Budgeting Contempt


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A paper presented at the "Civil Discourse to Resolve Governmental Crises" conference at the University of Washington, put on by the Evergreen Chapter of ASPA, the American Society for Public Administration.

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Budgeting Contempt

  1. 1. Budgeting Contempt: Civility and Court Administration in Difficult Times Presented at the University of Washington Evergreen ASPA Conference – October 10, 2012 by Nathan Jensen MPA Candidate 2013 at Sam Houston State University, Huntsville, TX – College of Humanities and Social SciencesAdministrative Assistant, Second Administrative Judicial Region of Texas, Conroe, TX 1
  2. 2. Introduction In considering the role of courts in broader society, the drive of much of the research into theeffectiveness of the courts focuses on the effectiveness of the courts distributive justice, or the abilityof the courts to provide a just and equitable resolution to conflict. Less studied, but admittedly just asimportant, is the function of the court to provide procedural fairness. It is this procedural fairness thatis the foundation of civility in court administration. The author is indebted to the work of Dr. TomTyler at Yale University and the Center for Court Innovation in New York for their groundbreakingwork on this aspect of the subject matter. The corollary to this discussion on procedural fairness is the idea of civil communicationbetween the courts and the legislative bodies that regulate the currently tight budgets for courtadministration in the states. In this respect, the courts are better able to communicate their needs to thelegislature by helping to more civilly and openly carry out the budget process. This paper will examine pressures on the judiciary both internal and external, as well as thepossible solutions to alleviate these pressures through civil discourse.Internal Pressures The swirling mix of courthouse characters, lawyers, judges, court staff, clerks, and the public ingeneral, can often put the crucial role of communication into disarray, putting an emphasis on swiftnessas opposed to civility. It would appear that despite professional associations best efforts at draftingcreeds that enforce ideas of fairness and due process, there is still an ingredient lacking in court 2
  3. 3. administration itself. Due to the aforementioned swiftness (most likely a conflation of quick actionwith efficiency), court staff are often not trained in the nuances of how they communicate, but rather inwhat they communicate. This is demonstrated in a recent Facebook conversation:Attorney 1, CO - “I don’t believe I’ve ever met a court clerk who was of any real benefit to the publicthat they serve. Court clerks come in great numbers, yet to the last one of them they seem as dumb asrock salt and as unwilling to help in the simplest of ways. One could ask a clerk: Excuse me, where’sthe bathroom? The reply would be, I’m sorry, I’m not authorized to practice law. Idiots one and all."Attorney 2, UT - “In Provo the line I get is i cant give you legal advice, you should talk to a lawyer.Pause. I am a lawyer. Im not asking for legal advice. Im telling you that your rules of civil procedureare poorly written and dont cover this situation, and Id like to know what your judge wants to see onpaper. Im sorry, we cant give legal advice. FOR THE LOVE!!”Attorney 1, CO - “You hit it right on the head! Thats what drives me crazy. This clerk today told methat I should consult an attorney. I asked her Who else but an attorney would even ask you this highlytechnical question? She had the audacity to tell me that I should go back to my office and research theissue some more. So I audaciously told her that I understood perfectly well why her desk waspositioned behind iron bars and anti-ballistic glass. She looked shocked.” (used by permission) The most noticeable aspect of the exchange was the escalation of emotion and the correlatingresponses on the part of the attorneys as they became frustrated with the court clerks. This sameescalation corresponds with the public who seek information from local government offices of alltypes. There is a vast difference between Max Webers spirit of impersonality and the unhelpful nature 3
  4. 4. of some of these courthouse communications. Not only does it show workers who do not care, itexhibits a broader problem in terms of lack of professional communication in the public square. To what extent is this really a problem? In research conducted over the past 20 plus years,litigants perceptions of procedural justice, or how they were treated throughout the process of seekingjustice, exerted more influence on litigants sum view of the courts than their perceptions of distributivejustice (Casper, Tyler & Fisher 1988; Tyler and Huo 2002; Sunshine and Tyler 2003). Similar resultscould most likely be achieved with other public sector entities. Fair treatment should be the standardfor all forms of government, though it is still commonly assumed that those standards of treatment havealready been implemented.Professional Standards The standards of professionalism have been enshrined in codes of conduct for differentprofessional associations – both public and private. The Utah Bar Association for example notes that“Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes thefundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends todelay and often to deny justice.” (Utah Supreme Court, 2003) The judiciary and the bar have long hadthese types of standards (and often provided sanctions for violations), but it would appear that theintermediaries between these two, the administrative arm of the courts, may need greater emphasis puton civility in communications.Ethical Basis 4
