Section Review

Judicial Independence, Government Accountability, and the Separation of Powers

Margaret MarshallMargaret H. Marshall is chief justice of the Massachusetts Supreme Judicial Court.

This article is a condensed and slightly revised version of an address given to the Massachusetts League of Women Voters on Oct. 5, 2002.


Judicial independence, so crucial for securing human rights, cannot exist, and should not exist, apart from the richly textured weave of accountability that is the fabric of a people's government. But "judicial accountability" is a malleable concept. Certainly, on one level, it means the responsibility of individual judges to follow the rule of law; that is, the accountability of judges for the integrity and fairness of their decisions. On this score, Massachusetts judges have historically been outstanding. The Massachusetts judiciary and its long tradition of excellence is well known to jurists and scholars from Siberia to Israel to Australia. Our judges bring to the difficult task of adjudication a fidelity to the rule of law and a profound respect for the parties before them. They do not look over their shoulders when they decide a case. They do not consult opinion polls. Their polestar is the will of the people embodied in the laws of the land and in our commonwealth and federal constitutions.

But adjudicative accountability, decisional accountability, is but one measure of judicial accountability. Surely another is administrative accountability, the ability of our judicial branch to deliver justice "freely . . . completely, and promptly." This is not a novel concept. I have just quoted from the words of John Adams, embodied in our Massachusetts Constitution. Unfortunately, when we consider the issues of administrative accountability, the picture is not a bright one, for complex reasons tied at least in part to the way our courts, over many decades, have been funded and directed from the outside.

Let me first consider the issue of funding. Our Constitution vests the legislature with the exclusive power to tax and to appropriate funds. In the past year, the treasury of the commonwealth of Massachusetts has been decimated by a shrinking revenue base, as have the treasuries of every other state. State funds are dangerously, precipitously, low. This dismal situation is confounded by the fact that, at the very moment when states are least able to help their citizens, the federal government has shifted more and more responsibilities to the states. The combination has made the legislature's task of managing the public fisc crushingly difficult.

I well recognize the challenges. Money simply isn't available to do everything that surely we would all agree needs to be done: securing prescription drug benefits for the elderly, improving our schools, enhancing public security, providing an adequate safety net for our poor. I acknowledge that in setting the amount of money available for the judicial branch, the other two branches of government must weigh the needs of the courts against other pressing public needs that must be met from our devastated treasury.

At the same time, the Massachusetts Constitution requires that the judiciary, the executive, and the legislature, working interdependently, must assure that the justice system functions fairly, impartially, and cohesively. The judiciary cannot be permitted to operate below the level of funding that will allow it to meet the public's expectations of fairness and justice. We are dangerously close to that breaking point. This year, the legislature allocated funding to the judiciary that is substantially below the level that the judicial branch requested to meet the minimum needs of our trial courts. The results are devastating. Since the summer, courtrooms across the commonwealth have closed sessions and cases have been postponed because our courts lack money for translators and court stenographers. Cases involving the mentally ill and children in need languish on the dockets because our courts lack money to pay for guardians ad litem. Judges have had to make do without law clerks, who provide them with vital research services, or to substantially reduce their law clerks' hours, which means that it takes much longer to issue opinions. In order to stave off massive layoffs of court personnel, the Chief Justice for Administration and Management for the Trial Courts has left many court vacancies unfilled, instituted a voluntary early retirement program, and required a mandatory reduction in employee work hours . In consequence, nearly 1,000 employees have left the court system last year and this because there was not enough money to pay them. These are the men and women who file and maintain cases, who keep our courthouses safe, who type up opinions and answer people's questions, and who keep our court facilities clean. Their loss means fewer people to do the work, more delays in the administration of justice, more frustration for litigants and jurors.

Hard as this situation is, it is made harder by the arbitrary, illogical way in which money for judicial branch funding is required to be distributed. Funds are directed to certain courts that are adequately staffed for basic services while other courts are crippled by inadequate resources. By statute, the judiciary, with narrow exceptions, has no authority to transfer funds between or among court departments to correct such situations. We need that authority.

Let me be clear. I am not asking that the legislature write the judiciary a blank check. I am not asking that the judiciary be exempted from accountability. I am not asking that the executive or the legislature abdicate their obligations to ensure that every dollar allocated to the judiciary is spent rationally and well. But where the judiciary's funding has been cut so close to the bone, we need the latitude to channel our scarce dollars to where ever they are most acutely needed at any given time.

In the debate over court funding, we have all heard a good deal about the so-called patronage issue. But the focus on patronage misses the point. Misallocation of resources is the real problem, misallocation at a time when there are insufficient funds and everyone has to make do with less. If you were forced to choose between spending scarce dollars on food and spending them on clothing, most of you, I suspect, would put up with a tattered sweater in order to put dinner on the table. But what if you had a limited amount of money, and you were only permitted to use it to buy clothing, not food? How many of you would consider that a defensible rule?

