Budgets and staffing slashed, courts brace for prolonged pain

Issue December 2009 By Bill Archambeault

Across the state's court system, the effects of drastic budget cuts can be seen and felt in everything from long lines at clerks' windows, to delays in sending out summonses, to the temporary relocation and consolidation of courthouses.

In the Probate and Family Court, staffing cuts have reduced per diem positions to the point that judges occasionally have to step down from the bench when a court officer is called to another courtroom to provide security.

The Probate and Family Court announced in mid-November that it will temporarily close its Concord session starting Jan. 1 - the latest of several court sessions to be closed system-wide - and will remain closed until staffing levels increase (see notice on page 7).

And Land Court staffing levels have dropped so low - under 50 percent of being fully staffed - that volunteers from the Administrative Office of the Trial Court are pitching in to help open mail and begin processing the 100 to 125 bankruptcy foreclosure complaints arriving each day. When adequately staffed, it takes between six and eight weeks to handle cases. At current staffing levels, it's now expected to take six to eight months.

"We are definitely at a breaking point in the judiciary. There's no question about it," said Land Court Chief Justice Karyn F. Scheier, who said some of the achievements accomplished in the post-Monan era could be at risk if slashed budgets are prolonged, or deeper cuts are made. "And that would be a shame, because people have worked so hard" to improve the ways the courts function, she said.

Layoffs, hiring freeze are toughest cuts

Judges, registers, court officers and secretarial staff are feeling the effects of a strict hiring freeze, just one of many cuts that Chief Justice for Administration and Management Robert A. Mulligan has enacted to make up for the $51.1 million-dollar drop from the initial fiscal 2009 funding level of $605.1 million to fiscal 2009's $583.7 million budget and fiscal 2010's $554.0 million budget. (The courts are requesting a $562.2 million budget in fiscal 2011.)

Mulligan's goal is to operate at 85 percent of full court staffing. Operating below 80 percent causes problems, he said, but currently, the Trial Courts are operating at around 74 percent. The only court above the 85 percent mark is the Superior Court, at 94 percent. At the other end is the Land Court, at just 47 percent.

"This problem of lower staffing is certainly going to affect our ability to get the work ready for judges," Mulligan said.

Layoffs, a hiring freeze and the cancellation or renegotiation of courthouse leases are just a few of the reductions made since last year. Negotiated increases for union members are going unfunded. In-state travel has been restricted and out-of-state travel has been prohibited. Contracts for alternative dispute resolution providers have been canceled. The assignment of guardians ad litem has been limited. Law libraries and Trial Court departments have cut their reference materials and subscriptions. Even the bottled water contract has been eliminated.

The courts did receive some encouraging news at the end of the legislative session in November, however, when the Legislature restored money to several accounts, including: $4.17 million for probation, $950,000 to the Trial Court reserve account and $300,000 for the Office of Community Correction, increasing the total Trial Court budget to $559 million for fiscal 2010.

"This restoration of funds ensures continued operation of vital probation functions that ensure public safety across the state," Mulligan wrote to court employees recently.

The Legislature also adjourned full formal sessions without acting on Gov. Deval Patrick's request for authority over the judiciary budget.

"We believe that the significant expense reduction measures taken by the courts to address the Commonwealth's fiscal situation have demonstrated responsible and aggressive oversight. We are pleased that the Legislature supported our efforts by declining to give budget authority over the judiciary to the executive branch," he wrote. "We greatly appreciate the Legislature's strong support of the delivery of quality justice to the citizens of Massachusetts."

Supreme Judicial Court Chief Justice Margaret H. Marshall warned that "justice is in jeopardy" during her 10th Annual Address to the Legal Community on Oct. 21, fearing further cuts would be made to the court budget to help ease the state's budget shortfall. She pointed out in her speech that the court system was being subjected to disproportionately large cuts, and she continues to note that the courts have done more than their share.

"From the moment this fiscal crisis became apparent, Chief Justice Mulligan and I committed to work cooperatively with the other two branches of government to do everything we could to reduce costs in the judicial branch" while continuing to fulfill their responsibility to provide justice, she said in an interview. "What we have done, I think, has been impressive."

The judiciary is the only branch of government, she said, that can claim to have enacted a hard hiring freeze by not adding a single person to the payroll since 2008. Unfortunately, there is a cost.

"It's beginning to have a real impact. There is considerable strain on the system," she said, worried about trying to withstand any additional cuts in fiscal 2010 and 2011.

"The difficulty is going forward," she said before the legislative session ended. "It is simply not possible to operate in the way we have been operating for the last quarter of a century if reductions of the size the governor is talking about need to be absorbed by the court department. We simply cannot do it."

An overhaul of the court department in the wake of the Monan Committee Report led to significant improvements in areas like reducing delays and case backlogs, improving technology and evaluating judges.

"We were lucky that we had five years of really spectacular results in moving this system forward," she said. She acknowledged, however, that certain areas are "in danger of slipping back" if court budget cuts are sustained or deepened. "We are really under tremendous stress."

Despite the recent legislative action, Mulligan said there is still reason to be concerned about the Trial Courts' financing for the rest of fiscal 2010 and the upcoming fiscal 2011 budget, including the possibility that the state's economy could worse significantly.

And the cuts already made could be compounded by the fact that the courts are budgeted to receive $53 million in retained earnings - $27 million in filing fees and $26 million in probation fees - money that the courts have to collect to be able to keep and spend. But with drastic staffing shortages, collecting the fees becomes even more difficult. Based on collections so far, Mulligan estimates that the courts will lose about $3 million of that money.

"Whatever we don't collect is money we don't have to sustain our operations," he said. "And that's going to be hard for us to reach."