  5. 5. At the root of these standards of professionalism is the philosophy of deontological ethics,which views others as “ends in themselves.” The ultimate goal is the realization of human dignity andrespect. While offering stock answers from a clerks service window may not seem an outrageousviolation of human dignity, it does indicate a lack of respect by not paying attention to the questionbeing asked. This germ of incivility has an example above dealing with an attorney. How might theclerk respond to a self represented litigant?Self-Represented Litigants One of the major indicators of the bad economy on the courts is in the number of selfrepresented litigants accessing the justice system. According to a 2009 survey conducted by the Self-Represented Litigation Network, 60% of judges nationwide reported an increase in self representedlitigants in their courtrooms, across all types of cases (Texas ATJ Commission, 2011). Even theSupreme Court has recently weighed in on the subject, noting in Turner v. Rogers (2011) that courtsmay need to put in place “alternative procedures that assure a fundamentally fair determination.” Thebackground of the case involved a man who was denied counsel in a child support proceeding, withoutbeing given any further accommodations by the court as a self represented litigant. This increase in self representation has contributed to all manner of confrontations andmisunderstandings in the judicial system between self represented litigants and the courts, includingcourt staff. While the court systems of some states have been innovative in publishing forms andbreaking down processes to their most basic and easy to follow parts, there is still pressure on the courtsystem from the self represented public to provide a more fair and civil environment in which to try andmanage cases. 5
  6. 6. In terms of incivility, the burden of change rests on everybody. Court administrators must becalm in the face of stressful situations, and self represented litigants need to understand the essentialnature of calmness and rationality within court proceedings. It is the court of law which replaces theduel and the lynch mob, and provides the hallmark of a civil society. Bringing the impassioned frayinto a court can only delay justice.External Pressures The majority of pressures on the courts come from the judicial system itself. This pressurecomes most often from those who have business with the court. While the day to day seems to providethe most pressing issues, the issue of budget matters, and the cuts made to the already smallest branchof government, remain close at hand. In reference to the budget cuts being forced on state judiciaries, Ted Olson, co-chair of theAmerican Bar Associations Task Force on Preservation of the Justice System, stated, “Really, we’vecut to the bone, we’re now into the bone and finding the marrow. It is that serious a problem.” (Smith,2012) The obvious question is what do these budget cuts have to do with civility in government? Theanswer lies in the aforementioned ethical argument for civility, treating others as “ends in themselves.” The argument made by the legislature for cutting the budget for the judiciary is often acooperative one: every agency needs to sacrifice. Often the judiciary is not viewed as a separate branchof government by state legislatures, but as one more executive branch agency or department to befunded. This mode of thinking not only disrespects the importance of the judiciary, it also does nottake the judiciarys larger role in society into consideration. At budget time, the judiciary has latelybeen considered as “means” toward a balanced budget, rather than the “ends” for a civil society. 6
  7. 7. Toward a more cohesive understanding of the issue, David Boies, the other co-chair of the TaskForce on Preservation of the Justice System, declared “it [the justice system] is something that wedepend on for our economy, for our families, for our constitutional rights, and for justice.” (Boies, etal., 2011) Such a far reaching mission is definitively worth saving. One reason for this dichotomy between the branches was noted by Curtis L. Child, the directorof the Office of Government Affairs at the Administrative Office of the Courts in California. He stated“one factor is that term limits adopted in some states have made it more difficult for the judiciary togarner long-term support from elected officials. Another problem is that the number of lawyers whoare legislators is dwindling in states around the country.” (Podgers, 2012) The built in respect for thecourts and standards of professionalism are being