Justice suffers again in Senate budget

By: - May 29, 2014 1:15 pm


There’s plenty to parse in the Senate budget proposal released last night, but when it comes to the fiscal concerns affecting justice and public safety, here are the themes looming large.

Starve the courts

In February John Smith, the director of the Administrative Office of the Courts, made a modest request for appropriations, noting nonetheless that the courts had been stripped to the bone with personnel and crippled by outdated technology. That happened even though the courts collected more than $800 million distributed elsewhere — to the state’s General Fund and other state agencies, local and county governments, public schools, and citizens entitled to payments or restitution.

As Smith noted, the AOC had already eliminated more than 600 positions through attrition, voluntary reductions-in-force programs, and involuntary layoffs, and had deferred hiring for nearly 700 positions determined to be essential under workload formulas developed in consultation with the National Center for State Courts.

Funding for court technology had also been slashed by 40% over the past three years, from $45 million in 2011 to $27 million in 2014, “crippling statewide implementation of existing piloted technology and choking off adoption of new technology.”

In the face of a system teetering on the brink, Smith asked only for a long overdue restoration of pay plans and steps for clerks and magistrates and roughly $2 million for technology initiatives (a little over $1 million to update the criminal court information system, and $800,000 to begin digitizing pre-2007 microfilm records.)

(The director also asked for a little over $200,000 to fund three authorized Assistant District Attorney positions and approximately $140,000 for an investigator and DNA testing needed by the Innocence Inquiry Commission.)

The governor’s budget appropriates sufficient funds to cover each of those requests.

But the senate budget does just the opposite. It provides only for a one-time step increase for clerks and magistrates.

Everything else is more cuts: another cut to the AOC technology budget, this time by 24 percent – bringing that budget down from $45 million in 2011 to $12 million by 2015 – and a further across-the-board five percent cut to areas other than technology.

Strip the Attorney General

There’s no love lost between Attorney General Roy Cooper and members of the General Assembly. Cooper has publicly voiced his personal disapproval of certain state laws and lawmakers have responded by trying to usurp his authority in pending litigation.

The Senate is now taking that turf war to another level, announcing with its budget the move of the State Bureau of Investigation and State Crime Lab out from under the auspices of the Attorney General and over to the Department of Public Safety, with a new director to be appointed by the Governor and approved by the General Assembly.

The roughly $45 million appropriated for SBI and the Crime Lab and 638 jobs likewise travel from Justice to Public Safety.

A proposed SBI move was widely criticized and rejected last year as politically motivated and a threat to the independence of investigations – particularly those involving allegations of public corruption.

The Attorney General renewed those objections in May and in this statement, released today:

“For 75 years an independent SBI has without bias rooted out corruption in the executive and legislative branches. With this move the legislature protects itself and the Governor at the expense of government integrity, and ignores North Carolina law enforcement’s opposition.”

Moving the SBI and State Crime Lab aren’t the only shots the Senate takes at the Attorney General.

In certain instances the Senate limits the AG’s ability to retain private counsel to assist with pending litigation or transfers that authority to state agency heads instead.

It also hamstrings the Attorney General’s ability to enter into lawsuit settlements which might involve an award of funds beyond a party or a consumer entitled to a recovery. While the exact purpose of this provision is unclear, its impact may extend to multistate settlements often negotiated among state attorneys general to remedy broad wrongs, many of which call for the creation of educational or other purposed funds – recently, for example, in cases against banks arising out of mortgage-lending practices.

Command the judges

In an obvious response to the rash of lawsuits filed this past year challenging the constitutionality of laws enacted last summer – vouchers, teacher tenure, voting rights for example – the Senate has circled the wagons and drawn up new rules to be followed by litigants and judges alike.

Under the senate proposal, all constitutional challenges to state laws will be heard in Wake County by a panel of three judges selected from different parts of the state by the Chief Justice (similar to the process with redistricting challenges).

Trial court orders temporarily blocking enforcement of a state law challenged as unconstitutional must be automatically stayed (meaning that the challenged law remains enforceable while appeals are pursued).

And court orders holding that a state law is unconstitutional on its face will be directly appealable to the state Supreme Court – bypassing the Court of Appeals.

Punish the indigent

Assistance for the poor struggling through the justice and public safety systems and relief for those agencies and organizations trying to help is nowhere to be found in the Senate budget.

The state’s public defender corps is struggling to pay the contingent of private assigned counsel hired to help represent those who can’t afford a lawyer.

The governor’s budget appropriates a one-time payment of $3.5 million to cover a shortfall and get those attorneys paid in a more timely fashion.

The senate budget appropriates nothing.

The governor’s budget appropriates a one-time payment of $350,000 to update the public defender’s outdated case management system.

The senate budget appropriates nothing.

In a similar vein, the Senate reduces the Indigent Defense Service’s administrative budget by 10 percent

It eliminates state funding for the NC Victim’s Assistance Network.

It eliminates Access to Civil Justice funds that pass through to the State Bar and are used to fund legal services for low-income residents

And, consistent with the growing national trend of imposing court fees on defendants then jailed for their inability to pay, the senate budget creates yet another such fee, a $600 crime lab fee, to be charged to convicted defendants.


Update: AOC Director John Smith provided the following response to the Senate’s budget proposal:

We have reviewed the Senate proposals and concur that pay raises for our employees is of the highest priority. However, we are distressed that the Senate has chosen to pay for those much needed raises by imposing further severe cuts to the court system. To cut technology by 24% will be disastrous to an already underfunded and overstressed judicial system. To expect that operating costs can be reduced by an additional 5% after five years of implementing efficiencies and after absorbing millions in cuts is ill-conceived.  Our technology and staff provide daily support to our 6,000 employees and 101 county courthouses. To expect this level of cut to be implemented with no more than five weeks to prepare and without any meaningful discussion is unrealistic. We hope that the Senate will take a second look at the needs of the courts. The ability of the judicial branch to keep courts open and maintain services is seriously compromised by this approach.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.