Tough decisions

Last November, Mulligan agreed to salary increases of three percent each year for three years with Local 6's 3,500 employees. The Probation Department is running about $3.5 million short of projections, and Local 6 members are re-voting their contract. As a result, either everyone in probation agrees to take an eight-day furlough by the end of February or 60 positions will need to be cut.

The courts simply don't have any good options for cutting large chunks out of the budget. Any significant additional cuts will mean hundreds of layoffs on top of the 600 positions already lost this year. Mulligan estimates he's saved about $3 million in fiscal 2010 by renegotiating leased courthouse space or closing sessions entirely.

But he's run out of stones to turn over, and yet, the state's economic prospects remain grim.

"We're gong to have to look hard at other courthouses to close. The public will have to expect that we're not gong to have 100 courthouses (statewide) a few years from now. There are going to be lines at counters. We have fewer personnel to manage the clerks' offices," Mulligan said, noting that up to this point, the courts have been able to continue operating without a "great impact" on the quality of justice provided. But things can't continue without a real impact being felt.

"I'm hopeful we're going to be able to deliver justice five days a week, but I can't guarantee that," he said. "We really are in a crisis mode in a lot of our courts right now."

The message being delivered to the nearly 7,000 remaining court employees statewide is a sobering one through fiscal 2011 and possibly 2012.

"They need to be in the mindset that we're in this mode of dealing with few resources for the foreseeable future. We don't see any light at end of tunnel," Mulligan said. "This is a difficult situation for all states and judiciaries. What I'm hearing is that this is going to be a long, slow recovery."

Even allies of the justice system give little reason to expect that funding for the courts will improve anytime soon.

"In bad fiscal times, we know there is increased pressure on the justice system, with more individuals requiring access and more activity within the court system to process and resolve cases," said Sen. Cynthia Stone Creem, the Senate chair of the Joint Committee on the Judiciary and a member of the Senate's Committee on Ways and Means. "There are strains on every aspect of government now, including the courts. Unfortunately, state revenue is likely to decline through FY11, and the Legislature is aware of its heightened responsibility to adequately fund all core government departments and services."

Staffing down, filings (and frustrations) up

The Land Court's Scheier said she's not sure what will happen if additional cuts are made.

"We're constantly trying to figure out how to improve efficiencies, but that's about the best you can do right now," she said. "It's always sort of a triage situation when you're so poorly staffed."

Another significant problem, she said, is the ban on hiring any new law clerks. Being down a couple of clerks is already adding to the pressure to meet time standards, she said, by delaying the scheduling of sessions and issuance of decisions. "Law clerks are crucial to the judges to get their work done in a timely way."

To help fill some of the staffing gaps, volunteers from the Administrative Office of the Trial Court are going to various courts one day a week to help out with mounting workloads. While not the same as being fully staffed, the volunteers' efforts are helping, both in preventing workloads from falling too far behind and simply reassuring regular staffers who may be feeling burned out.

"It's helpful to the morale of our people, who feel that they're digging out of a hole," Scheier said.

In Probate and Family Court, filings are up 3 percent overall from last year, and have increased 8.7 percent since fiscal 2005. While some individual categories, such as total probate filings (down 3.2 percent from last year) have dropped, most categories are rising: total paternity filings are up 9.3 percent, total divorce filings are up 4.1 percent and total child welfare and "family" filings are up 6 percent.

Chief Justice Paula M. Carey noted that the increase in filings and drop in staffing - 8.5 percent since October 2007 - are delaying things like the issuing of summons on modifications and filing of decisions. In Hampden County, there is just a half-time secretary handling work for four judges.

"There's a delay in getting decisions out," she said. "It's just an untenable situation."

And holdups are starting to wear on people who already struggling with tense legal problems.

"It's a significant problem in our court. People are on edge. It's difficult when people are under severe economic stress. They are understandably upset," she said. "You'll see lines out the door. It's a never-ending line of people, all of whom need to be helped. It's becoming more and more difficult."

Prioritizing workloads and improvements in technology have helped manage the situation so far, she said, but ultimately, a minimum number of staff is needed to make the system run effectively.

"There's only so much you can push people, and we've pushed people as much as we can. Employees have more than risen to the occasion. They're a tremendous group of people. But we can't withstand any further cuts and deliver justice the way we want. I don't know how much longer we'll be able to do that."

At Essex Probate and Family Court, Register Pamela Casey O'Brien has seen her staff shrink from 47 to 30.

"What that translates to for the public is reduced services. I try to get out summonses or citations the next day," she said, noting that it's now taking two or three weeks. "That delays everything down the line. If you can't get the notice to the other party, the case doesn't start."

Lines are noticeably longer, she said, and more complaints are coming in.

"Lawyers are very well aware that there are additional delays. They've been understanding of it, to a certain extent," she said. For the public, the level of frustration depends on what type of case is being held up, she said.

"If a custodial parent is not getting their support, they're more frustrated at the delay," she said. "There's a noticeable difference compared to how we've been staffed in the past. The general public is more frustrated in why it's taking so long."

O'Brien has "completely" rearranged her staff and the way they operate, she said, to prioritize certain functions. As it is, she's also relying on help from half-a-dozen volunteers in the Administrative Office of the Trial Court to help pick up the slack.

But layoffs and attrition put additional pressure on the remaining staff, she noted, particularly when illnesses and deaths in the family cause additional staffing pressures. Creative responses like having the volunteer staff come in, as well as the quality and dedication of the remaining regular staff, she said, will only go so far if additional cuts are made.

"I think it would be devastating to the public if we go any lower with staffing than we are right now," she said.