replaced by partisan rancor. Yet even that reasoningfalls short when the obligation for civility exists in the public square. Politics should not govern thecourtroom, nor the court budget. While calls for civility in the budget debate seem to be one sided, any solution that can beoffered to mitigate the problem has to address two way communication as a whole. There are tools tobe used, but they require at least two parties to operate.Internal Solutions Returning to the problems facing the court on a daily basis, we look at the internal solutions thatcan be effected to solve those problems. Dr. Tom Taylor, law professor at Yale Law School, and the authority on the subject of civility inthe courts, identified three critical dimensions of “procedural fairness:” First, there is voice, or thelitigants perception that the judge is hearing their side of the story. Second, there is respect, or the 7
  8. 8. litigants perception that they are being treated courteously by judges, attorneys and court staff. Thirdis neutrality, or the litigants perception that the process they are undergoing is unbiased andtrustworthy (Tyler, 1990). The thing to note in all of these methods, is that they are contingent on alitigants perceptions, a highly subjective category to be certain. It should be remembered that litigantsare not objective about their claims; a reason for attorneys to be hired in the first place. In spite of thisinherent subjectivity, there is much that the court can do. For the purposes of this paper, these can bedivided into two categories: written communication and personal communication.Written Communication Part of procedural fairness is ensuring that instructions for litigants, particularly self representedones, are clear and available. Of the 12 courts handling substantial cases in my home county(Montgomery County, Texas) only a handful have any link to the Local Rules that apply to that court.Only three provide any access to forms for setting a hearing or notice of representation, or any of theother common documents needed in a court case. Someone trying to represent themselves would be upagainst not only a wall, but a rather high one. While accessing documents on a website is not the onlyway to gauge the courts efforts in this regard, the continuing rise of Internet usage demands a greaterpush for the availability of these resources. Understandable signage in a public building is also important, and not always thought of whencontemplating civility. Relying on the security guards at the front of the courthouse for informationwill not always yield the best results for a litigant in terms of procedural fairness. Civility in this wayis respect and transparency. Litigants cannot feel that they are being deprived of respect when thecourts have gone to such trouble to make sure that those seeking justice know where to go to seek it.These self-represented litigants need to feel that they have access to the knowledge of the laws that can 8
  9. 9. send them to jail or take their children away. Law libraries are not cheap endeavors. To create andstaff one can be a divisive budget issue, yet it helps turn self represented litigants over to morequalified sources (away from court staff who many self represented litigants come to rely on). Social media, while a danger for judges to use in possible violation of canons of ethics, can be apowerful tool for court administrators to pass along vital information on not only court procedures, butthe work of the judges in crafting a better local justice system. If uncivil behavior is a major cause ofdistrust towards government, advertising the good that is coming from the judiciary can only help. The solutions for improving written communication are already in place elsewhere, and the onlymissing aspect is the resolve necessary to get solutions implemented. Nothing here is novel, and formsas well as signage would have a marked effect on the sense of fairness and civility associated withcourt proceedings and government interactions in general.Personal Communication Working with judges, the author is able to see how judges act both on and off the bench. Attimes there is a very real Jekyll and Hyde comparison. Are judges supposed to be mean or impatient?It would seem like running the business of the court means a judge who gets down to business.However, is this the best way to view work that impacts not only daily lives, but perceptions ofgovernment itself? In 2001, Hennepin County, Minnesota evaluated trial judges nonverbal behavior. It wasdetermined that about a third of the judges relied “significantly” on nonverbal behavior as a means ofcommunication and that almost every judge was seen using ineffective nonverbal behavior which wasdenoted as demonstrating “boredom, distraction, exasperation and anger.” (cited by Burke and Leben,2007) 9
