and using information. In 2002, we will spend $45 billion on information technology. That's more than we've budgeted for highways and roads. Yet so far, and unlike private sector companies, this large investment has not cut the government's cost or improved people's lives in any way we can measure." I am encouraged by this sort of talk, and I hope the President follows through on it.

In 2000, when I was a candidate for judicial office, I publicly addressed this same basic issue. I noted that the 09.25.2000 issue of Minnesota Lawyer contained a long, detailed article summarizing plans to implement the Minnesota Court Information System (MNCIS) project, a massive project designed to provide a redesigned, new computerized court information system. With the same kind of budgetary precision that left court administrators with red faces earlier in 2000, the director of the Minnesota Supreme Court's Information Technology Division (ITD), a good man running a big budget operation, was reported as estimating the cost of the project at somewhere "between $20 million and $60 million." At that point the legislature had "set aside" a total of $6.5 million for the project. According to the report, "[The director] does not anticipate any major obstacles to receiving the rest of the funds needed for the project, at least not any more so than other projects." I said that the director apparently did not anticipate that the voters might elect me chief justice, because as chief I would be an "obstacle" to requesting any more funds without first a) receiving a detailed item-by-item economic cost-benefit analysis that satisfied me, b) personally consulting with independent outside experts not affiliated or acquainted with "ITD" personnel, and c) making sure that public information compiled and analyzed by such a system is going to be as available to the public (and, it follows, the press) as to judges, administrators, and other judicial personnel, and quickly via the internet. I said that any system that does not provide the public with maximum access to all public data, including court pleadings and briefs filed electronically, would not pass scrutiny, at least not mine.

I suggested further that true judicial accountability requires that the chief justice and associate justices give "strict scrutiny" to the entire budget for the entire state court system. I even suggested that "cost-cutting" was possible. I said that just because the state has enjoyed budget surpluses in recent years doesn't mean we should simply plan on asking for more and more money every session, and we certainly shouldn't be asking for more if we haven't done our level best to find savings. And each interested person ought to have full access via the internet to the detailed line-by-line, item-by-item, salary-by-salary budget rather than the kind of "lite" summary budget that is typically publicly available. Now, a year later, it should be clearer to everyone that budgetary restraint is as imperative at all levels of government, local, state and federal, as it is with most families. (08.26.2001)

Jacques Barzun on how to improve colleges and make them more affordable. "With the nature of a basic college understood and respected, the cost of tuition comes down to a point where those middle-class families now ineligible for help will not have to go heavily into debt. By the same economy, the full subsidy of the less well off becomes possible. Seeing reason return to the academy, many people whose exchequer is now drained by tuition will be grateful to give money for scholarships." From a provocative essay, Trim the College? -- A Utopia! by Jacques Barzun from The Chronicle of Higher Education. At some point I am going to spell out in some detail how courts can also be improved and made more affordable to taxpayers and those who use them (i.e., all of us).

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

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