Surely no one likes lay-offs. I well recognize why any elected official would want to respond when a courthouse in his or her district faces staff reductions. We elect politicians to go to bat for us in exactly these kinds of circumstances. But in times of deep fiscal crisis, all of us in government have an obligation to the entire body politic to recognize that the individual interests of one courthouse or one set of employees may not be compatible with those of the judicial system as a whole. Justice for all is not a slogan; it is a constitutional imperative. We must meet the needs of our justice system where we actually find them. We must ensure that no court and no judicial office fall below the standards required for the fair, equal, and prompt delivery of justice. Once all Massachusetts courts function with adequate basic resources, but only then, should we take the next step, if we have the funds, of building on what we have.

This brings me to the issue of management. Funding inequities that have long become irrational are made even more troubling by the peculiar way in which key administrative responsibilities have been carved out of the courts' jurisdiction. Massachusetts has perhaps the most complex and Byzantine management structure of any judicial system in the nation. It is a modern management nightmare. We need to re-think that structure from the ground up. We need to rebuild it so that the judiciary has the flexibility and discretion to target resources in the most responsible fashion. We must clarify lines of authority, and with them the lines of accountability, so they are transparent to all.

Our courts have been criticized by the executive and legislative branches - and others - for being slow and inefficient. I welcome that criticism. I learn from it. I know that justice delayed is often justice denied. I know we can do better. But one cannot demand that the judiciary get its house in order, then make it impossible for us to do just that. For the judicial branch to better the administration of justice in an era of dizzying social and technological change, we need the ability to govern our own affairs to the fullest extent allowed by our constitution - because we simply cannot separate the issue of whether justice is delivered from the issue of how justice is delivered.

It is incumbent on the judicial branch to articulate its core adjudicative and administrative responsibilities and to propose a roadmap to meeting those responsibilities, a roadmap that holds us strictly accountable for every cent of the citizens' money we spend. This we will do both forcefully and cooperatively. The legislature and the executive have been great champions of the judiciary. In the late 1970s, spurred on by a broad-based coalition, legislators passed important laws that reorganized and centralized the authority of the judicial branch over the individual trial court departments. Again in the early 1990s, when our courts were woefully underfunded, the legislature responded with needed funds. Recently, legislators allocated much-needed funds for enhanced courthouse security. The executive has committed millions of dollars in capital funds to rehabilitate our ailing courthouses and to build new courts.

Efforts such as these have made a real difference in the courts' ability to administer justice. Let me mention just one example. For many years, Boston Juvenile Court sessions were held in a dark, dirt-crusted, dilapidated corner of a century-old courthouse famous for its bad air quality. The depressing nature of the physical space communicated to all who went there a most punitive, oppressive idea of justice. Today, those same Boston Juvenile Court sessions are held in the new Edward Brooke Courthouse on New Chardon Street, an airy, user-friendly, and wholly dignified public space. The results? By all accounts, many juvenile offenders have developed a more positive attitude toward the court system as a whole and have been more willing to entrust themselves to the rehabilitative promise of juvenile justice.

The triumph of the Brooke Courthouse exemplifies how the practice of justice grows stronger when lines of communication between the judiciary and the legislature and the executive are open, clear, and respectful. This kind of inter-branch communication is important at all times. It is particularly crucial in times of diminished state resources. I can promise you without qualification that I shall never engage in name-calling, or in personalized and vindictive attacks, as a way to assert the judiciary's needs. My reticence might frustrate some supporters of the judicial branch, but to my mind, pit-bull tactics are not legitimate in the critical debates about judicial funding and judicial management. Instead, I shall continue to work cooperatively and courteously with the executive and the legislative branches.

There are no easy answers. No arm of government has a lock on the all the right responses to the question how best to deliver justice in our complex world.

In shaping our judiciary to meet the needs of the 21st century, I do believe that involvement of the representatives of the private sector, community organizations, and public interest groups is crucial. Just as they have in decisions concerning Logan Airport and the reformation of statehouse administration, private citizens can help inform the discussion about advancing the judiciary's core missions. Recently I assembled a committee of some of the finest management and fiscal minds in the commonwealth into a Visiting Committee on Management in the Courts to assess the managerial practices and policies of the court system and make recommendations to improve the delivery of service in the administration of justice. Committee members, chaired by J. Donald Monan, S.J.. Chancellor of Boston College, are prominent citizens who have been elected or appointed or promoted to positions at the highest levels. They have collective decades' worth of experience successfully running large institutions, both public and private, managing huge sums of money, both public and private, and planning for change and development. It was not easy to convince these individuals to donate their scarce time to assisting the courts, but they have. The members of the Visiting Committee will conduct interviews with members of the judicial branch and the citizens we serve, they will review documents and speak to experts, they will look at best practices elsewhere, and in six months they will report to the justices with concrete suggestions for reforming judicial administration. I eagerly await their findings.

I have heard it said that justice is like oxygen. When it is flowing freely, no one notices. When the supply gets cut off, it may well be too late to notice. By focusing on the delivery of justice as well as on the ideal of justice, we can all take action to ensure that justice in the commonwealth of Massachusetts flows freely for many generations to come.

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