  10. 10. The question remains to be asked, does changing micro-behavior like nonverbal cues create anoverall changed perception of the process? The answer according to research is yes. How does exhibiting boredom or distraction (as opposed to the more typical exasperation andanger) equate to uncivil behavior? The answer returns again to respect. Respectful communication isengaged communication, which some judges are unwilling to do (particularly in civil cases) because ofthe risk of appearing biased to one side or the other. While some judges feel that being equally stern toall parties is a good start, the results of greater faith in the process will lead to greater faith in thesystem as a whole. The inherent value of these solutions is lost without some means of evaluation. The CourToolssurvey developed by the National Center for State Courts can be used effectively to gauge whetherthese measures are sufficient or insufficient, effective or ineffective. The survey tracks differentmeasures such as forms were clear and easy to understand, court removes barriers to service, court staffpaid attention to my needs, treated with courtesy and respect, and others.Creeds and Coursework In the authors experience, the vast majority of court clerks and staff are competentprofessionals who have a desire to do a great job. They are often successful in those goals, yet theinner reflection and self-analysis that is required for a more civil public administration of justice is notoften practiced or encouraged. A good example of this came at a work conference that I attended in2009. A director of indigent defense was describing a legislative initiative that was successfully passedextending greater and more consistent legal representation for defendants in criminal cases. His intenseenthusiasm was met with a deafening silence. After looking around, it was confirmed that the audiencewas listening. The immediate impression was that the majority of the professionals there were not 10
  11. 11. interested in improving basic rights to the poor. Coursework at professional conferences often focuses on how to alleviate stresses or getmotivated. It would be advantageous for civility to take its place alongside ethics as a major course ofstudy for court professionals. Court staff learn how to deal with self-represented litigants, but thebehavior reflection required of civility training is rarely if ever addressed in the curriculum. Alongside coursework in civility, professional creeds are an important tool in ensuringdedication to principles, such as civility. Much could be adapted from the professional creeds used byattorneys, including language that denotes the responsibilities on public administrators in the courts tospeak and act civilly. While not every internal pressure on the courts can be alleviated by a more civil communicationbetween all parties, the importance for mutual respect in word and action is prescient, now more thanever.External Solutions In the section discussing external pressures, it was noted that many of the pressures seem tocome from a scalpel wielding legislature, eager to slash judicial budgets. While the pressure may seemto be one sided, any solution must be the responsibility of two parties to implement; us and them.Values and Respect The professional creeds that focus on ethics are really intrinsically tied to any discussion ofcivility. The ethical framework for civil discourse, as noted earlier, is treating others as “ends in 11
  12. 12. themselves.” If we are to understand that which is right, we need to view others as the player and notthe pawn. The question of how this can be applied in situations where little conversation happens priorto the meeting is answered by the term “mutual respect.” By letting the budget officers control the conversation, the values they hold will be the solecriterion for the meeting. By coming to the table with values in mind and a willingness to expressthose values at the outset in a non-confrontational but firm way, the agency can both respect the desiresof the budget officers and keep balanced control over the conversation. So often the representative forthe agency is at the budget meeting with facts and figures to support their budgetary arguments (as self-represented litigants often appear at the court clerks window with War and Peace to show injustices),but the key to creating a civil discursive environment is to come armed with strongly held values thatback up desired initiatives, as well as the requisite facts and figures.Modes and Methodology One of the more interesting dichotomies that appears at every budget hearing is the pitchedbattle between officers interested in conducting cost/benefit analysis and agencies more interested inshowing cost/effectiveness analysis in their proposals. Going back to values, the key to bridging thisdichotomy is in civil discourse, and in particular, the use of shared values to engender respect and usepersuasion. In looking at the two analysis models compared here, the common denominator is cost.Building a conversation based on cost can draw new angles into consideration, such as how effectivethe program is at saving the governmental body money in the short and or long run. In much the sameway that an attorney selects jurors based on what they value, the associated conversation of a budgethearing can be directed in the same respect. Of course, the budget officers are not likely to tell the agency what their mode of thinking is, 12
