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March

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Lawyers Journal

Challenges to be met

Lawyers need no reminder that justice is the linchpin of democracy. It is the great equalizer of society that allows the rich and the poor, the educated and uneducated, the strong and the weak, to stand without distinction in the lively light of the constitution and our body of laws.

Judicial independence is one of the founding principles of our Republic. Today, the independence of our courts is being challenged by the ominous overreaching of the Massachusetts legislative branch. The ability of our courts to administer justice impartially is being called into question. When impartiality, or the perception of it, is compromised by a lack of adequate funding for the basic operation of our courts, democracy is threatened, because individuals no longer come before the court as equals. We, as lawyers, cannot allow this possibility to become reality.

Judicial independence has been defined in many ways. Basically, it is the freedom to make decisions without interference or influence from any source. Fairness and impartiality is the constitutional right of all citizens.

The judiciary is a third and equal branch of government. There is a distinct difference from the elected executive and legislative branches. Judges don't serve at the popular will of the people. Judges represent the rule of law and the upholding of the constitution. The genius of our system is the balance built into our governmental structure.

Massachusetts Supreme Court Chief Justice Margaret H. Marshall, in her address to the MBA annual conference closing luncheon in January, quoted United State Supreme Court Chief Justice C. J. Rehnquist's remarks in the 1996 year-end report to the Federal Judiciary, in which he remarked, "I am struck by the paradox of judicial independence in the United States; we have as independent a judiciary as I know of in any democracy, and yet the judges are very much dependent on the Legislative and Executive branches for the enactment of laws to enable the judges to do a better job of administering justice."

As in the case of our federal government, the judiciary in Massachusetts is dependent on the legislative branch for the funding of the court system. The severe under-funding of the budget for the courts will have a significant detrimental effect on the administration of justice in this commonwealth. Chief Justice Marshall noted that the viability of our justice system depends on the totality of what is observed and experienced in our courts.

Inadequate funding will result in a denial of equal access to justice by those who are most in need. For example, some of our newer immigrant citizens require interpreters to understand and to be understood when interfacing with the courts and to communicate with court personnel. It is not a luxury to understand and be understood, it is a fundamental right. Yet, budget cuts will result is the laying off of many court interpreters, thus cutting off many new citizens' chances to participate fully in the legal process.

The budget shortfall presents a monumental challenge to our judicial system. Lawyers need to join with Chief Justice Marshall in accepting the challenge to protect the judicial independence of our judiciary. We need to be informed of the specific needs and to communicate with Acting Gov. Jane Swift and members of the legislature. Oliver Wendell Holmes was quoted as stating, "The great thing in this world is not so much where we are, but in what direction we are moving." The members of the Massachusetts Bar Association need to lead the effort to properly fund the administration of justice in this Commonwealth. We need to rise to this occasion.

©2014 Massachusetts Bar Association