  13. 13. but those presenting budget proposals should be prepared to examine what the budget officers value interms of worthy expenditure. In any respect, all parties should be transparent about their goals for theconversation, in order for healthy and accurate communication to take place. Something to note in this methodology, is that one cannot assume a passive-aggressive positionthat outwardly expresses demurring to the other side, while inwardly maintaining a latent enmity. Thismode of communication is designed to specifically encourage respect between parties. If aconversation in this regard is not going in the direction desired, the values should once again be held upand examined for commonalities; ethics being the basis for civility, there is no room for intellectual orcommunicative dishonesty.Cautions Legislatures that are composed of businessmen and women are going to be automatically moredisposed to treat government, and in this case, the judiciary as a business. In terms of winning anelection, the promise sounds viable, but entrepreneurs are never going to willingly take on some of thefunctions government is necessarily tasked with, such as the criminal court system. In maintaining acivil dialogue with budget officers, the essential point to remember is that both parties are there toadminister a stewardship. By focusing on similarities rather than political or philosophical differences,the outcome can be all the more productive for everyone involved.Conclusion If we are going to fix civility problems in the justice system, it is going to start with everydaytrial court judges and court staff, not with political candidates espousing large scale ideas. Civility has 13
  14. 14. to become a habit, and it is one that should be encouraged by local leaders as a step towards greatersanity from the ground up. Education in civil discourse for these purposes cannot be overstated. The internal pressures of more numerous self-represented litigants, and the tendency of courtclerks to fly on auto-pilot, can be alleviated by turning to standards of professionalism for courtadministrators for creeds of civility, as well as greater education on what does and does not constitutelegal advice, for the express purpose of aiding self-represented litigants. Signage and forms also play alarge role in this last regard, as simplifying the process for seeking justice is truly considering others as“ends unto themselves.” The external pressures of looming (and actual) budget cuts that are severely limiting thejudiciarys ability to carry out its mission, can be alleviated by implementing communicationtechniques that build on principles held in common, preventing an unfriendly and disrespectingparadigm from governing the conversation. While not every budget request can always be fulfilledunder such a scheme, the fact is that values held in common will tend toward more civil discourse thanacting in enmity. Holding out respect as a value within the courts, and public administration in general, alongwith the types of communication which denote and engender respect, will lead to something that publicadministrators and politicians alike seek out: trust. It is in the trust of the public, as well as fellowpractitioners, that government can truly function to the best of its ability. 14
  15. 15. Works Cited- Boies, D., Olson, T., et al. ABA Task Force on Preservation of the Justice System, "New EnglandRegion Hearing, May 26, 2011." Accessed September 4,2012. www.americanbar.org/content/dam/aba/administrative/task_force/5_26_11_aba_taskforce_transcript.authcheckdam.pdf- Burke, K., and S. Leben. American Judges Association, "Procedural Fairness: A Key Ingredient inPublic Satisfaction." Last modified 2007. Accessed September 19, 2012.http://aja.ncsc.dni.us/courtrv/cr44-1/CR44-1-2BurkeLeben.pdf.- Casper, J.D., T. Tyler, and B. Fisher. "Procedural Justice in Felony Cases." Law & Society Review. 22.(1988): 483-507.- Multiple Authors. National Center for State Courts, "CourTools Performance Measures." Lastmodified 2012. Accessed September 19, 2012. http://www.courtools.org/Trial-Court-Performance-Measures.aspx.- Multiple Authors. Texas Access to Justice Commission, "Self Represented Litigants." Last modified2012. Accessed September 19, 2012. http://www.texasatj.org/SRL.- Multiple Authors. Utah Supreme Court, "Utah Standards of Professionalism and Civility." Lastmodified 2003. Accessed July 16, 2012. http://www.utcourts.gov/courts/sup/civility.htm.- Podgers, James. "Preserving Court Funding Will Require Effective Political Efforts by the Judiciaryand Its Allies." ABA Journal. (2012).http://www.abajournal.com/news/article/preserving_court_funding_will_require_effective_political_efforts/ (accessed September 4, 2012).- Smith, Jennifer. Wall Street Journal, "Court Funding Crisis and Preservation of the Justice System: 15
  16. 16. Justice Delayed, Lawyers Unpaid?" Accessed August 27, 2012.http://blogs.wsj.com/law/2012/02/09/justice-delayed-lawyers-unpaid/.- Sunshine, J., and T.R. Tyler. "The Role of Procedural Justice and Legitimacy in Shaping PublicSupport for Policing." Law & Society Review. 37. (2003): 513-547.- Tyler, T.R. Why People Obey The Law. New Haven: Yale University Press, 1990.- Tyler, T.R., and Y.J. Huo. Trust in the Law. New York, NY: Russell Sage Foundation, 2002. 16